August 2020

Indigenous Peoples and Human Rights

Monday, November 1, 2010

Forgotten People: Water $ Values $ and Falsehoods

From: Forgotten People to Navajo Nation Council Delegates
Photo: Dine' Water Rights March 2010
Download or print all new documents:
E-mails to council delegates; Navajo council delegates as Heroes; Index to proposed Navajo Water Rights Settlement; Exposure of Attorneys Falsehoods:

Dear Honorable Delegates:
November 1, 2010
Re: "Water $ Values $ and Falsehoods”.
Attached (below) please find a brief report with important falsehoods (with verified references) relating to the misdirection and deception of the Council and Commission on Water Rights.
All of The Dine' Water Rights Groups (like the student groups who put a 1/2 page in the Times this latest issue) are concerned that the Council and the People are not just getting deceptive information, but getting no information on the true monetary value of our water.
Consider that other tribes are using their water also for capital development, e.g., Gila River just leased some of their water for $70,000,000 off the reservation to do capital development on the Reservation. They receive a lease value of $1,743 per acre foot per year.
The ownership value (not the lease value) for our NIIP water was appraised by BIA and internationally renowned farm appraisers at $15,000 per acre foot (or 4.2 $billion dollars) in 2002.
The lease value of the more than 100,000 acre feet of NIIP water that went unused last year could be comparable to the Gila River Tribe. But, Pollack waived our rights in the San Juan Settlement to do that downstream.
With no knowledge of true water values being allowed by Pollack and his supporters, and relying on deceptive information, the Settlement debate is very far from being complete.
This is why the People respectfully request 2 hours to present (with a PowerPoint Presentation) on November 4th Special Session before Attorney Stanley Pollack presents. Attorney Stanley Pollack has had years to talk with you. Please allow the People the time to present at the NNC Water Rights Special Session.
Thank you for your consideration.
Don Yellowman, President
Forgotten people
On behalf of our membership and the memberships of all The Dine' Water Rights Groups

11/1/10 Disclosure of Major Falsehoods of Attorney Stanley Pollack & Scott McElroy

Disclosure of Major Falsehoods Regarding Lawyer Stanley Pollack’s and Lawyer Scott McElroy’s Misleading the Navajo Nation Water Rights Commission, the Navajo Nation Council, and
the Navajo People


Applicability of state law “Prior Appropriation,” state law “Use it or lose it,” and the Colorado Compacts of 1922 and 1948 to the Navajo Nation and our People’s Water Rights


Dine Water Rights Coalition

Ms. Lena Fowler, former Vice Chair of the Navajo Nation Water Rights Commission, has publicly and very strongly declared that “use it or lose it” is applicable to Indian reserved water rights in general, and Navajo reserved rights, in particular, based on teachings from Stanley Pollack, Scott McElroy, and their Window Rock “Team.”

Fowler and many other deceived leaders have spread this completely false statement far and wide around the Nation. By deceiving our leaders, the lawyers have many of these leaders and many of our people believing we cannot claim unused water for the future; even though the foundation of the Winters doctrine of Indian reserved water rights is the exact opposite of what Pollack has spread like a cancer among us.

The "use it or lose it" assertion is from western states’ prior appropriation doctrine, which is the opposite of the Winters Indian rights doctrine. Pollack has so distorted the truth on this issue that he has turned the concept of Indian reserved water rights here upside down. This extremely seriously disadvantages the Nation from within itself, because federal Indian law would not allow the outside to impose such falsehoods on us. In other words, it could only happen as an inside job.

The following list of legal source quotations clearly demonstrates how false the "use it or lose it" concept from prior appropriation is when applied to Indian reserved rights. Again, Indian reserved rights are also known as Winters rights. This legal doctrine is highly favorable to tribes, when truthfully employed to maximize tribal claims, because it recognizes that tribes did not have the financial and other resources, to date, to put their water to use. The outside society, however, has poured billions of dollars into water development for its own purposes over the past 100+ years.

