November 28, 2008

Navajo water a wild card in river's future

Old rights: 1908 decision gave tribe part of the river

By Patty Henetz
The Salt Lake Tribune

The commission that created the 1922 Colorado River Compact knew that Mexico, the Navajo and other tribes had rights to the river, but when it divvied up the presumed 15 million acre-feet annual flow, it didn't define the claims.

In 1944, the United States and Mexico agreed that Mexico would get 1.5 million acre-feet per year, resetting the assumed baseline river flow at 16.5 million acre-feet. Four years later, the commission set the Upper Basin states' shares on a percentage basis rather than an absolute allocation.

Still no mention of Indian tribes, even though an 1850 treaty with the Navajo Nation, reinforced by a 1908 Supreme Court ruling, guaranteed water rights necessary for a permanent homeland.

In 2003, the Navajo Nation sued the Interior Department, seeking to force the U.S. government to, at last, quantify the tribe's rights.

Some Navajos say a strict interpretation of the treaty and the 1908 ruling in Winters v. United States shows the tribe's rights trump all others because they were affirmed before the 1922 Colorado Compact.

Navajo leaders, however, are pursuing negotiations rather than going back to the Supreme Court. That's because they realize the justices could wipe out the earlier Winters ruling.

The approach has polarized Navajos, with some alleging the tribe's attorney, Stanley Pollack, a white man, isn't fighting hard enough.

Political science professor Dan McCool, who heads the University of Utah's American West Center and has written books about Indian water rights, praises Pollack.

"What his critics don't understand is the Winters decision is just judge-made law. It's never been in statute," McCool said. "Both sides realize if they go to the Supreme Court, they could win big or they could lose big. That's why so many cities and counties and states want to negotiate with the tribe."

The Navajo Nation could claim up to 100,000 acre-feet of water in Utah and up to 800,000 acre-feet in total. That prospect should have an impact on planning for the Lake Powell Pipeline, McCool said. "Navajo claims make it even more risky."

No one believes the Navajo would use all the water to irrigate corn and potatoes in the desert. But the U.S. Bureau of Reclamation has estimated more than 30 percent of Navajos on the reservation have no plumbing.

The bureau calculated the lack of running water costs the equivalent of nearly $113 per thousand gallons because tribal members must pay to have water hauled or go to water vendors and truck it themselves.

McCool said negotiations could result in an agreement that would allow tribes to lease their rights. "Some of the people downstream and upstream are going to be paying rent to the Navajo, which actually isn't a bad idea."