4/24/2012 1:21:00 PM Indian Water Rights - 'complex, obscure and expensive' Both Navajo, Hopi tribal government public forums drawing heavy opposition, non-approval from grassroots
Photo/ Diné Care Association Navajo Tribal Police were out in full force in front of the Tuba City Chapter House April 17 at the Navajo Nation Water Town Hall, hosted by Navajo Nation President Ben Shelly and Vice President Rex Jim. Protestors were not allowed inside with their signs and the chapter house was filled to capacity with 265 people. Many attendees waited outside for others to leave so they could have a chance to go in to hear and see the Navajo Nation’s PowerPoint presentation and to voice their opposition to Senate Bill 2109. SWAT team members with rifles were also placed on rooftops to watch over protesting crowd.
Photo/ Diné Care Association
Big Mountain tribal resident Nicole Horseherder from the Chiishi Clan, spoke to Navajo Nation Council Delegate Dwight Witherspoon outside of the Pinon Chapter House. Horseherder described her personal, cultural and environmental concerns about the endorsement and acceptance of the Kyl-McCain Bill. Horseherder urged Witherspoon to vote against the bill when it comes to a vote in Navajo Chambers.
TUBA CITY, Ariz. - At the very minimum, "Indian water settlements are complex, obscure and frequently, very expensive," according to Ryan Smith, an attorney for Brownstein, Kyatt Farber Schreck in Washington, D.C.
Smith, who wrote a recent news piece on congressional processes regarding Indian water rights settlements, gave an overview to the 112th Congress in Washington recently on how seriously complicated this legislative process is for Indian tribes, one of which is being experienced right here, right now in the home reservations of Hopi and Navajo.
The Navajo Nation's series of seven town hall meetings, three of them completed so far, have all been heavily policed and extremely lengthy, despite the pre-set time frame of a 90-minute PowerPoint time slot, with very limited three-minute question or public statement times for community members to even have their questions or positions put on public record. These constraints are all imposed by Navajo Nation President Ben Shelly and his Water Commission members.
In addition to the internal Navajo meeting constraints on public input, there has been heavily attended public protesting outside of every venue opposing the Kyl-McCain Bill, Senate Bill 2109 by Navajo and supporting Hopi grassroots members.
Shelly, along with Vice President Rex Jim and some of the Navajo council delegates are hearing resounding "no deal" sentiments from just about every single attendee at the recent Tuba City, Pinon and Ganado chapter houses last week, which indicates the Shelly-endorsed Little Colorado River (LCR) Settlement agreement is not going to get the Navajo community approval that he and his Water Commission are desperately looking for before their June cut-off date to finalize the congressional process.
On the Hopi side, there have been two recent central government presentations, one at Hotevilla Village April 13 and another hosted by the Hopi Tribes' Cultural Preservation Program at the Wellness Conference Center at Kykotsmovi April 17.
At the Hotevilla meeting, the village membership did not want Hopi Chairman LeRoy Shingoitewa's tribal attorneys to give their usual presentation that has been very structured and rigid. Instead, village members insisted that only Shingoitewa and his Water-Energy Team Chairman George Mase and team members be present to answer questions in both Hopi and English.
Along with few Hopi council members, Shingoitewa and Mase were scolded and questioned by the attending Hopi crowd for their lack of public disclosure and lack of Hopi public input prior to the "agreement in principle" that Shingoitewa and the Water-Energy Team agreed to in March.
"How many of us really understand this?" asked Hotevila Village member Mary Felter. "Your presentation is jumping all over the place and is just making this settlement issue more confusing. I would like the chairman and the water-energy team to come back and further educate us about the LCR issue because it's so complicated. We really need more information and more time to understand this. One meeting isn't going to do it."
Neither Shingoitewa nor Mase responded to Felter's immediate request. Hotevilla Village is planning on requesting a follow-up for Shingoitewa and Mase to come back up to their village a second time for further information and education for a full-day LCR work session in the next few weeks.