Thus the tribes' rights are "reserved," or legally protected, by Winters rights against arguments that they cannot claim very large amounts of water because they did not use it. And, the doctrine, at its very center, serves to promote and protect Indian tribes' claims for expanded future use, so they are not further punished "for being Indians;" as is the case when non-Indians have tried to impose "use it or lose it" on a tribe’s water rights.

That is a major reason it is not just legally wrong but also morally wrong for the one or two individuals who originally planted this general “use it or lose it” falsehood in the minds of people on the Nation. Those Navajos who support them do so largely because of their having been intentionally misinformed, though one or two acquiesce in the wrong because it is easier to do than confront the mis-informers.

Legal Scholar Source Citations RE: “Use It or Lose It” does Not Apply

[Note: Some of the most sensational revelations come at the end of this educational list of legal source citations, e.g., two quotes from Stanley Pollack to outsiders, but hidden from the People, the Council, and Water Rights Commission until we uncovered them.]

1. “First, the creation and maintenance of a Winters right does not depend on any use, beneficial or otherwise.” Fisher, Todd. 1984. The Winters of Our Discontent: Federal Reserved Waters Rights in the Western States. 69 Cornell [University] Law Review 1077, 1090.

2. "Reserved water rights ... have a priority date, the date of creation of the reservation, but they are not dependent on the application of water to beneficial use." Tarlock, Dan. 1999. (Tarlock is one of the most famous water law experts of all time.) Law of Water Rights and Resources. West Group. Sec. 9.07[1][a].

3. "Winters rights are not lost by nonuse." Canby, William C., Jr. 2003. (Senior judge on the U.S. 9th Circuit Court of Appeals). American Indian Law. West Publishing Co., p. 432.

4. "Indian water rights are reserved. Therefore, (1) a tribe cannot lose its Winters rights through non-use, and (2) the amount of water a tribe is entitled to is not determined by and limited to a tribe's initial use.” Pevar, Stephen. 2004. The Rights of Indians and Tribes. NYU Press. p. 242.

5. "The theory of Indian water rights is inconsistent with these [first in time, first in right] elements of western [U.S.] water law. As reflected in the Winters case . . . the Indian right to the water does not depend on present use or priority but, rather, on future need." Clinton, Robert, Nell Jessup, and Monroe Price. (Law Professors. The 1st at ASU.) 1991. American Indian Law. p. 858.

6. "The [Supreme] Court [in Winters] further held that the priority date of Indian reserved rights does not depend on when the rights are put to beneficial use, but on when the reservation was established." Tarlock, Dan, James Corbridge, and David Getches. (Law profesors. The last, Dean of the U. of Col. Law School.) Water Resource Management. 1993. Foundation Press. p. 763.

7. "Indian reserved water rights differ significantly from [others]. They generally arise from land ownership rather than use; they may be asserted at any time; and they are not lost through nonuse. Unlike appropriative rights, reserved rights are not based on diversion and actual beneficial use. Instead, sufficient water is reserved to fulfill the purpose for which a reservation was established." Cohen's Handbook of Federal Indian Law. (Written by over 20 lawyers in the field.) 2005. p. 1169.

8. “Specifically, the [Supreme] Court has ruled that a Winters right is not subject to abandonment or beneficial use restrictions found in all state laws.” Walker, Jana and Susan Williams. 1991. Indian Reserved Water Rights, 5, 7. Natural Resources and Environment law journal 6.

9. “Winters rights stem from a different legal framework than do water rights acquired under the [state system] of prior appropriation. Under a state law system of prior appropriation, one acquires water rights by using water beneficially, with the priority date of the right stemming from the date the water was first used and the right dissolving if the water is not used. Winters rights [however] are a kind of federal reserved rights. . . . The federal rights are not only outside the prior appropriation system, they are incompatible with it, for they . . . are not lost by nonuse. If a tribe’s reservation was established earlier than an appropriator’s appropriation date, the tribe has rights to the water, even if it has never exercised those rights.” Shay, Monique. 1992. Promise of a Viable Homeland, Reality of Selective Reclamation: A Study of the Relationship Between the Winters Doctrine and Federal Water Development in the Western States. 12 Ecol. L. Q. 547, 575.

