Navajo council rejects proposed water settlement

A proposed water-rights settlement involving the Navajo Nation, Hopi Tribe and Little Colorado River was decisively rejected by the 24 delegates of the 22nd Navajo Nation Council on July 5.

Diné Water Rights Committee and other supporters are happy in Window Rock, Ariz., after the 22nd Navajo Nation Council voted down the Navajo-Hopi Little Colorado River Water Settlement Agreement and Act of 2012. Pictured (from left) are Ed Becenti, Wenona Benally Baldenegro, Roberto Nutlouis, Sarana Deal Riggs, Elsa Johnson, Wahleah Johns, Audrey Narindrankura, Cedric Johnson, Nicole Horseherder, Jihan Gearon, Ronald Milford, Aaron Simonson, Janene Yazzie, Jerrison Nutlouis, Jeremy Fredenberg, Adelbert Simonson, Shannon James and Leonard Gil. Photo by Jerrison Nutlouis

Navajo Nation council chambers were packed to standing room only that day during a successful petition to call a special session convening the council delegates representing all 110 Navajo chapters. The purpose was to consider two pieces of legislation sponsored by delegates addressing a proposed water-rights settlement agreement.

Only six of the 24 delegates voted to support the Navajo Hopi Little Colorado River Water Settlement 2012. Cheers and applause rang inside the chamber building from citizens quietly awaiting the tally in the chamber gallery seating during the debate that lasted until late in the day.

The six were: Lorenzo Bates, the only one of the six not from the Eastern Navajo Agency chapters, George Apachito, Mel Begay Danny Simpson, Edmund Yazzie and Johnny Naize, Speaker of the 22nd Council, who sponsored the legislation 0230-12.

In his introductory statement June 9, Naize said he did so in order to get the dialogue on the controversial issue opened for debate.

“There is no single individual who can determine where this conversation will lead us…no single individual who can determine whether the 22nd council will approve or disapprove the water-rights settlement and no single individual who will make this decision for the people,” he said.

Birthday gift

But the public debate had been fuming for five months prior to the Navajo council legislation when the issue was officially launched into the public discourse Feb. 14. It was Arizona’s “birthday present,” said Sen. Jon Kyl, referring to his state’s centennial year, in his opening remarks for Senate Bill 2109, the Navajo-Hopi Little Colorado River Water Rights Settlement Act of 2012 that he is sponsoring with Sen. John McCain.

In a recent email to the Free Press, McCain wrote, “Unfortunately, a great deal of misinformation has surrounded this bill. S. 2109 is not a ‘water grab’ nor would it force tribal governments to transfer more water to coal mining activities on the reservation. On the contrary, it would require that the federal government fully fund the drinking water pipelines before any water rights claims are officially settled. More importantly, Senator Jon Kyl and I have assured both tribal councils that they have to approve the settlement agreement before Congress will consider the bill.”

The settlement agreement offers the tribes more than $340 million in federally funded water infrastructure that would deliver potable water to Navajo and Hopi communities via two pipelines stretching across the interior of the reservations, but not to the western chapters.

In addition, according to Stanley Pollack, assistant attorney general, Water Rights Unit of the Navajo Nation Department of Justice, the tribes get all the groundwater “that falls on it [the reservation], arises from it and flows through it.”

In exchange the tribes would be required to waive all future water claims to the Little Colorado River and extend leases to the Navajo Generating Station power plant to the year 2044.

Navajo Nation Council Delegate Katherine Benally introduced a second resolution for consideration in the special session. It opposed the waivers and the lease extensions in the water-settlement agreement.

Following the “opposed” vote on Naize’s resolution, the council voted to support Benally’s resolution approving opposition to the waivers and the lease extensions that included NGS in the settlement and also asking that Navajo citizens be included in future re-negotiations.


During the months prior to the special session, President Ben Shelly and the Navajo Nation Water Commission launched a series of forums at chapter houses throughout the reservation. The meetings were intended to educate the Navajo people on the settlement details and to persuade Diné that the settlement would benefit them.

A PowerPoint presentation described terms of the water negotiations, and rights language, parties to the settlement, benefits to the tribes and the history of the water settlement. It was accompanied by a commissioner explaining the presentation in the Navajo language.

But by the time the forum schedule was announced, many Diné were skeptical about the administration’s effort. Grassroots organizations countered with their own education effort. Diné Water Rights, Forgotten Navajo People and Black Mesa Water Coalition held their own forums on-line.

Citizens who attended the administration’s forums came ready with incisive questions and statements, mostly of opposition. Placards and demonstrators proliferated at each forum and charges that the Shelly administration had shut out the voices of youth began to surface after the forum held in the remote Piñon chapter.

The public opposition grew focused on the need for inclusive, transparent negotiations, as well as opposition to vague waivers of future water claims and the absolute severance of NGS lease extensions from the settlement.

