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Navajo Water Settlement Is an Exercise of Sovereignty

A column by Harrison Tsosie about Navajo water rights.

As Navajo people pause to reflect on the Nation’s progress in the 144 years that have passed since the signing of the Treaty in 1868, my thoughts turn to another important decision facing the Nation. The Navajo Nation is currently considering whether to approve a settlement of the Navajo Nation’s water rights claims in the Little Colorado River Adjudication. Unfortunately, non-lawyers who are misinformed about the settlement are flooding the media with inaccurate and misleading statements. As the Nation’s chief legal officer, I feel it is my obligation to set the record straight.

The question facing the Nation is this: Should the Nation continue to litigate its claims in state court where a decision will be many more years in coming and the only result can be limits on Navajo uses, or should the Nation settle its claims now, protect the waters of the LCR that are rightfully ours from being taken and developed by outsiders, and start putting water to use with water delivery projects funded in the settlement?

First, let’s review the litigation option. In 1979, the State of Arizona initiated this Adjudication, a massive lawsuit filed in state court in St. Johns, Arizona, that joins over three thousand parties that claim rights to use water from the Little Colorado River, its tributaries and the groundwater within that basin. Previously, the Navajo Nation filed a similar action in federal court and fought the State of Arizona all the way to the U.S. Supreme Court to keep the litigation of the Nation’s water rights out of state court.

Unfortunately, the U.S. Supreme Court held that the Navajo Nation could be forced to participate in the state court Adjudication because when Congress waived the sovereign immunity of the United States in 1952 through the McCarran Amendment it also waived the immunity of tribes.

The efforts to quantify the Nation’s water rights have been an exercise in sovereignty. Over the last 33 years, the Navajo Nation has simultaneously pursued its water rights claims in the state court litigation and worked to negotiate a settlement of that litigation and those claims. The settlement agreement is the result of years of hard-fought negotiations.

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To those who say the LCR Adjudication Court will recognize only the Nation’s “minimal needs” for the future I ask, then why reject the settlement in favor of litigation in state court? The settlement maximizes the Nation’s water rights claims.

The water rights recognized in the settlement are based on all legal theories the Navajo Nation has asserted in court, including aboriginal rights, and federal reserved rights (also known as Winters rights), which include historic uses. The settlement agreement is written to maximize the Navajo Nation water rights by providing for unlimited use of most of the water resources in the LCR Basin.

To those people who argue that Navajo water rights can be protected only by quantifying them, I say “quantification” is just another word for limit. Again, why reject the settlement in favor of litigation in state court where the only possible outcome is limits on Navajo Nation uses?

Finally, to be clear, this settlement deals only with the Little Colorado River basin. Having secured water rights in the settlement agreement to meet the Nation’s current and future needs in that basin, as is the case with all litigation settlements, the Nation must waive any additional claims to water it might have in the LCR Adjudication. The waivers of claims in the settlement agreement only apply to the Nation’s LCR claims; Navajo Nation claims to the main stem of the Colorado River in both the Upper and Lower Basin are preserved for another day.

I support the Navajo-Hopi Little Colorado River Water Rights settlement because it maximizes the Nation’s water rights. In addition, the settlement provides for the construction of water delivery projects that will turn paper water rights into a clean, reliable drinking water supply to benefit Navajo families for generations to come. A state court decision, when it finally comes many years from now, will do neither of these things.

Harrison Tsosie has served as the attorney general for the Navajo Nation Department of Justice since 2011. His educational background includes a bachelor’s of science in psychology and an associate of science degree in Native American studies from the University of Utah. He received his juris doctorate degree from the University of Utah in 1995. He was a former deputy attorney general of the Navajo Nation.