Water is life to the Native American tribes of the arid Southwest, and is at the heart of a decadeslong legal and cultural struggle by two Arizona tribes to secure enough water to ensure their future.
The Navajo Nation and the Hopi Tribe, which occupy contiguous lands in the Four Corners region, have sought for decades to secure sufficient water to sustain and grow their respective communities. And now, two pathways for doing so are moving forward, albeit slowly.
Both tribes have claims to the Little Colorado River and its tributaries, and are two of the 33 major claimants in the long-running Little Colorado River Water Rights Adjudication. The case, filed in Apache County Superior Court, Arizona, in 1978, names nearly 2,000 claimants seeking water rights from the river. They range from small farmers and ranchers to several Northern Arizona cities – and all the way up to the United States government.
Water settlements are desperately needed, as adequate and clean drinking water is hard to come by for many members of both tribes. About 40 percent of Hopi homes still have no running water, and around 30 percent of Navajo homes must haul their water as well, according to the U.S. Environmental Protection Agency. Tailings from uranium mines have contaminated wells in the western part of the sprawling Navajo Reservation, and many water sources on Hopi lands have four times the accepted safe levels of arsenic.
In 2012, in an effort to speed up a settlement for the tribes, Sen. Jon Kyl, R-Ariz., introduced a bill to settle the two tribes’ rights, which would help them bypass the long-running adjudication. Among other provisions, the bill would have authorized a groundwater project to deliver water to Western Navajo communities and to Hopi villages. It also would have authorized the delivery of Colorado River water to each tribe.
Kyl and Sen. John McCain, R-Ariz., held meetings in 2012 in the Tuba City Denny’s restaurant and the Legacy Inn in Moencopi with tribal leaders. The public, however, was excluded.
“We had issues with that,” said Hopi tribal member Lawrence Hamana, who, along with fellow Hopis Vernon Masayesva and Ben Nuvamsa and activists from the both the Hopi Tribe and Navajo Nation, shut down the talks. “We stopped these secret negotiations; we told them ‘no.’” The senators withdrew their legislation, and progress stalled for a few years.
The grassroots groups, including Masayesva’s Black Mesa Trust, Nuvamsa’s KIVA Institute and Diné C.A.R.E., contend that the tribal governments are treating water like a commodity to be traded, sold, negotiated and fought over – anathema to traditional Native American beliefs. “Water is sacred – it is our life,” Masayesva said. “It is the breath of every living thing.”
The groups were also concerned that they were giving up their historic rights to the Little Colorado River in exchange for rights to groundwater in the underlying N Aquifer and the water supply project, which they weren’t sure the federal government would ever actually build as promised.
Further complicating the issue is that many grassroots groups also believe that too much of their water is being sacrificed for mining and energy operations.
A recent decision to close the Navajo Generating Station, the largest coal-burning power plant on in the Western U.S., was also a factor in a potential settlement, said Hamana. “We are providing electricity for the Central Arizona Project, Southern Arizona, California and Nevada, and we’re not getting anything out of it,” including any of the electricity generated from the plant.
Plants like the Navajo Generating Station and the now-closed Mohave Generating Plant consumed a tremendous amounts of water, he said, as do continued hard rock mining operations. “Nobody can account for the water,” Hamana said. “Our washes and springs, which we depend upon for religious activities and agriculture, are going dry.” And a 19-year drought hasn’t helped, either.
In 2015, Navajo Nation President Russell Begaye and McCain suggested to Hopi Tribal Chairman Herman Honanie that resuming negotiations with the goal of reaching consensus on a fair settlement was in everybody’s interests. Honanie agreed. However, both tribes declined to comment on the current discussions because of a confidentiality agreement.
The tribes met for a mediation session on May 31. “We appreciate the opportunity to have this meeting and I hope we can move these negotiations forward. We need to be further along in our negotiations at this point,” said Begaye in a statement. “This agreement is the catalyst to moving both nations forward in resolving water rights in Arizona.”
Stanley Pollack, a Navajo Nation assistant attorney general who serves as a consultant to the Navajo Nation’s Water Rights Unit and who has been involved in the litigation since 1985, said that some factors contributing to the drawn-out process are the frequent changes of judges and the sheer volume of documents requiring review during any negotiations.
A settlement, however, could be on the way: The 1978 Little Colorado River Water Rights Adjudication case will finally begin trial in the fall of 2018, according to Pollack. But it won’t solve all the tribes’ problems. “It would not result in any funding for any water settlement,” he said, as the court has no authority to appropriate funding to implement its verdict.