Under Water Pressure

(AP Photo/Evan Vucci)

Interior Secretary Ken Salazar, center, accompanied by Senator Jeff Bingaman, right, speaks during a news conference on Capitol Hill in Washington, Thursday, October 1, 2009, to discuss future activities relating to the Navajo-Gallup water supply project.

Five years after the Wampanoag tribe shared a three-day feast of maize, venison, eel, and shellfish with a hapless group of English separatists in Plymouth, Massachusetts, the Dutch governor of New York bought the island of Manhattan from the Canarsie tribe for $24 worth of gold. This week, thousands of New Yorkers will fly out of La Guardia for Thanksgiving, and those fortunate enough to do so in the evening will enjoy a spectacular view of the return on that investment; phosphorescent skyscrapers and over a hundred-thousand streetlights trace a real-estate market valued at just under $1 trillion. Nowhere else has the memory of conquest been so thoroughly blotted out, and perhaps as an extension, nowhere else is a history of non-native influx more central to a city’s identity. But the transfer of title is not so complete in many parts of the country. At the Department of the Interior in Washington last week, where a tarpaulin banner on the portico façade encouraged visitors to “Celebrate Native American Heritage Month,” Secretary Ken Salazar commemorated our country’s original occupants in classic fashion: he hosted a land dispute between Native Americans and colonizers.

At issue were Navajo and Hopi water claims to the Little Colorado River, an aquamarine tributary meandering through 300 miles of clay bluffs just east of the Grand Canyon. For 40 years, the Navajo and Hopi tribes have leased land and water to Peabody Western Coal Company, which mines on the Navajo Reservation, and the Navajo Generating Station (NGS), which burns the coal to power cities in Arizona, Nevada, and Southern California. While the tribes have senior claims on the river, nearly half of the West Virginia-sized reservation lacks running water. People are forced to haul their water in 55-gallon drums from coin-operated filling stations while Navajo resources drive the water pressure in millions of homes hundreds of miles away from the reservation.

“Many of our families live in third-world conditions, and they’re tired of that,” said Eric Descheenie, the chief of staff of the Navajo legislative branch.

For decades, Navajo attorneys have tried to leverage their water claims to get federal money for water delivery. At the beginning of this year, the coal industry appeared ready to strike a deal. The Navajo-Hopi Water Rights Settlement Agreement proposed giving the tribes all of the unappropriated water in the stream, and unlimited access to two aquifers of groundwater. The agreement also restricted new users from pumping the aquifers in range of the tribes, and prohibited any new users on the Little Colorado. The most significant aspect of the agreement, though, was $350 million of federal money to develop a water delivery system for thousands of homes on the reservation. In the language of water-claims attorneys, that money meant converting “paper water rights” into “wet water rights.” In return, Peabody and NGS obtained certainty that they could pump the river for “time immemorial.”

When the president of the Navajo Nation, Ben Shelly, saw the deal, he realized this was an opportunity for more than just clean drinking water. “It gave us a lot of water," said Shelly’s spokesperson, Erny Zah. "And it meant having the ability to build new schools and hospitals." There are over 600 projects the Indian Health Service says are gridlocked because the water table is maxed out, including a large number of sanitation efforts. Access to running water isn’t just about getting clean hydration in. It’s also about getting human waste out.

Arizona’s Republican Senators John McCain and Jon Kyl agreed to cosponsor a bill to cement the agreement. However, Kyl started negotiations with preemptive compromises in place to usher the bill through the House’s Republican majority, which would only see earmarks where the Navajo see a necessity. The amount of federal funds for a water delivery system would have to be reduced, and the gains for the coal industry would have to become the major attraction. According to an attorney involved in the negotiations, Kyl explained, “House Republicans love coal. They want to see the Navajo Generating Station in the bill.” That meant explicitly stating the amount of water set aside for Peabody and NGS, along with protections from litigation if their water use contaminated the river. A 25-year extension on the NGS lease, currently set to expire in 2019, was also tacked on to the bill.

