Indigenous Peoples and Human Rights

November 26, 2015

Navajo Water Rights Give Away: The Road to Termination by Jack Utter

The Navajo Nation Is Well On Its Way to Termination
Reproduced and modestly improved from an e-mail to Ed Becenti from Jack Utter, November 21, 2015
C:\Documents and Settings\Administrator\My Documents\JU\Drawing11.jpgA parody by Jack Ahasteen.

Dear Ed . . . shijéí nayiiłná.

I read with great concern the climate change and declining Colorado River snowpack article you recently circulated.  My wife, who is from Leupp, has also read the article (and similar ones in the New York Times and elsewhere), and asked that I also send along her appreciation. 

Sadly, the Navajo Nation, under current leadership and the termination-promoting policies of certain lawyers in Navajo Nation Department of Justice, is out of touch with what has gone on and is going on regarding climate change impacts, or the Navajo Nation water rights reductions by Department of Justice; and that the Navajo Nation is headed right toward the "cliff" of termination: that is, if the Navajo Nation does not promptly do a 180 degree turnaround in the giveaway- and reduction-oriented water rights policy long-promoted in Window Rock, and that has been firmly in place since roughly about 1998.

C:\Users\Jack\Pictures\Cartoon Carpetbaggers (1).jpg

Here is a two-part example of that policy, one that many grassroots Navajos are already very familiar with: 

First, there was the proposed giveaway of every drop of Navajo reserved water rights claims to the Little Colorado River surface waters through the now dormant (but re-rising) S. 2109 of 2012 (i.e., former Senator Jon Kyl's Senate Bill S. 2109).  That S. 2019 giveaway effort is what certain Department of Justice lawyers did by violating Navajo Nation sovereignty and the American Bar Association's, State's, and Navajo Nation's rules for lawyers' professional conduct when they purposely did not inform their main "client," the Navajo Nation Council (or any of the rank-and-file Navajo citizens), of the detailed truth of the proposed settlement.  As many thousands of grassroots Navajos loudly declared in 2012 (and as did many in the Council), that purposeful Department of Justice failure regarding the truth was a gross violation of the People's rights to free, prior, and informed consent: now recognized in the United Nations Declaration on Indigenous Rights. 

Second, the same S. 2109 Department of Justice lawyers--and without official Navajo Nation authorization--actually negotiated away, and then effectively signed away on their own (for immediate purposes), all Navajo Nation reserved water rights claims to the 3.5 billion dollars worth of Lower Colorado River surface water.  This helped Senator Kyl in his, thankfully, soon-failed efforts to try to give his so-called "valentine and birthday present" of S. 2109 to the state of Arizona on its 100th birthday (Valentines day of 2012, Feb 14). 

There was no NN Council vote on S. 2109 at that time and no public signoff by the President.  It was merely two non-Navajo/non-Indian Department of Justice lawyers (with much "moral" support from certain Navajo lawyers and Navajo Nation government staff) who signed an approval document for Kyl concerning S. 2109, and thereby effectively signed away (as was thought by outside interests at the time) massive reserved water rights claims belonging to all the Navajo People (but without the People's or their government's proper approval). 

C:\Documents and Settings\Administrator\My Documents\JU\Drawing6.jpgBy Jack Ahasteen
[Diné coal and stolen and given-away water save the Phoenix and Tucson regions from economic ruin and depopulation, while the Navajo Nation wallows in poverty: controlled by and tricked out of its future by outside interests and their Navajo and non-Navajo agents in the Navajo government.]

If the surrounding states had lawyers working for them who did to them what the Navajo Nation lawyers did to the Nation and its People for S. 2109, the states would not only have fired them, they would have disbarred them, and perhaps prosecuted them.  What did the Navajo Nation govt. do, even in light of the massive Navajo public outcry against what was going on?  It did nothing; not under the Shelley Administration and not under the new one.  In fact, the new one has put a barrier of protection around the same lawyers, and all those who are helping them deprive the People of their future as a Native Nation. 

The termination-promoting corruption of the past has not left the Navajo Nation at all.  Consider, for example, that there are water staff in the Navajo Nation who actually support the concept of focusing almost exclusively on "faucet" water rights, and letting nearly all claimable Navajo Nation reserved water rights in Arizona and Utah go down to Phoenix, Las Vegas, Los Angeles, Tucson, etc., without claiming those rights.  Those water staff have, in effect, said that it doesn't matter, and that most Navajos are going to move away to those kinds of places any way--so the water should go there.

That kind of talk is, in fact, termination talk.  Termination means ending the legal existence of the Navajo Nation and the Navajo Reservation, so all Navajos would no longer be members of a federally-recognized Indian tribe.  They would not be recognized as having rights to general services under federal Indian law.  That includes scholarships, and eventually Indian Health Service, educational, and many other services.  The Reservation land would be terminated and distributed as the federal govt. sees fit, after government-determined compensation to the Navajo Nation: just like happened to the 109 tribes that were terminated in the 1950s and early '60s. 

