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The Navajo-Hopi Water Rights Settlement Act of 2012
On February 14, US Senators Kyl and McCain of Arizona introduced Senate Bill 2109 – the “Navajo-Hopi Little Colorado River Rights Settlement Act of 2012.” The bill asked the Navajo and Hopi peoples to waive aboriginal Water Rights claims to the surface waters of the Little Colorado River, future claims for damages done to the Navajo Aquifer, and “all claims to injury to water quality arising from time immemorial and thereafter, forever.”
Offered in exchange: $315 million in federally funded groundwater delivery projects that would serve a number of reservation and off-reservation communities; clean, reliable drinking water, protection from over-pumping by off-reservation water users, and potential economic development.
The intended use for the water that the government would acquire was not spelled out, although there is a lot of mining, as well as growing towns and cities in the region. One option in the settlement would have provided Window Rock, the Navajo Nation’s capital, with Colorado River water if the tribe extended the lease for the Navajo Generating Station, a coal-fired power plant. It would have also given the power plant a water right of 34,000 acre-feet. For decades, Peabody Energy, the world’s largest private sector coal company, has been strip-mining coal and pumping aquifer water for slurry transport.
Navajo President Ben Shelly, Hopi Chairman LeRoy Shingoitewa and their supporters, including the Hopi Tribal Council’s Water and Energy Team, endorsed the proposed settlement and portrayed the legislation as a great opportunity. Despite Shingoitewa’s assertion that the settlement would confirm the tribe’s rights to on-reservation surface water and groundwater and reserve a quantity of water from the mainstem Colorado River for a future settlement, he encountered significant opposition from tribal members and a political advocacy group comprised of seven former Hopi tribal chairmen. Hopi opponents argued that the tribe’s Constitution says that the authority of the Council rests on the aboriginal sovereignty of the villages, and that responsibility for ancestral, reserved water rights was never delegated to the Council. Hotevilla, Bacavi and Shungopavi villages independently issued statements rejecting the settlement’s approval.
Tribal leaders were under pressure to make a decision by the end of June to ensure the best chance of the bill’s passage in Congress. However, on June 15 the Hopi Tribal Council, by a vote of 11-4, rejected Sen. Kyl’s bill. And on July 6, Navajo lawmakers voted 15-6 against it. Since the settlement required the blessing of the tribes and other stakeholders, the legislation was, in effect, stopped. The tribes may renew negotiations and go back to state court to quantify their water rights, although the resolution passed by the Hopi Tribal Council (which the chairman refused to sign) prohibits the chairman, the Water & Energy Team and the Council from conducting further negotiations on SB 2109. It also requires that if another water rights settlement comes before the tribe, it can only be decided on by tribal members through a voter referendum (not the Tribal Council) after open consultation and participation with the villages and tribal members.
The Hopi Constitution affords two governments: the representative form, where the villages can send representatives to the tribal council; and the traditional leaders, who govern through spiritual laws. As demonstrated in the recent water rights fray, the two governments have often been at odds. Of the 12 Hopi villages, only four currently have a representative on the Council.
For the traditional leaders, the proposed settlement stirred up issues that go to the heart of the Hopit Qatsimkiwa’at’a (Hopi way of life) and sparked talk of genocide. Some of these leaders embarked on a rare public media campaign seeking public and legislative support to stop the settlement.
Ronald Wadsworth, spokesperson for the traditional religious leadership of the Second Mesa Village of Shungopavi said, “I find SB2109 very disturbing because I think the impact that the US Government has already done to our water quality is so much so that more than half our Indian people have been suffering throughout the years, not only by drinking bad water, but by having no water. It’s going to disrupt the ecosystem; everything will be affected—the environment, the birds, the animals, the trees; every little living thing. They can’t speak, so we should speak for them and say no; defeat this bill.”
