Since the Navajos voted down the Navajo-Hopi Little Colorado River Water Rights Settlement last month, presumably stopping its progress, leaders from both tribes have been lamenting the loss of a clear path to clean drinking water that the settlement had promised.
But the settlement also contained a hard-won agreement between the Hopi and Navajo tribes that would have helped to regulate the use of a shared aquifer. And as the dust settles, representatives from both tribes are beginning to wonder whether that plan could be rescued from the rubble.
The plan was outlined in four pages near the middle of the 100-page settlement, and it represented a rare consensus between the tribes on an issue that more often brings out their differences.
According to Hopi estimates, they’re using one sixteenth of the N-aquifer water that the Navajo tribe is using. That differs from a 2009 U.S. Geological Survey report showing the Navajos withdraw just under four times what the Hopis do.
Jason John, principal hydrologist with the Water Management Branch of the Navajo Nation Department of Water Resources, said the truth could lie anywhere between those estimates; the USGS survey doesn’t necessarily include the entire N-aquifer use area.
Either way, the Hopi goal in an aquifer management plan would be to establish a sustainable volume for use, and then allocate 40 percent of that figure for themselves. Such an effort is one more aspect of securing a Hopi water future, said Micah Loma’omvaya, chief of staff for Hopi Tribal Chairman LeRoy Shingoitewa.
“We’re at the heart of the N aquifer. If all these other straws deplete it … we’re stuck without a reliable water source for our homeland,” he said.
Many more Navajo travel stops, restaurants, hotels and stores dot the highways on the Navajo stretches of the roads that bisect both reservations in the N-aquifer region – and the Navajo Nation receives a significantly higher economic benefit from industrial use of the aquifer by Peabody Coal.
“At Hopi we haven’t overused it for commercial or industrial purposes,” Loma’omvaya observes.
John says discussions about fairness tend to get divisive when it comes to the aquifer.
For example, “Right now, most of the mining activity is on Navajo partition lands and Navajo trust lands, but the royalty gets split 50/50 with the Hopi Tribe. That’s just one of the discussions we’ve had about fairness,” he said. “The Navajo population is much larger than Hopi in that area. The fact that Navajo has a business at Pinyon and the fact that the Hopi tribe doesn’t have businesses at their villages in Pinyon – is that something that Navajo should be embarrassed about, or stop?”
Speculation abounds about the fate of the settlement: whether the Navajo Nation Council’s denial of it will stop a decade of negotiations in their tracks, or if it can be salvaged without some of its more controversial provisions. If the settlement is pronounced dead, both tribes could find themselves back in court, where decades of tedious litigation have failed to produce a settlement nearly as comprehensive as the two that have been proposed so far.
The Hopi are wary of the legal system, given that they claim no residents in the county where deliberations would take place.
“We don’t want to litigate,” Loma’omvaya said. “We don’t see litigation in an Apache County courtroom as an appropriate context to get what we need.”
On that point, the Navajo Nation’s John heartily agrees, especially when it comes to something like managing a shared aquifer: “If we don’t have these agreements now, as time goes on both sides will continue to use more water,” he said. “If it ends up in state court we’re afraid that a judge not familiar with Navajo or Hopi could make a decision that would be difficult for one or the other tribe.”
And, he points out, there’s an even bigger-picture concern that could affect Indian country as a whole. As far as he knows, no two tribes have ever gone to court to settle water priority claims dating to time immemorial, as the standard is often used for Native communities.
“It could be something that is precedent-setting in some respects, and it could do a lot of damage to other tribes,” John said.
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