From: Brenda Norrell, Indian Country Today
Published December 23, 2004 12:00 AM

Former Chairman Urges Navajo to Fight New Mexico Water Rights Settlement

TUBA CITY, Ariz. — Former Navajo Chairman Peter MacDonald urged the Navajo Nation Council to reject a San Juan River water rights settlement with the state of New Mexico and instead take the battle for Navajo water rights to court, under the Winters Doctrine, which gives precedence to Indian water claims.


"Once a tribe makes a settlement with the state, the tribe waives its claims under the Winters Doctrine. That is the reason behind this settlement initiated on the part of Congress," MacDonald, 76, told Indian Country Today.


MacDonald said Congress began urging Indian tribes in 1989 to agree to water settlements with states in order to bypass the Winters Doctrine.


"It was done to quiet all the water rights questions in the West," MacDonald said.


"The carrot" being held out to Indian tribes, he said, is the promise of federal money to develop water on Indian lands.


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"That is the carrot. The big catch is the law also states that tribes will for ever waive their claims under the Winters Doctrine." The Winters Doctrine, the U.S. Supreme Court decision of 1908, decided how Indian water rights were to be settled.


"That is still the law of the land. Obviously it is not favoring states at all. The Winters Doctrine says Indians have senior and prior rights regarding water. Indians have the right to as much water as they can put to beneficial use.


"The reason the federal government and states do not want Indian tribes to take advantage of the Winters Doctrine is because it gives tribes first cut of the water they need for tribal purposes. Whatever is left is to be given to the settlers and latecomers. According to the Winters Doctrine, the states are the latecomers."


MacDonald said the Navajo Nation's attorneys are not listening to the people and instead are attempting to persuade them to give up their Aboriginal water rights and enter into the quick fix of a settlement.


MacDonald proposed to the Navajo Nation that an independent study be conducted to determine how much water is available. Then, a determination should be made of Navajo water needs for the next 200 years, including agricultural, industrial and domestic needs.


He said even if it takes 25 million dollars and 25 years, it is better than settling for broken promises, a spoonful of water and a settlement designed to bring water to the thirsty border town of Gallup, N.M.


"We've been waiting for 100 years, so if we wait another 25 years to get the full share of what we are entitled, it is worth it.


"We need a serious study and research done to determine where water will be used in our Aboriginal homelands. If we have water transportation, we can easily put 1 million to 2 million acres of land under irrigation."


With all factors of water use considered, and a projection made for the next 200 years, the Navajo Nation can make a claim against the federal government, instead of the states, he said.


MacDonald urged Navajos and other Indian tribes to be wary of the U.S. government's promise of money in exchange for giving up Aboriginal rights. He questioned how many Arizona Indian tribes who have already agreed to water settlements have actually received the funds promised.


"We have been promised money from the federal government before in return for giving up our resources. The record is clear. They take our resources and we are always left waiting for the money."


The Navajo Nation gave up some of its water to New Mexico in the 1950s. In return the federal government promised the tribe 110,000 acres of farmland and 500,000 acre-feet of water to irrigate Navajo Agricultural Products Industries in New Mexico.


"It's been over 40 years since that promise and we are still waiting. The farm is only half completed and the government wants to quit on us and just leave us with 200,000 acre-feet of water to irrigate 50,000 acres."


In the meantime, MacDonald said New Mexico has been drinking the Navajo Nation's water for 25 years while Navajos wait for full payment and fulfillment of the promise made 40 years ago.


Further, MacDonald said the Navajo Nation was asked to give up some of it water to power and energy companies and in return, the tribe was promised jobs and electricity.


"Today, many of our people are on the doorsteps of those energy companies still trying to get a job. We have over 50 percent unemployment and over 40 percent of our people are still without electricity. Yet, millions outside our reservation are enjoying the benefits and opportunities generated by our water and our resources.


MacDonald said from the 1920s until the present day, Navajos, Hopis and other tribes in northern Arizona have not been entitled to the waters of the Colorado River because the Colorado River Compact gave the water rights to seven Western states: Arizona, New Mexico, Colorado, Utah, California, Nevada and Wyoming.


MacDonald urged Navajos to honor their Aboriginal water rights and not bend to the will of states.


MacDonald said the Navajo Nation should never settle their water rights using a piece-meal approach nor should the Navajo Nation settle its water rights based on recent laws enacted by the states, including the Upper and Lower Colorado River Compact and New Mexico water rights laws. These laws were enacted without the consent of the entire Navajo people.


"Let's remember, waters within the Navajo Nation, regardless of state lines, belong to all the people of the Navajo Nation. Our forefathers fought fearlessly and courageously to protect the land, natural resources, and waters within these sacred mountains because it was their duty and their obligation to the future generation. Many gave their lives or served time as prisoners of war to preserve what rightly belongs to us. They sacrificed much to regain what is rightfully ours."


MacDonald said the proposed San Juan Water Rights settlement is an attempt to pre-empt the Navajo Nation from claiming its rightful share of water within the basin of the four sacred mountains.


"We must not give our water rights away on empty promises."


Source: Knight Ridder/Tribune Business News


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