You and I and many others have individually stood against this kind of very dangerous termination attitude and activity for many years.  It is amazing how the greatest threat of termination against the Navajo Nation comes from within the central Navajo Nation government in and around Window Rock.

Very similar misbehaviors to S. 2109 have gone on with the Utah settlement--through which the same Department of Justice lawyers, and those Navajos they have tricked and/or bought off, are using the same techniques as with S. 2109.  Department of Justice's actions have already "waived," by doing nothing, Navajo reserved rights claims to roughly $500,000,000 dollars' worth (i.e., half a billion dollars' worth) of San Juan River and Colorado River water rights in Utah without complaint and without informing the leadership or the People of the truth.  And that's just the amount of giveaway we know of in Utah.  What else have they hidden from the People and the leadership, like they have so often hidden the truth before?

So, grassroots Navajo citizens very often ask me, what's really going on?

To begin with, I say look at the hold-over staff (some very corrupt) and appointments in the current govt. and the current policies or lack thereof.  Not much different than before, and key positions in the new administration were among those filled by the Department of Justice lawyers of S. 2109 and similar fame, or are among Navajo Nation staff who strongly supported them--against the will and rights of the People.  I won't list them now, but many Navajo Nation citizens know exactly who they are and the positions they are in. 

There is no avoiding the reality that--in light of climate change, reduced Colorado Basin snow packs, reduced precipitation in general, reduced available water, millions more non-Indians in the West to compete with, Jon Kyl's continuing influences, and purposely reduced water rights and claims to disadvantage the Navajo Nation -- the overall Navajo Nation Department of Justice water rights policy since about 1998, collectively and effectively, is one of a huge giveaway of reserved rights and seniority of rights and therefore promotion of eventual termination of the Navajo Nation to serve outside interests, i.e., to serve the people and economies of the surrounding states at the cost of the long-term survival of the Navajo Nation.

C:\Users\Jack\Pictures\Cartoon Rock Monster.png See McCain & Kyl on Monster's forearms.

The outside interests do not want to have to contend with a strong and more sovereign Navajo Nation.  That's why Navajo Nation water rights policy in Arizona and Utah is focused almost exclusively on what the grassroots people have long referred to as "faucet water."  Even the so-called "Water Rights Commission" has publicly declared they are now focused almost solely on faucet water. They are little more than the personal commission of certain Department of Justice lawyers and their supporters. 

Use of faucet water in the Intermountain states of the American West accounts for only about 5% or less of the water used.  A private family can easily get along on faucet water to their home, because that's all they need; except they have to have jobs and an economy surrounding them (including, like the states, an agricultural economy) that will keep them going.  Maximized Reserved Surface Water Rights, not minimal and mostly faucet water/groundwater rights, are the key to a Navajo Nation sustainable economy and the future survival of the Navajo Nation.

The states know they have to get and keep as much extra water (i.e., the 95% of water above and beyond faucet water) to survive.  But the Navajo Nation does not know this, because certain lawyers and staff have misled the Navajo Nation, and misled the past and current leadership, the Water Commission, and most of the People.  Remember when President Shelley told people the Navajo-Gallup pipeline is bringing agricultural water to the people?  It is not doing that.  There is no agricultural water allocation for the Navajo-Gallup pipeline.  That's why the Navajo Gallup pipeline has a capacity of only a relatively small volume of water compared to, say, the NIIP/NAPI canals.  (The Department of Justice lawyers at issue also agreed to reduce Navajo Nation NIIP irrigation waters rights in the San Juan River New Mexico Settlement by almost $2 billion worth without explaining it to the Navajo People or the leadership.)

Again, the states know the truth and that the key to their survival is the 95% water beyond the 5% faucet water, and as much as they can claim and keep of it.  That's why they have been working to take away and/or significantly reduce Navajo Nation surface water rights, priority dates, and truthful information (with the significant help of certain Department of Justice and other lawyers) every chance they get.  The Navajo Nation cannot survive without what the states have, and without maximizing its water rights, and without the truth.  The NN needs the truth in order  to claim and keep its hundreds of thousands of acre feet of reserved water rights to surface water in the states of Arizona and Utah, combined, that are absolutely necessary for an economy; and therefore necessary for survival of the Navajo Nation as a Native Nation on into the future for our children, grandchildren, and great grandchildren.

