Twelve SHOCKERS & TRUTHS about the: Northeastern Arizona Indian Water Rights Settlement

[ 2010, The Din Water Rights Groups]

CONTENTS
1.

TREATIES ARE NOW MISSING (but were used by original lawyers in the 70s & early 80s) ADDITIONAL LITIGATION THREAT IS FALSE & PEOPLES RIGHTS TO PARTICIPATE ARE DENIED MINIMIZING WATER RIGHTS (WINTERS RIGHTS WAIVED) & VIOLATING HUMAN RIGHTS WAIVER OF PRESENT CLAIMS OF $2 BILLION (future LCR irrigation effectively precluded) AZ WATER BANK MOSTLY SERVES SELF, OTHER STATES, & SUBDIVISION DEVELOPERS WITH WATER FOR HUNDREDS OF THOUSANDS OF HOMES

2.

3.

4.

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6. AGRICULTURAL PURPOSE EXCLUDED

7.

POLLACKS ESSAYIST: NAVAJO HAS NO AGRICULTURAL LAND

8. JON KYL, ANTI-INDIAN WATER RIGHTS ATTORNEY

9.

REFERENCES: WATER RIGHTS CLAIMS IN MILLIONS OF ACRE FEET LAWYER CONFLICT OF INTEREST

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11.

FEDERAL SELF-DETERMINATION POLICY VIOLATED: WESTERN NAVAJO PIPELINE IS NOT NAVAJO (project loss and jobs loss) LAKE MEADS HISTORIC LOW MEANS WE MAY NOT GET WATER
[Details for all 12 Continue on the Following Pages.]

12.

DETAILS ON THE 12 SHOCKERS & TRUTHS

1. TREATIES MISSING. No Arizona tribe, except Navajo, has a treaty with the United States, and we have two of them1849 and 1868. Neither is used or even mentioned in the settlement. The same thing happened with the San Juan settlement. After complaints, the treaties were given only lip service in the final San Juan settlement. How is it we Navajos can allow our supposedly loyal lawyers to continue to deny our Treaty rights? (Important: The U.S. 9th Circuit Court of Appeals reports in its 1981 ruling in Navajo Nation v. U.S. that the Navajo Nation brought this action . . . seeking a declaration of the Tribes rights to the Little Colorado River under its treaties with the United States and various federal statutes and orders (emphasis added). What happened to our Treaty Rights after lawyer Pollack arrived in the mid-1980s? On the strength of our Treaties rests our largest water rights claims.) 2. (A) LAWYERS AND WATER RIGHTS COMMISSION DENY AND DISCOURAGE THE NAVAJO PEOPLES RIGHTS TO PARTICIPATE IN THEIR OWN LITIGATION SETTLEMENTS and (B) THE PEOPLES CHOOSING TO STUDY AND IMPROVE THE SETTLEMENT THROUGH AN APPROPRIATE DELAY WILL NOT START NEW LITIGATION OR BRING DOWN THE WRATH OF A COURT. We are already in water rights litigation. The two principal cases are the Gila River basin adjudication and the LCR basin adjudication. Thats what the settlement is forto settle the old litigation. We have been in each case for over 30 years, and they will not automatically stop if the Navajo People want to know what it is they are settling for. In fact, the U.S. Supreme
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Court, in the Indian water rights case of Arizona v. California (1983) said that Indians are entitled to take their place as independent qualified members of the modern body politic . . . [and] the Indians participation in litigation critical to their welfare should not be discouraged. 3. MINIMIZING OF NAVAJO WATER RIGHTS (abandoned are Winters Rights that would reserve past, present, and future needs) and VIOLATING OF NAVAJO HUMAN RIGHTS. In 2002, N.N. attorneys tricked the Council into endorsing a 2001 Arizona Supreme Court case they said was a huge win for the Navajo Nation. But, a Native lawyer who graduated from Mr. Pollacks own Michigan law school did a law review article on the case in 2003, in the Michigan Journal on Race and Law. Native Lawyer Galen Lemei has this conclusion about the Arizona Supreme Courts 2001 decision. Tribes were robbed of most of their land long ago. Now, the Arizona Supreme Court reasons that they should also lose the right to the water necessary to reap the full benefit from the little land they have left. . . . It is unfair that tribes should lose their water rights because of [government failure]. The Arizona Supreme Court [has now] established a standard that gives tribes a shadow of what they had before. In the fight for western water, the tribes [in the Arizona case] are the losers. The Arizona case Pollack praises calls for minimizing Indian water rights, and is contrary to federal precedent. (The case was decided in November of 2001, and tries to set a precedent through the Gila River adjudication.) In this anti-Indian case, the Arizona Court says that a minimalist approach must be taken to Indian water rights. The court mistakenly relies on two U.S. Supreme Court cases as authority. They are Cappaert v. U.S. (1976) and U.S. v. New Mexico (1978). The first one dealt with federal reserved water rights for a rare and curious desert pupfish inside Devils Hole in Death Valley, California. The second case dealt with federal reserved rights for the trees and animals of the Gila National Forest in New Mexico. In both cases the Supreme Court said that minimal need was the standard for the amount of water that could be reserved for each location. (The dictionary says
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minimal means least possible. Note: the fish and the forest are not humans.) Never has the U.S. Supreme Court applied a minimal need standard to human beings, including American Indians. In fact, in footnote 4 of the Gila National Forest case, the U.S. Supreme Court employed the term reasonable quantity of water in reference to the case of Winters v. U.S., the famous Indian reserved water rights case of 1908. Now, the Arizona Court, and the Navajo Nations lawyers, have abandoned Winters Reserved Rights and are applying the minimal need concept for the first time to human beings. This is a Human Rights violation. That is one reason Native lawyer Lemei published his law review in the Journal of Race and Law. 4. WAIVER OF PRESENTLY IDENTIFIABLE INJURY AND COMPENSATION CLAIMS OF OVER $2 BILLION DOLLARS. (This does not consider the likely future $1 Billion worth of free use of Navajo water for NGS allowed through the settlement waivers. It is important to note that a waiver in the San Juan Settlement, of our downstream ownership of NAPI/NIIP water, costs us up to $100,000,000 per year, and more, from lost lease revenues for water that flows downstream. This right was waived in the San Juan settlement.) a. $160,000,000 ownership value (@$4,000/af). Waiver of priority rights to 40,780 afy for historic irrigation uses in upper LCR area on the Reservation. See pp. 22-23 of the proposed settlement. Our unused water from the LCR is claimed and used by Arizona for banking of water and other purposesfor free. b. $1 Billion past use by Navajo Generating Station. At the already regionally applied industrial lease rate of $1,000 per acre foot, NGS has used more than $1 Billion worth of Navajo water (34,000 afy for some 35 years) during its operational life. It has done so for free.

