Water forum planned

By Kathy Helms
Diné Bureau

WINDOW ROCK — Several grassroots organizations will host an education forum Saturday at Ganado Chapter House regarding concerns over Navajo water.

The Diné Bikeyah Water Forum is set for 10 a.m.-3 p.m., with lunch provided. The meeting will be filmed live by KTNN.

Continuing drought and encroachment of economic development on Navajoland have raised concerns that some residents could risk losing their source of domestic water. "Many water wells that have been in use for years are no longer producing water or are now contaminated," according to Anna Frazier, coordinator of Diné Citizens Against Ruining Our Environment.

Frazier and Calvin Johnson of C-Aquifer for Diné in Leupp are among those hosting Saturday's meeting. A recent water education forum in Dilkon sponsored by the grassroots groups featured former Navajo Nation Chairman Peter MacDonald, who spoke regarding the Nation's plans during his administration to assert its water rights.

The history of the Navajo Nation government has been to give water away for corporate use without input from local residents, according to Diné CARE.

"Our Navajo government is racing forward looking for ways to produce jobs, dollar revenues, every which way, but without the voice of our people," Frazier said.

"Our Navajo Nation government is pushing right along to produce required energy that Bush has mandated and to do that requires millions and millions of gallons of water on our Navajo land for the next 50 years," she said.

The bottom line
"We understand that the Colorado River was divided up among seven western states, including Arizona, back when the first horse-drawn wagon was introduced to our people. The agreements were drawn up without a single Navajo at the negotiating table," Frazier said.

"The bottom line is Diné people were here first and have inherent right to the Colorado River, N-Aquifer, C-Aquifer, Morrison Aquifer, and every river that is in between the Four Sacred Mountains. When are we going to claim ownership to it on paper and utilize it for ourselves?" she asked.

Diné CARE said population on the Navajo Reservation and in the United States is growing rapidly and the Navajo people have to think about the future of their nation.

"If we don't do a thing about it and continue to sit back and put all the negotiations responsibility in the hands of our government, soon we will be sitting here high and dry for sure," Frazier said.

Water forum organizers are hopeful the education forum will get the Diné thinking about how to address the water issue. "We need input from all four directions of Navajoland," Frazier said.

Reserved rights
According to "Water Law in a Nutshell," (third edition), by David H. Getches, Dean of the University of Colorado School of Law in Boulder, the reserved rights doctrine was created to assure that Indian lands and public lands set aside by the government for a particular purpose would have adequate water.

The doctrine recognizes rights to a quantity of water sufficient to fulfill the purposes of the reservation of land.

"Although most water rights in the western United States have priority based on when they first were put to a beneficial use, rights on federal and Indian lands have a priority dating back to at least as early as the reservations were established even if water use begins long after others have appropriated waters from the stream," Getches wrote.

To quantify these rights, Congress consented to joining the United States as a party in state court stream adjudications. Generally, however, reserved rights are not subject to state law, he said, and once asserted, can have an important impact on the quantity of water available to non-Indians in the future.

Getches cited the 1963 Supreme Court case, Arizona v. California, which held that reserved rights extend to protecting future reservation uses and are not limited by the population or needs of the Indians.

"The Indian reserved right is not extinguished except by express legislation, even after the reservation is terminated and the land sold off, so long as there is a continuing purpose to be served," Getches wrote. In United States v. Adair (1983, 9th Circuit), a tribe was allowed to retain unextinguished fishing rights by asserting Indian reserved right.

Conflict of interest?
In Winters v. United States, which arose from a conflict between Indians of the Fort Belknap Reservation in Montana and non-Indian settlers over waters of the Milk River, the Supreme Court held that although non-Indian settlers had established rights to the river and had begun using water before the Indians, the Indians held a prior water right.

Getches said the homesteaders began using water from the Milk River for irrigation, perfecting their water rights under Montana law. A short time later, the Indians began diverting large quantities of water for irrigation.

"The settlers diverted water upstream from the Indians, preventing them from getting sufficient water. The United States then brought suit against the settlers on behalf of the tribes," he wrote.

"However, because the federal government invested heavily in water development projects that enabled non-Indians to use vast quantities of water subject in inchoate Indian rights, a conflict of interest may arise when the federal government represents tribes," Getches said.

The Secretary of Interior plays a dual role as administrator of the Bureau of Reclamation and trustee for Indians.