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....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 Full Story »
Posted by Glenn LaBauve
Interesting introduction to the Navajo Nation's portion of the broader issue of water rights on the Colorado River. Written primarily for the Salt Lake audience, the piece may well provide sufficient context to understand the implications of the article--but anyone unacquainted with water rights in the desert southwest will need to read the related articles in the series to get a comprehensive picture of the problem.
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.”
I’m not an attorney, but I do believe that there is no such thing as “judge-made law.” McCool is discrediting a 1908 US Supreme Court decision supporting an 1850 treaty between the US government and the Navajo Nation. These legal precedents come more accurately under the heading of binding contracts reinforced by the highest legal authority in the land. In the case of the Navajo treaty affirmation, the Supreme Court decision was based on some 121 of years of Constitutional interpretation and 658 years of English Common Law.
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.”
I’d recommend asking the Navajo what they need by way of water, and what they would do with it if they had it. As noted, more than 30% of Navajo on their 2,700-square-mile reservation have no plumbing. Today the Navajo Nation is the largest reservation in the US, with 15 million acres of stark-but-breathtakingly beautiful high desert, and a population of 148,000.
Those unfamiliar with the Colorado Plateau, the River and the desert southwest will be hard-pressed to understand just how critical this issue is. The Colorado River runs 1,450 miles from the western Rocky Mountains to the Gulf of California, draining roughly 242,000 square miles of land, including Wyoming, Colorado, Utah, New Mexico, Arizona, Nevada, and California. The river is the major source of residential and commercial water supplies, irrigation and hydropower in the western desert. Though it passes within 800 feet of uranium mine tailings near Moab, Utah, no radioactive leaching has yet been reported. The river is a major force and attraction in most of the southwestern national parks: Arches and Canyonlands, and its 6-million-year handiwork, the Grand Canyon. Today, the river still runs wild through the 277-mile long canyon, until it reaches Lake Mead at the boundary between Arizona and Nevada. The river then defines the boundary between Arizona and California, in a series of hydropower dams and lakes providing recreation, municipal water and irrigation for Nevada, Arizona, and southern California. Since the 1920s, Nevada, Arizona, California, and Mexico have fought fiercely over water rights from the river to provide for growing cities and agriculture. At issue are both the quantity and quality of the river's diminishing supply of water. The Colorado River Basin has seen rising temperatures since the 1970s, and has warmed more than any other area in the USA. Rising heat, drought, and earlier snowmelt have reduced water volume in the basin, which now has seen seven consecutive years of below-average water flow. Lake Powell, one of the largest reservoirs, is less than half full. Throughout more than 80 years of river exploitation, the Navajo have scarcely been considered in the river's management, and have been bypassed by the water, the power, the crops, and the wealth the river provides. It is their turn to get what they need by exercising their rights.