c. $420,000,000 in ownership values (@$4,000/af). This is for the 105,000 afy identified in the BIA Navajo Water Rights Study of 1982 for a 20,000 acre farm NE of Leupp to serve the Leupp, Birds Springs, and Tolani Lake region with forage and other crops, as well as local jobs. A 77,000 acre foot irrigation lake would have served the farm, which was determined to be economically feasible. d. $1.6 Billion for the 160,000 afy of water that flows through the Nation past the Cameron gaging station. When this water reaches the Colorado, its ownership value is no less than $10,000 an acre foot. Navajo is prohibited from owning this water in the settlement, and can only use what it can capture/divert, and will have a junior priority date to that captured. Future irrigation development on the LCR is also effectively precluded to Navajo in the settlement. There is reference made that any future reservoirs be primarily for municipal use. Additionally, Navajo is restricted to diverting water from the LCR that reaches the Reservation (p. 22). In a somewhat cruel irony, this is what started the Winters Doctrine case for the Fort Belknap Reservation in Montana. The upstream farmers had told the tribe they could use whatever water reaches the reservation. But there wasnt enough and there was no reliable priority. That situation for Indian tribes is what the Winters doctrine case got rid of. Now the settlement is throwing us back to pre-Winters doctrine times. This is an incredible irony. (But, Navajo could demand to own this LCR water, let it run to the river, and then trade for and take clear water from the Lake Powell and/or lease the water downstream for revenue to fund on-Reservation economic development. The waters value, Navajo Winters rights to it, and our peoples future demand this be done.) 5. ARIZONA GETS TO BANK, FOR FREE, OUR UNUSED WATER THAT FLOWS PAST US. Arizona has two water banking programs. Through these programs, Arizona takes unused water and puts it underground (a) for other states, (b) in preparation for shortages, and (c) to establish a housing subdivisions program to

