Regarding Navajo Water Rights

By Nikke Alex

April 17, 2012

Last week both Arizona Senators visited the Navajo Nation to persuade tribal officials that they should agree to waive most of Navajo claims to the Lower Colorado River in order to receive $350 million worth in water development project. During their visit they ensured the Navajo Nation president and council that there was no trickery involved and that they are negotiating this agreement in “good faith.”

But when two esteemed Republican Senators take time out of their busy schedules to visit the Navajo Nation in order to persuade tribal leadership with millions of dollars worth of development aide and other goodies, one has to assume something else is happening. In fact, a lot is happening here, and it is important that the Navajo people understand some of the larger issues influencing this settlement.

In this editorial, I offer four critiques of the settlement: 1) this is a poorly planned settlement; 2) it fails to address climate change; 3) it is the product of political and economic blackmail; and 4) scale, sustainability and planning for future water are not considered in this settlement.

1) S.2109 is the product of a poorly planned settlement. The Nation tends to haphazardly agree to random acts of development without a larger strategic plan or vision of how energy projects will impact communities. This settlement is a case in point. The particular water development projects McCain and Kyl have proposed will benefit select communities, but has no vision about how it will integrate water for the whole Navajo Nation or even most of the Western portion of the reservation. We are forever relinquishing claims to the Lower Colorado River for one-time offer of $350 million in water development projects.

Each of the 110 Chapters are supposed to have a Community Land Use Plan in place. However, Chapters do not have plans that address water usage and sustainable uses of it that guarantees water will be around in the communities many generations from now. When communities and Chapters are talking about economic development, water is hardly ever considered but should be at the forefront of the conversation. Before we settle our water claims, we need to do the hard but necessary work of determining chapter needs and arranging a settlement that addresses these.

It is crucial now more than ever for communities to begin crafting Water Plans and Sustainability Plans. But within S.2109, we do not have an idea about how “wet” water made available through these projects will be used. There is an allusion to home use for people who live in the communities of Leupp, Dilkon, and Ganado. But, is industrial-scale residential piping along these lines even the most pressing water issue for the Navajo Nation? How will building this infrastructure serve community members outside of these immediate areas? Will it guarantee water for livestock? Commercial use? Future industry? These are the questions that need to be addressed and understood before any settlement is made.

Perhaps piping at this scale is not an appropriate solution for Navajo communities. It might work for small Arizona towns, but Navajos live differently. There does not seem to be a plan about how these specific piping projects fit into a larger vision of the Navajo Nation 10, 20, 30, or 40 years down the road. But such a plan is absolutely necessary, if we are going to forever waive our claims to the Lower Colorado River.

2) Along these lines, the Navajo Nation has to seriously and strategically think about how it will respond to climate change. Water claims are perhaps the most important part of this thinking. Since the 1970s, the Navajo Nation has had continued drought that has led to increased desertification. The Nation has become one of the driest areas in the United States. We have witnessed how our environment has changed over the past decades. Natural springs have dried up, sand dunes have become more prevalent, and windstorms are more frequent and severe.

The Navajo Nation should demand aide for climate mitigation and adaptation for Navajo communities as part of any water settlement. This is crucial. Climate mitigation is an action taken to reduce or eliminate the long-term effects of climate change. Climate adaptation is how humans and animals adjust to a new and changing environment. The effects of climate change (drought, wind storms, etc) are only going to worsen, and our communities need to plan for a changing environment. As Navajos, we have adapted to a changing environment, but adapting will become more difficult and challenging as water resources dwindle.

3) One of the most troubling aspects of S.2109 is the way the State of Arizona and the Central Arizona Project (CAP) are holding Navajo water hostage for coal and energy from the Navajo Generating Station. Last week, Kyl told the council that CAP would not release water from the Gallup pipeline until the Navajo Nation waives all of its claims to the Lower Colorado River and guarantee an extension of leases for the Navajo Generating Station for another twenty-five years. As Kyl described it, the Navajo Nation must meet these “two conditions…” before CAP will release water for needy Navajo communities. This is holding water we our owed hostage and likely violates international law and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

According to international law, governments cannot collectively punish ethnic minorities, like Indigenous Peoples, for whatever reason. In this case, the State of Arizona and CAP are holding Navajo water hostage from the Navajo people until the Navajo Nation waives its rights to the Lower Colorado River.

This is clearly an outrage and an official complaint needs to be brought to the United Nations. Our water rights attorney has done none of this. Additionally, S.2109 is likely in violation of Article 8 of the UNDRIP, which reads: “States shall provide effective mechanisms for prevention of, and redress for:… (b) Any action, which has the aim or effect of dispossessing them of their lands, territories or resources…” including water. It is clear from Kyl’s testimony that CAP is holding Navajo water hostage.

Finally, the entire premise of S.2109 likely violates Article 32, which reads: “States shall consult and cooperate in good faith (my emphasis) with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with development, utilization or exploitation of mineral, water or other resources.”

Holding water hostage from Navajo peoples is a form of collective punishment and the State of Arizona is not negotiating “in good faith.” The fact that we have not filed complaints under international law demonstrates how outdated and timid our water negotiating strategy has become.

Our water rights attorneys are probably operating from a mindset formed in the era when tribe’s did not raise their voices or pressure settler societies for fairer deals. They come from an era that did not try to utilize international law to a tribe’s advantage and instead operate only according to colonial frameworks, allowing the U.S. Supreme Court to be the final authority on these things. Even if the U.N. cannot enforce its ruling and judgment on the U.S., a ruling against the U.S. will undermine its international credibility and could only lead to better negotiating outcomes for us.

4) Finally, thinking long-term and about the future sustainability of all communities connected to this settlement, the Navajo Nation should demand that the cities of Phoenix, Tucson and their surrounding communities first implement Sustainability Plans before we give up anymore of our water to them. If they continue to waste the Southwest’s limited water supply as they have done up until this point, this will threaten the future of all our communities within one or two generations.

Even if Phoenix and Tucson are physically far away, their actions have direct consequences on our lands and water and it is important for us to address their usage within our settlement. In settlements, both parties are free to include “conditions.” The Sustainability Plans should include a strategy to transition the Central Arizona Project and the Navajo Generating Station toward renewable energy.

The State of Arizona is blessed with over 300 days of sun a year. Why are we still heavily reliant on coal when solar could be installed along the Central Arizona Project irrigation canal? It is time the Navajo Nation demands these metropolitan areas to start living more like Navajos – who use water much more efficiently than their Anglo neighbors – rather than Navajos trying to modernize to waste water like them.

Nikke Alex

Dilcon, Arizona

Nikke Alex is Diné (Navajo) originally from Dilcon, Arizona (Navajo Nation), USA. She has worked with Indigenous communities around the world to help fight fossil fuel development. Nikke has carried out independent research in both uranium and coal mining on the Navajo Nation. Her research focused on the social impacts of mining on Navajo families. Nikke holds a Bachelor of Arts from the University of Arizona in sociology and political science. Nikke has worked at the US Department of Justice in the Radiation Exposure Compensation Program and the US Environmental Protection Agency with the Tribal Science Council in Washington, DC. Currently, she serves as a community resource for grassroots Indigenous groups on the Navajo Nation.