Following last week’s annual conference of Colorado River water users, the seven basin states are preparing for a second Trump term, and there’s still unfinished business on Capitol Hill.
Arizona has already signed a historic $5 billion Indian water rights settlement with three federally recognized tribes, but neighboring states and Congress still need to ratify the deal before this session adjourns — otherwise negotiations will have to begin anew.
Stakeholders still aren’t seeing eye-to-eye on Arizona’s agreement — the Northeastern Arizona Indian Water Rights Settlement — despite the fact the Navajo Nation and their allies aggressively advocated for it during the Colorado River Water Users Association conference in Las Vegas.
A coordinated campaign ensued.
They even handed out stickers that identified so-called “Navajo Water Heroes,” worn as badges of honor by those backing the tribes, including Arizona’s top water negotiator, Tom Buschatzke.
“And that’s what this sticker is about, reaching consensus,” said Buschatzke, director of the Arizona Department of Water Resources. “In a way that we can see support by all seven states. We hope to make that happen any day now.”
But the Upper Basin states of Colorado, New Mexico, Utah and Wyoming still aren’t onboard, while two-thirds of the 30 tribes along the Colorado River reside in the Lower Basin, which is made up by California, Nevada and Arizona.
The Navajo Nation is literally caught in the middle since its 27,000-square-mile reservation spans Arizona, Utah and New Mexico. Navajo Nation President Buu Nygren stressed his people “shouldn’t be penalized” simply because of geography.
“We should be able to use the water however we want,” Nygren told KJZZ News. “We sit in both basins, and the other states don’t have that problem. Restrictions are tied to us. We’re settling, we’re giving up rights.”
Still, those four states have a say. Buschatzke believed “they don’t want Congress to dictate the law of the river without the agreement of the seven states.”
On top of that, there’s also opposition to letting the Navajo Nation and Hopi Tribe lease their pending water allotments for off-reservation use. Even though at least seven of the 22 federally recognized tribes in Arizona already have the right to do so.
“We want to give the Navajo Nation, the Hopi Tribe, the right on a voluntary basis, to lease their water as they grow into the use on the reservation,” Buschatzke said. “And it’s not so much to provide water in the lower basin of Arizona, that is part of it, but these leases are going to be limited in term.”
Despite the “huge price tags” that come with such settlements, Buschatzke explained “they always run out of money,” so giving tribes total autonomy over their water supply ensures they’ll have the ability to generate revenue and enough capital to ensure these infrastructure projects, like pipelines and reservoirs, get completed.
“That’s what we do in Arizona,” he added. “There’s a lot of good to that. Otherwise, they’re going to end up with a piece of paper that’s not a real use of the water.”
Bidtah Becker, chief legal counsel for the Navajo Nation Office of the President and Vice President and a former Division of Natural Resources director, saw an opportunity to strike a deal with Arizona Gov. Katie Hobbs following decades of bitter litigation.
“There was a question, ‘Could Navajo and Hopi do it?’” Becker asked. “My Hopi friends are back there. We did it. ‘Could Navajo, Hopi and the state parties do it?’ My state party friends are up there. They’re waving at me. We did it, thumbs up.”
“And sometimes, you know, as humans, we have to put our egos on the shelf,” she added. “I’m the one saying settle, settle. … We are a sovereign, and as a sovereign, we have to make the hard decisions, and that’s what leadership is about.”
While New Mexico’s Upper Colorado River Compact Commissioner Estevan López — a former Reclamation commissioner under the Obama administration — recognized that “Navajo folks need water,” he claimed the current proposal has “some really distinct compact implications.”
“It’s not just a simple settlement between the two, and so that’s something we’re keeping our eye on,” Utah Colorado River Commissioner Gene Shawcroft said. “We’ve had our people working while we’re here in Las Vegas all week, trying to find ways that we can come together.”