"It just seemed like it was a courtesy presentation so Shingoitewa could say, we held it, there were people in attendance and now that's a done deal at one village, lets move onto the next," said Jennifer Joseph. Joseph has been monitoring most of the Hopi presentations being held on both the Hopi grassroots "Kill the Bill" group presentations as well as the presentations being sponsored by the Hopi chairman and Water-Energy Team.
While the lack of public disclosure, public information or explanation has been an issue with both Navajo President Shelly and Hopi Chairman Shingoitewa's closed door approach to the water settlement issue, at the root of the SB2109 is the entire lengthy process of how Indian water rights settlements have been enacted and how they are processed at the congressional and federal level.
According to Smith, "Congressional approval is required before any water rights settlements can become enforceable. Once a tribe settles its water rights claims with the relevant local parties it must then face the daunting task of moving its settlement through the federal legislative process, which can and does take years."
Smith further states, "The looming federal budget deficit and current ban on 'earmarks' have made it even more challenging to advance an Indian water settlement through Congress. Given these challenges, in order for an Indian water settlement to have any chance to become law, as a threshold manner it cannot increase the federal deficit. Moreover, settlement parties must be able to distinguish their settlement from an 'earmark' and demonstrate to congressional members that their settlement's value warrants its federal price tag."
Western water law is complicated, Indian water law is even more complicated. Water rights for Indian reservations are based on the "Winters Doctrine," which basically says that when the federal government creates an Indian reservation, that it also must "reserve enough water" to sustain and fulfill the purposes of the reservation. (Winters v. US 207 U.S.564, 576-577, 1908).
The priority date of reserved water for Indian reservations is also the date that the reservation was created by executive order, treaty or by Congress. Because most western Indian reservations were created in the 1800s and early 1900s, tribes generally have "senior water rights" over "non-Indian water users."
But historically since very few tribes have had financial resources to assert or develop their water rights, many "non-Indian water users" have become extremely reliant on tribal water.
Also, the unique way that settlements are drafted and processed, they might never become law.
An important aspect of the settlements act is that they comply with what is called the Pay-As-You-Go (PAYGO) Act Pub.L.No.111-139 (2010). PAYGO requires that any direct spending and revenue provisions in a bill not increase the federal deficit.
There are two types of federal spending, "discretionary" and "direct."
Direct spending is generally established impermanent law and includes federal government spending on entitlement programs as well as other budget outlays controlled by laws other than appropriations process. If direct spending is included in a bill, the funding becomes available authomatically. Direct spending is not contingent on the annual appropriations process.
A bill with "discretionary spending" merely authorizes an appropriation. It does not actually appropriate or authorize any actual funds.
The Navajo-Hopi Little Colorado River Water Settlement agreement draft does not attach any "direct funding" to its passage, which is only part of what is causing many Hopi and Navajo grassroots opposition members to have serious concerns.
According to Smith, "In the era of budget cuts and the newly-imposed Republican party ban on 'earmarks' the future of Indian water settlements in the 112th Congress and future Congress appears to be uncertain at best."
Certain members of Congress have argued that water settlements are "earmarks" because they authorize spending for a particular tribe in a specific state.
Another factor that has not been addressed by Shingoitewa or Shelly is the federal government's trust relationship with Indian tribes and what results as "the federal governments federal duties and trust responsibilities to the protection, development and management of tribal resources, including water." (Pyramid Lake Paiute Tribe v. Morton, 354 F. Supp. 252,257).
In addition, there is the formal Indian Policy of the US Bureau of Reclamation, which states: "Trust Resources: The United States government has an Indian trust responsibility to protect and maintain rights reserved by or granted to Indian tribes or Indian individuals by treaties, statutes and executive orders. Reclamation, as a federal executive agency, also shares this responsibility."
Finally, Shingoitewa and Shelly have not explained the "value of tribal water" to their tribal memberships during their heavily structured, limited local meetings. What is the "real value' of tribal water and what are Hopi and Navajo really giving up as a part of the settlement?