In light of all the negative factors weighing on the NN right now, from within the NN and from the outside, if there is no immediate 180 degree change from the faucet water-focused path that Department of Justice, Window Rock, and outside interests have put it on, I predict that the Navajo Nation will begin to make its own official moves toward termination in perhaps 25 years, or maybe 50 years at the outside.  That's because it cannot sustain an economy or sustain itself as a Native Nation without maximizing its water rights as far beyond faucet water as it can.  With the Navajo People unable to survive economically as a Native Nation, and as a result of what's  happened under past and current S. 2109-like water rights policies, there will be no other economic choice given to them (if things don't drastically change now).  That is the effective plan of the Jon Kyl's of the world and their supporters in WR and other places.

The Navajo Nation is already on an unofficial path to termination under certain Department of Justice lawyers' current and mostly "faucet water" water rights policies, and under the active appeasement of outside interests that is going on at the expense of the Navajo People.  Unfortunately, so far it's only the most active Navajo grassroots organization members, and a few others, who seem to realize the full impact of this because the truth is almost always withheld from the People.
C:\Documents and Settings\Administrator\My Documents\JU\Drawing5.jpg By Jack Ahasteen
[NOTE: All the images were drawn by or modified by the renowned Jack Ahasteen, and appear here under fair use for educational purposes.]

With Department of Justice controlling the president's office, legislative offices, and DNR, and now moving to morph the Navajo Nation Supreme Court―plus the Navajo Nation government's unwise purchase of an economically ill-fated coal mine, the taking of a huge loan to pay off a huge loan, the recent betrayal of people and party by a legislator who joins a now dangerously anti-minority political party, and the nonresponsive media -- I see little or no free, prior, and informed consent, no government by the people, and the figurative termination train already leaving the station.

Nááná, shijéí nayiiłná.  . . .  Jack

Jack Utter, Ph. D., J. D., St. Michaels, Arizona


Lloyd Vivola said...

“In light of all the negative factors weighing on the NN right now, from within the NN and from the outside, if there is no immediate 180 degree change from the faucet water-focused path that Department of Justice, Window Rock, and outside interests have put it on, I predict that the Navajo Nation will begin to make its own official moves toward termination in perhaps 25 years, or maybe 50 years at the outside.  That's because it cannot sustain an economy or sustain itself as a Native Nation without maximizing its water rights as far beyond faucet water as it can.“

Thanks to Jack Utter and this detailed appraisal of the Navaho Water Rights controversy and to CENSORED NEWS for publishing it and other articles on the subject. Serious material. Grave consequences.

Alright, I am not a lawyer, and perhaps I am overlooking something, but...

Is it not possible to challenge some of these controversial water rights agreements with a “you have no right” argument, one similar to the reasoning employed by a federal court to strike down the patent rights of the Washington DC football team's claim to the disparaging name “Redskins”? That is to say, and referring back to the creation of the Navajo Nation reservation as well as to the Winters Doctrine, can rights to a fluid resource that is essential to life and to the sustainability of affected communities be negotiated and appropriated by any government – tribal, state or federal – in ways that “lock in” appropriation of the said resource – say, by measuring faucet usage – irrevocably into an unforeseeable future when that resource could be at some future date appropriated in other ways – agriculture, industry, environmental good health - to benefit or simply sustain a community that is partner to such an agreement? Granted, the Washington football team is a private entity as were the non-indigenous settlers at Fort Belknap. That is to say, that the governments that are partners to a resource rights agreement are – or so it seems - representing their citizens in good faith and according to the law. But can the government of New Mexico, say, negotiate an essential resource rights treaty or contract that would “lock in” appropriation of the resource in ways that could threaten the immediate or eventual “termination” of the State of New Mexico, its constitution, or a viable citizenry without putting such a proposition clearly in no uncertain terms before the people it claims to represent for their direct approval or rejection thereof? Seems to me that the government of New Mexico “would have no right” to do so without such clarity and public approval.
And even with approval of such by the citizens by a majority, should viability – biological and cultural – of the minority not be entitled to certain protections into an always unforeseeable future with regard to an essential resource and the right to sustain and adapt as circumstances arise? For example, can the federal government “lock In” expansion of its nuclear programs and affiliated sites in the State of New Mexico in a way that irrevocably undermines the sustainability and viability of its communities - economic, social, natural - and to such an extent that it threatens the state and its citizens with “termination”?

But of course, as already implied, I am just one of the people and do not sit on any court, Nor am I a lawyer with any insight into legal precedents that may be relevant. That said, another sobering tale on the occasion of Thanksgiving Day. Wishing everyone at CENSORED NEWS and elsewhere a happy, healthy Green or Outdoor or Visit Great-Grandmother Friday,

Unknown said...

Hi Lloyd,

I wrote a detailed comment per yours, then lost it in hyperspace. I'll be brief this time. Well done, by the way.

The struggle for tribal survival is as intense today as it was when tribal patriots like Sitting Bull and Crazy Horse stood up for their people.