10. “In the [state] prior appropriations system the application of water to a beneficial use perfects the right, sets its priority date and quantifies its amount. A user's right can be lost through nonuse or abandonment. Pursuant to Winters, [however] a right to water exists with the date of the establishment of the reservation as its priority date and continues to exist regardless of whether it is presently being used or not . . . .” [Emphasis added.] Crass, Karen. (Attorney and NIIP history researcher/author.) 1997. Eroding the Winters Right: Non-Indian Water User’s Attempt to Limit the Scope of the Indian Superior Entitlement to Western Water to Prevent Tribes From Water Brokering. 1 U. of Denver Law Review 109, 113-114.

11. "[In the Winters case] the Supreme Court held that although the settlers had established rights under state law and had begun using water before the Indians, the Indians held a prior right. . . . [In] Arizona v. California [the Supreme Court] held that reserved water rights extend to protecting future reservation uses and is not limited by the population or [current] needs of the Indians." [Emphasis added.] Getches, David. (Dean of U. of Col. Law School.) 1997. p. 309, 311 Water Law (West 3d ed.).

12. “[Indian reserved] rights may be created without diversion or beneficial use; the priority of the rights date from the time of the land withdrawal and not from the date of appropriation [i.e., the date of use]; the rights are not lost by lack of use . . . .” Thorson, John (Administrative Law Judge and former special master for Arizona’s water adjudications), Sarah Britton (Attorney), and Bonnie Colby, Ph. D. (Professor of Agricultural and Resources Economics, U. of AZ). (Eds.) 2006. Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics. University of Arizona Press. p. 158.
13. “It is under the reserved rights doctrine that Indians have first call on much of the West’s invaluable water resources. Tribes are entitled to enough water to meet their present and future needs from such overcommitted rivers as the Colorado . . . . The right may be exercised [despite] the [already] established uses and needs of non-Indian farmers and communities on the same streams.” [Emphasis added.] David Getches, Charles Wilkinson, and Robert Williams (Federal Indian law professors). 2005. Cases and Materials on Federal Indian Law. West 5th ed. P. 4.

14. “[T]he reserved right [is] not liable to extinction through nonuse.” Burton, Lloyd. 1991. American Indian Water Rights and the Limits of Law. U. of Kansas Press. p. 21.

15. “Winters rights retain their validity and seniority regardless of whether tribes have put the water to beneficial use.” Bonnie Colby, John Thorson, and Sarah Britton. 2005. Negotiating Tribal Water Rights: Fulfilling Promises in the Arid West. U. of Az. Press. p. 10.

16. “In sum, the Winters Doctrine created a concept of water acquisition and ownership wholly at odds with the prevailing western doctrine of prior appropriation. The two doctrines are contradictory in a number of ways; prior appropriation rights [or non-Indian water rights] are based on diversion and use, while reserved [Indian] rights do not require use . . . .” McCool, Daniel. 2002. Native Waters: Contemporary Indian Water Settlements and the Second Treaty Era. U. of Arizona Press. p. 19.

17. “Indian water rights are reserved. These rights . . . are not lost by non-use.” Stanley Pollack, 1999 (May 21-22). Seminar syllabus, CLE (Continuing Legal Education Seminar) International Seminar. Mr. Pollack’s seminar title: Indian Water Rights on the Colorado River.

18. “Reserved rights exist regardless of whether water has been used by an Indian Tribe. Reserved rights are not lost by non-use or state doctrines of abandonment or forfeiture.” Stanley Pollack, 2000 (August 24-25). Seminar syllabus, CLE (Continuing Legal Education Seminar) International Seminar. Mr. Pollack’s seminar title: Indian Water Rights.