Long before the Hopis were granted water rights by Spain and Mexico in the 1848 Treaty of Guadalupe Hidalgo by the US when the reservation was created in 1882, and under the 1908 Winters Doctrine, the Hopis were given a sacred responsibility by the Earth Guardian Maasau. “The leaders do not want to waive any sovereign aboriginal rights to anything, any resources, because they believe they are the stewards and caretakers of this land,” said Wadsworth. “It is part of their universal dedication to the planet and to all peoples. They maintain a harmonic balance.
“Hopi believe that they are the microcosm. What happens here affects everybody throughout the world,” said Wadsworth, a member of the Corn Clan. “When I got initiated into the Men’s Society, as I participated and got ordained into some of the ceremonies, I really began to understand Hopi life and why Hopi was put on this Earth, and what our role is. Each society of people has their own responsibility and were put in specific corners of this world to hold this world in balance. And we Hopi were placed here at this high vortex area. The meridians of this world were placed along these lines to hold this world in balance through our ceremonies. …When my kids grow up, their lives are going to be a complete change from today. But only if we can manage to hold onto what we have to help to keep the balance of the world can we maintain peace and harmony for future generations.”
Leroy Lewis, an elder from First Mesa expressed similar thoughts. “We are practitioners from the “Immortal Being” Maasau, he said. He was taking care of the whole world. He issued his sacred ceremonies to the different clans to perform for him. So we Hopi accepted that and are performing the very very sacred ceremonies, and this includes water. Water is very sacred to Hopi for all the living things on this world. We pray for everybody, not just for Hopi. We pray for mankind.
“We are here on this arid land, so we practice our religious ceremonies. And when we have our circle, water is there with us so we can communicate with one another. The prayers are sent out to the different directions, the four cardinal directions by our messengers; the eagle and other birds we use to communicate spiritually. So when these reach out to the different areas—our prayers, the birds, and our ceremonies are all combined together so that we have rain.
“Hopi refers to, in our language, semidnawa, namidnawa. Semidnawa means working together. Namidnawa means the participants who all come together and work harmoniously. Our religious ceremonies are tied to the water, the elements. During our calendar cycle throughout the year, each clan had been dedicated by the Immortal Being to practice his services in a ceremonial perspective. Then, with that in mind, all the people that are involved with the ceremonial work harmoniously together.”
Lewis went on to tell more of the story of the Hopi’s Original Instructions: “Since man, through evolution, came into being, there was the Red Man, the Yellow Man, the Black Man and the White Man on the face of this Earth. For each of these different ethnic groups, the Immortal Being laid out ears of corn for them to choose. All the groups chose their corn. But the Hopi picked the smallest corn. So the Immortal Being looked at the Hopi and said, ‘You’re the one to whom I will issue what I have been carrying; the traditional sacred ceremonies.’
“So this is something that goes back to the beginning of the Hopi. Now it seems as though the future of the Hopi is uncertain with this big movement to change the way the water flows to the Hopi people. …If the water is restricted, it would break the link, spiritually, because there is a separation being developed, and the people won’t have good hearts in administering the ceremonies because [we were told] the water would be there.
“We have been instructed by the Immortal Being to have harmonic balance for the world. …People from around the world who practice their religious ceremonies, we all pray to the same god. So there’s no difference how we pray and who we are. We just want us to work together so we have this harmonic balance. And we are all brothers and sisters throughout the world so we all need to help one another. We are asking for help to stop this bill so we can continue with our practices, traditional ceremonies, and work for the benefit of mankind, as we have been instructed. We Hopi made a covenant. If we don’t continue, and if there is interference with our ceremonies, and if our hearts, mind, body and soul aren’t there, the Immortal Being will take action. How that will happen, it is up to Him, because prophecy has already been foretold from the Hopi.”
Seth Roffman, editor of Green Fire Times, is a writer and photojournalist. His work has appeared in the Christian Science Monitor, Native Peoples, Native Americas Magazine, Weekly Reader, New Mexico Magazine and many other publications.
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