In February, as Congress battled on the payroll tax extension and the budget, Kyl endorsed the legislation on the Senate floor as a critical appropriation for the Navajo and Hopi—as well as a major win for the coal industry. On an easel behind him, a mounted photograph showed a Navajo family in the red desert, improbably loading water jugs onto a horse-drawn wagon. “Legally, the Navajo Nation and the Hopi Tribe may assert claims to larger quantities of water, but, as seen here, they do not have the means to make use of those supplies in a safe and productive manner,” Kyl said. That’s the moment most Navajo officials believe things started to unravel.


On the reservation, McCain and Kyl have a well-earned reputation as foot soldiers for big coal. In 1996, McCain finalized a law that relocated some 12,000 Navajo to make way for Peabody mining. Six years later, Kyl came under fire for introducing legislation that would have let the coal company drill for water inside the Grand Canyon. Both have fought new EPA emissions standards requiring NGS to outfit its smokestacks with scrubbers, even as much of the reservation is shrouded in a coal-fire haze. “Given Jon Kyl and John McCain’s history with the Navajo Nation going back into the seventies, anything that they would do isn’t welcomed by a certain segment of the population,” Zah said. Rumors spread that Kyl’s photograph, with its outrageous depiction of livestock-dependence, was a staged publicity stunt, and suspicions mounted that he and McCain were orchestrating yet another land grab.

The Navajo Nation Council still had to approve the agreement, and protests erupted in the tribal capital of Window Rock. At a meeting in April between the Arizona senators and President Shelly, hundreds of Navajo filled the streets chanting, “Jon Kyl go home! Leave our water alone!” His legislation was regarded as a thinly veiled attempt to commandeer aboriginal water rights on behalf of the coal industry. “Maybe a hundred years ago we couldn’t read the document, but today we can. You can’t do things like this to us anymore,” said Nicole Horseherder, a Navajo grassroots activist. “Kyl is only trying to get something for his constituents. We are not Kyl’s constituents. He does not represent the Navajo people. He is only looking out for Arizona and industry.” In July, the council sided with the protesters, and voted down the settlement.

The deal appeared dead, until Secretary Salazar made a final attempt to resuscitate talks last week. At the meeting with Kyl and Salazar in Washington, leaders of the Navajo Nation and Hopi Tribe—along with a few influential council members, Horseherder, and a medicine man—said they wanted a quantification of their rights to the Little Colorado, rather than a vague claim to whatever water is left “unappropriated.” They also wanted the legal safeguards and lease extensions for Peabody and NGS removed from the bill, and a guarantee that if the tribes sign the agreement, Congress will fund the water delivery projects. Salazar and Kyl told their visitors they had a six-week window in the lame duck session to get the bill passed, after lawmakers return from the Thanksgiving break next week and before new legislators are sworn in next year. Descheenie said the two men seemed motivated to get something done, but added, “I can honestly see the Navajo Nation simply walking away if it feels it is not getting what it wants.” If no bill is signed, the dispute will likely be litigated in Arizona state court, where a predominantly Republican bench is unlikely to rule on terms anywhere near as favorable for the Navajo and Hopi. And no matter the outcome, it won’t include money to convert whatever “paper rights” the Indians win into “wet water rights” they can use.

Stanley Pollack, assistant district attorney of the Navajo Nation, has worked on the settlement since 1985. During that time, bricks have blasted through his office windows, and flyers of his headshot with “Osama bin Pollack” scrawled underneath have circulated freely. Pollack has said that the tribal members misunderstand the terms of the agreement. Non-Indian users are not getting anything new in the settlement. They are only getting legal certainty to keep using the water they already do. In fact, Pollack suspects many misunderstand the nature of legal settlements more generally. These deals seek terms that conflicting parties can agree on. No one party can expect to receive everything. Compromise is key.

But Jerome Clarke, the Navajo Council’s director of communications, thinks those who oppose the agreement understand the terms all too well. It guarantees the status quo in exchange for taking a gamble on Congress having the wherewithal to appropriate hundreds of millions of dollars to give Native Americans drinking water. Instead, nearly 400 years after the first Thanksgiving, at least two Native American tribes will wait out the nationwide feast, and then demand proper terms for sharing the earth’s bounty.

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