But, much like today, there were tribal members back then who were reached, influenced, and even controlled by outside interests; and convinced to help sell out their tribes or certain members of their tribes. Various means were employed--control over rations, $, new homes, conveying the title "chief," business advantages, political appointments, prestige, and so on--just like every other human community has going on. (Sitting Bull and Crazy Horse were killed by fellow tribal members, with the guidance or assistance of Anglo interests).

On the legal technicality questions you raise, the property rights protections under the US constitution are well established. Once rights are confirmed, whether in water or other property, they are protected. If there is such a shift in realities at some future time, the property rights regime can accommodate it I some way, e.g., in the most dramatic of times, the Civil War and the 13th amendment ended property rights under slavery. For now it's tribal survival at issue, and both internal and external forces are working to subvert it.

Thank you for your very thoughtful remarks and inquiry.

Jack Utter

Unknown said...

Dear Lloyd, this is my 3rd attempt to reply to your very thoughtful comment. My 2nd was shorter than the 1st (they somehow went into hyper space), and this is shorter still.

The Indian wars are not over. There were those tribal members and agents in days past who chose to serve outside interests over their tribes. My wife and I see it around us all the time. Both Sitting Bull and Crazy Horse--real human beings with interesting names--were killed by fellow tribesmen won over by what Anglo authorities offered and provided them. The same happens today. Tribal patriotism is endangered, and has been since first contact.

Full water rights under the law are but one example of something absolutely essential to tribal survival, especially for a tribe like the Navajo Nation with so large a land base and 300,000 members. But outsiders have, for and the outsiders' interests, and not the tribe's. Human nature at work, as always.

If there is going to be a Navajo Nation in the not too distant future, the brakes must be instantly applied against the exploiting interests and their agents in the Navajo Nation government. This exploitation is so rampant, and nowhere more apparent than in the water rights arena.

As to changing conditions in the future and the need to reallocate or otherwise end rights, that is handled in our property rights system by the market, the courts, and sometimes the military and the people, e.g., the Civil War and the 13th Amendment ending slavery and the "property rights issue" associated with it, such rights having been protected under the Constitution--which never should have and which took the Civil War to correct.

Jack Utter

Lloyd Vivola said...

Hello Jack,

Thanks for taking the time to express your thoughtful replies. I'll respond point by point in order not to ramble on:

1) Respectfully, I am well aware that the Indian Wars continue today with potentially dire consequences for many Native Nations, and I agree that so it should always be stated.

2) Note that my imagined, parallel examples regarding the State of New Mexico were rhetorical with regard to and in support of the Navaho people and their ability to maintain economic stability and ecological sanity by some lasting measure of sovereignty.

3) I first thought of the "you have no right" approach since I have read that some environmental activists consider this legal tactic against polluters, etc., in specific situations instead of trying to defend the rights of a river, a species, a community, etc.

4) I was struck by the word "termination" which, as I understand, is a legal process and if so would, I imagine, be eligible to judicial and even Constitutional review on a case by case basis.

5) Ah, property rights. Well that is a bit out of my league since I do have a reputation for rolling out a sleeping bag under the stars with respect for all our relations. But I will look into that topic further based on some of your comments and clarifications. So thanks again for pointing the way. In the spirit of being better informed.

Lloyd Vivola

Unknown said...

A last comment. Federal recognition (and therefore termination) has been determined by the US Supreme Court, long ago, to be a political issue and not a legal one. Congress has plenary (nearly absolute) power over Indian affairs, especially those that fall under the political label. So, a tribe can be terminated by Congress nearly overnight if Congress decides to. Then Congress is basically only required, under the Constitution, to compensate the tribe for property the title to which has been recognized by the Congress at some time over history, e.g., the reservation land.

Thank you again. J.

Lloyd Vivola said...

Sadly, the facts and history thereof regarding the United States and Native Nations seldom surprise. Thanks again, Lloyd V.

Unknown said...

Speaking of faucet water, the rest of the story is where the majority of Colorado River water goes. That would be irrigated agriculture downstream in southern Arizona and California. And the two crops that use by far the most water are alfalfa and cotton. Alfalfa is used almost exclusively for cattle feed. That's right, the vast majority of Colorado River water, and by extension, Navajo Nation reserved rights water, is used to feed cattle. This enterprise is subsidized by the US Bureau of Reclamation and US Dept of Agriculture. Central Arizona Project is 5th-priority water that is subservient to the rights of the irrigation districts that waste millions of acre-feet on unnecessary crops like alfalfa. The Navajo Nation needs to do a study of the state of water usage in the Colorado River basin, with an eye toward determining the best way forward that will permit the nation to take advantage of its vast amount of reserved, but unused, water rights that are currently being used by the Power Structure for corporate purposes.