help Arizona developers justify building hundreds of thousands of homes. 6. AGRICULTURAL PURPOSE OF THE RESERVATION EXCLUDED FROM HOMELAND PURPOSE OF THE BY LAWYERS. Cohens Handbook (2005), known as the Bible of federal Indian law, declares under its Indian water rights section, at page 1185, that One purpose of virtually all reservations is agriculture. Our Treaties jointly establish this purpose. We can see that the agricultural purpose is excluded from the Settlement (as it was in the San Juan settlement) because a joint homeland/agricultural purpose would justify water rights claims several thousand percent higher than is presently the case in the Arizona settlement. Today, at least 80% of Arizonas water is used for irrigation. 7. POLLACKS ESSAYIST: NAVAJO HAS VIRTUALLY NO AGRICULTURAL LAND. Stanley Pollack went to the U. of Michigan law school. In 2009, the University journal, Michigan Today, interviewed Pollack and reported, among other troubling information, two absolutely incorrect declarations (I) prior appropriation, or use-it-or-lose-it, applies to Navajo water rights and (II) virtually none of the reservations 26,000 square miles is suitable for agriculture. (Available on the Internet.) In 1961, R. Young and the BIA Navajo Area Office prepared and published a soils report in The Navajo Yearbook 1951-1961. They noted that the Nation has 13 million acres of irrigable land, including 1.6 million acres of excellent soil, 3.5 million acres of good soil, 4.4 million acres of fair soil, and 3.4 million acres of poor soil. Thus to say that virtually none of the reservation . . . is suitable for agriculture is an outrageous and anti-Navajo declaration to makeeven applying the concept of practicably irrigable acreage to the soil numbers. NAPI is 110,000 acres of instant proof of the outrageous statement. 8. JON KYL, ANTI-INDIAN WATER RIGHTS ATTORNEY. In the 1983 U.S. Supreme Court case on Indian water rights of Arizona v. Navajo Tribe of Indians, Jon Kyl represented the state. Simon Rifkind represented the Tribe. Kyl is now the U.S. Senator who is
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allowed to control Indian water rights settlements. He also served Salt River project on its NGS issues. 9. WATER RIGHTS CLAIMS IN THE MILLIONS OF ACRE FEET. A SAMPLE. a. In the 1970s the Navajo Nation openly discussed claiming 2/3 of the annual flow of the Colorado River, or about 10,000,000 acre feet. (Dr. Phillip Fradkins famous 1995 book on the Colorado River). b. In 1980, Interior Solicitor Doug Back and Navajo Nation lawyer Jeff Taylor suggested in a law review, in the prestigious Natural Resources Journal, on Navajo Water Rights that the Navajo Nation could establish a tribal entitlement (not a claim, but an actual entitlement) to Colorado River Water of 2,000,000 acre feet with just over 3% of the land area. (In the past, Pollack cited and employ this reference (in the 1990s and in 2000, we have printed references) when explaining to outside audiences (but not to Navajo Nation audiences) what the potential rights of Navajo might be.) c. In 1986 attorney Gary Weatherford and Dr. Lee Brown published a famous book on the Colorado River and related water issues, and stated the expected Navajo claim for Colorado River water would be in excess of 5,000,000 acre feet. Az. Governor Bruce Babbitt wrote the books foreword. d. In 1991, law Professor Lloyd Burton published a renowned book on Indian water rights and stated Navajo might well have a Colorado River Basin entitlement of 5,000,000 acre feet. e. In 1997, N.N. lawyer Stanley Pollack declared before the Santa Fe crowd at the 75th anniversary of the 1922 Colorado River Compact, that he could not see a Navajo Nation claim to the Colorado basin of anything less than 5,000,000 acre feet. (Statement published by the
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University of Arizona in the Arroyo Journal, Vol. 10, No. 1., and available on the Internet.) f. In May of 2000, four National experts on Federal Indian Law and Indian Water Rights Settlements, including the current Dean of the University of Colorado Law School and Vine Deloria, Jr. (the late and internationally renowned American Indian scholar) recommended and/or endorsed an immediate Navajo Nation claim to the lower basin of the Colorado River in the amount of 10,000,000 acre feet (by filing in the case of Az. v. California, which closed forever six years later). The core recommendation, by three of the experts, was shared directly with President Kelsey Begaye, following a two day seminar on the subject. When the recommendation was presented to Stanley Pollack several days after the seminar, in 2000, he refused to act then, and maintained that stance. Then Pollack and his supporters engaged in a pressure and smear campaign to get the experts to back off from their recommendation. 10. LAWYER SCOTT MCELROYS CONFLICTS OF INTEREST. Stanley Pollacks key assisting attorney, Scott McElroy (and his law firm in Boulder, Colorado) have and have had clients in the lower and upper Colorado River basins whose interests are in competition/conflict with ours. If the N.N. had followed the expert advice described in f. above, and filed in Az. v. California (which ended in 2006), McElroy could not have participated and would have had to forego whatever millions his law firm has made over the past decade or so off the Navajo Nation. By not filing, Navajo rights were enormously minimized and jeopardized, while McElroys firm stayed on the payroll. 11. WESTERN NAVAJO PIPELINE IS NOT NAVAJO. Exactly like The Navajo Generating Station is not Navajo, the Western Navajo Pipeline will not be Navajo- constructed or Navajooperated. Self-determination contracts with the Interior Department for the pipelines construction and operation are prohibited by the settlement. Then what is NECA for? What is
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NTUA for. Where do our increasing numbers of college graduates with professional, technical, and engineering degrees go for work? This is obvious anti-Navajo discrimination and contrary to the federal Self-Determination policies. 12. LAKE MEADS HISTORIC LOW MEANS WE MAY NOT GET WATER. Lake Mead is at its lowest level ever since 1937. Arizona and Nevada are junior rights holders to the Colorado River. And, in Arizona, CAP water is junior to main stem Colorado River water. And, 4th priority CAP water is 4 levels down on the already double junior CAP water. If LakeMead goes much lower, it will trigger the drought plan that reduces Arizonas share. The first cut will be 320,000 acre feet. Thus, under present circumstances, the CAP water we are being offered is already at risk before we even get any. This hazardous circumstance cannot be tolerated in a new water settlement that is to last us forever.

WATER IS LIFE! PLEASE VOTE NO

[The Din Water Rights Groups(), 11/4/10]