Curiously, and shockingly, in comparison to content of the last two of the above quotations, Stanley Pollack’s alma mater, U. of Michigan, did a feature article on Pollack on 1 February, 2009, titled Water water everywhere . . . . It is a somewhat smarmy piece, falsely painting him as a hero to the Navajos.

Yet here is what Pollack related to his university, as paraphrased by the U. of M.:

Western state water law is based on the principle of prior appropriation . . . . So, even though the Colorado River runs along the reservation’s northern border for 75 miles [it is actually closer to 100 miles], the Navajo have no rights to it because (a) they were not using the water at the time of the [Colorado River] compact(s) [of 1922 and 1948] and (b) virtually none of the reservation’s 26,000 square miles is suitable for agriculture.

Consider the 18 above quotations on the non-applicability, to Indian reserved water rights, of the use-it-or-lose-it principal that comes from state prior appropriation law. Consider, also, the above statement derived from Stanley Polack by the U. of Michigan. Then consider the following three important quotations. They and the above 18 demonstrate the subordination, subversion, deception, and dishonesty swirling around Mr. Pollack’s control over Navajo water rights.

I. Stanley Pollack, 1997, in Santa Fe, Declaring a Navajo Colorado River claim of “no less than 5,000,000 acre feet.”

Still unquantified and conceded to be potentially huge, the Navajo Tribe's water rights claim could cut into the Colorado River apportionment of four states: Arizona in the Lower Basin and New Mexico, Colorado and Utah in the Upper Basin, with the major burden on Arizona. The reservation is 25,000 square miles and is located entirely within the Colorado River basin. Its western boundary is the mainstem of the Colorado River, and two tributaries, the San Juan and the Little Colorado rivers, flow through tribal land.

Some officials have speculated on what the Navajo claim might be. Noting two such publicized figures, about two maf and five maf, Stanley Pollack, special counsel for the Navajo Tribe, remarked at the conference that he is unable to figure a claim under five maf. Pollack referred to the Navajo Tribe with its unquantified water rights as a "sleeping giant" and viewed Indian water right claims as possible "compact busters."
II. Declarations in the Two Colorado River Compacts (1922 and 1948) of there not affecting U.S. obligations to Indian tribes:

1. “Nothing in this compact shall be construed as affecting the obligations of the United States of America to Indian Tribes.” Article VII, Colorado River Compact, 1922.

2. “Nothing in this compact shall be construed as: (a) Affecting the obligations of the United States of America to Indian Tribes.” Article XIX (a) Upper Colorado River Basin Compact, 1948.

It is indeed unfortunate that an informational “iron curtain,” primarily but not solely of Stanley Pollack’s design, surrounds the Navajo Nation and keeps out major truths about water rights. This reality reduces the leadership’s access to a wholly truthful interpretation and understanding of the Navajo Nation’s water rights potential, which is far greater than they have been told.

All this merely adds to the sinking feeling our people have, as long as Stanley Pollack and his team are in control of our water and therefore our very lives as a separate people.

Yes! The Opportunity is there!
Now, more than ever, our people need heroes.
You delegates, despite the cloud of suspicion hanging
over you, have an opportunity to be among those Diné of the
past who are revered for their selfless actions for our people.
To stand up against the corporate and state control and
pressure being exercised against you through DOJ, and its
Water Rights Commission puppets, is an opportunity.
Some of us are even receiving credible information that
the precipitous criminal arraignments against most of you
were speeded up by DOJ to help pressure you into voting for
the fatally flawed Northeastern Arizona Indian Water
Rights Settlement.
The people will be obliged to the Council for halting this
version of the settlement. And, we will publish the vote so the
people may know who supports the people’s desires for
renewed, informed, honest, and representative negotiations.
We plan to present the details of those desires on November
4th. Who among you will affirm the People’s report? Ahéhee.
The Diné Water Rights Groups

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