“And if there is some deadline that we’re missing, I don’t know,” added Wyoming State Engineer Brandon Gebhart, the state’s water negotiator. “Even if we miss this deadline, we’re going to still work with the Navajo Nation to try to get this result.”
If ratified, this would become the largest Indian water rights agreement in U.S. history, ending a more than half-century legal battle for the Navajo Nation to finally access water from the upper and lower basins as well as the Little Colorado River. This deal also resolves outstanding water claims for the Hopi and San Juan Southern Paiute.
“With your help and your support, we’re going to get that done. We’re down to hours,” said Nygren, who made a last-minute plea from the main stage at the Las Vegas conference. “All the partners have been at the table, and I want to commend you for that, for not leaving the table. You’re thinking about us.”
When it comes to water, life on the Navajo Nation is anything but ordinary.
Navajos are 67 times more likely than most Americans to lack access to clean water, partly because they have to haul it. They use about seven gallons per day — compared to 100 gallons by the average American — and many Diné families are forced to reuse that hauled water, down to the last drop.
Chairman Manuel Heart of the Ute Mountain Ute Tribe, which neighbors the sprawling Navajo Nation in the Four Corners area, is all too familiar with their daily predicament. This has been their routine — generations growing up without running water.
“Navajo Nation, largest land-based tribe, still feel like they’re in a third world country,” Heart said. “The quality of the water is pretty poor. If we brought this to our conference today and said, ‘Hey, there’s a bucket over here, a big 50 gallon. … Would you guys drink it?”
The Hopi Tribe, which also benefits from this settlement, has estimated that about three-fourths of those living within the Hopi tribal lands drink water contaminated by naturally occurring arsenic, which has been found to cause cancers and skin lesions. This toxic element is also linked to diabetes and cardiovascular disease.
“Right now, we’re in a survival mode with the water that we have,” said Crystal Tulley-Cordova, the Navajo Nation’s principal hydrologist. “We want to move into that thriving mode and have every opportunity of equity when it comes to clean water access.”
“And in case you were wondering if we can’t get things done with the settlement that we have proposed, this is what it looks like,” she added. “It’s a vulnerable future for the Navajo Nation.”
That upsets Gov. Stephen Roe Lewis of the Gila River Indian Community.
“The basin has, in the past, consistently responded with consensus and common purpose, proving that in all challenges, there is always an opportunity, a path forward,” Lewis said. “What is troubling to me is why we’re not seeing more genuine efforts at building consensus.”
This week, the Valley-based tribe commemorated the two-decade anniversary of its water settlement, which also passed during a lame-duck session and was signed into law by then-President George W. Bush, so Lewis is hopeful they’ll be moving past the holdups and celebrating once again around this time next year.
“Why are my sister tribes being stymied in their efforts to get the consensus they need to move forward with their settlements?” he asked. “What’s causing this? Whatever it is, whether distrust or negotiation tactics, we all have to try to confront the challenge and move forward. Failure is not an option, so let’s just get on with it.”
“We’ve got a Congress that’s willing, is excited,” Nygren added. “All we gotta do is come to consensus. We move, we put it in Congress’ hands. … It would be a great celebration to see President Biden sign off on that within the next couple of weeks.”
“Conversations are moving in the right direction,” Navajo Nation Washington Office Executive Director Justin Ahasteen told KJZZ News days after the conference ended, adding “discussions continue and we remain hopeful, but cognizant that only a few days remain with this Congress.”
So now, is it simply too late?
Nygren, who got running water for the first time while living at Manzanita Hall on Arizona State University’s Tempe campus, gave a final pep talk with a football metaphor: “We got 30 seconds left and the game is going to be over.”
“The Congress is going to be different,” he said. “But we’re at first and goal, and we need consensus so that the center can actually hike the ball and give it to us, and then we can win the game. And win it not for us, but win it for our communities. Because in Navajo, we always say, ‘Diné, the five-fingered people. That includes each and every one of you.’”