In addition, demands that council delegates represent the opinion of the people sent a message that each chapter wanted a say in the vote. The current 24 council delegates were elected on issues around transparency and accountability and the people began attaching this issue to their determination to hold the council accountable to their constituency.

As the session drew closer, votes in the subcommittees of Resources and Development, Economic Development and NABI (see Free Press, July 2012) reflected a growing delegate opposition to the settlement agreement. The movement also took a turn toward independence and self-determination and the possibility that the Navajos can build their own infrastructure filled with their own potable drinking water from the water that has always belonged to their people through indigenous water rights and the 1908 Winters Doctrine.


But Shelly was determined to stand by the settlement. In a statement issued July 5 after the vote, he said, “I’m very disappointed that the Navajo Council didn’t pass the legislation today. I wanted it to be approved with amendments to portions of the legislation the council didn’t like. The settlement would have protected the river from new development and provide money to build water lines for thousands of Navajo people. I want to thank the six delegates who votes in favor of the settlement. They showed courage and vision by electing to think of the entire Navajo Nation and our People.”

Two weeks later, in his State of the Navajo Nation address to the summer session, Shelly reiterated his promise to keep government transparent and accountable and cited his effort to take the issues directly to the people on the water settlement as an example.

On the settlement vote, he added, “Nearly two weeks ago … our Council also passed legislation that disapproves the LCR settlement. I will veto this legislation, unless we can work with the Council and provide some amendments for a settlement that we can all agree upon.”

During the following comment period, Katherine Benally said, ”Transparency? How are you transparent when the Little Colorado River settlement was voted down, and that legislation should not have gone for your veto? What went across, Mr. President and Vice President, was my legislation that opposes Senate Bill 2109. But your report doesn’t allude to that. There’s trickery going on here. That’s not transparency. There’s a lot of misleading,” she said.

“The intent of the legislation citing a number of reasons why council opposed the bill, was for the parties to come back to the table and restart negotiations. I am in agreement with redoing the agreement, but my legislation needs to be forwarded to Congress,” she said. “It needs to go and tell them why we’re opposing it [the settlement agreement].”

Shelly’s disappointment and threat to veto the vote and bring back the settlement during the summer session contributed to efforts on July 10, instigated by former Navajo President Milton Bluehouse, Sr., and seven other Diné citizens, to recall Shelly and Vice President Rex Lee Jim.

The Navajo Nation election code states that any elected official may be removed from office if 60 percent of the registered voters who voted for them in the last election file a petition seeking the official’s removal. The Shelly-Jim ticket received 33,784 votes, meaning 20,271 signatures would be needed to remove them from office.

The recall group’s original affidavit, filed July 10, stated: “President Shelly failed his oath of loyalty, accountability, and good faith to the people, and has proven incompetent and incapable.” It also listed 12 additional charges, including, “Abuse of the people through misuse of the police, and violation of our Bill of Rights at his ‘public forums’, and, “Total disinterest in protecting our natural, cultural, spiritual and environmental resources.”

However, on July 12, the Recall Shelly and Jim Committee was notified by the Navajo Election Administration that four of the eight members did not meet tribal statutory requirements to serve on the committee and therefore the committee was null and void.

Since then the recall effort has been regrouping, promising to bring a stronger citizen base to the effort. A posting during the week of July 28 on their Facebook site, “Recall Ben Shelly,” says that it “seems like we all have lost interest in this recall issue, but we also have been working hard on many other issues within the Navajo Nation. The petitions will go out this week. This is not a personal vendetta, it’s a majority of people who are dissatisfied with our leaders.”

No settlement?

On July 24 Shelly signed and approved the legislation that opposes two Congressional bills, saying that he signed the bill because the language of the bills could be amended.

“The Navajo Nation Council and the Office of the President and Vice President have stood in agreement about various concerns regarding U.S. congressional legislation Senate Bill 2109 and House Resolution 4067. Through conversations with Senator Jon Kyl there appears to be a willingness to discuss with the Navajo Nation leadership potential changes to the legislative language,” Shelly wrote in a memo to Speaker Naize.

He outlined some of the reasons for opposition, including Navajo Generating Station, Navajo rights to un-quantified amount of water on the Little Colorado and Colorado rivers, and ambiguous language in the bill.

Shelly said he still supports a Little Colorado River settlement and understands the legislation speaks only to the Congressional bills.

“. . . if there is no water settlement there is no need for Senate Bill 2109 or HR4067,” Shelly wrote. “My concern is by the Navajo Nation Council’s action voting down the LCR Water Settlement Legislation 0230-12 without amending the Water Settlement for counter consideration; the perception is that the Navajo Nation does not want a water settlement. It is imperative the Navajo Nation Council and the Office of the President and Vice President discuss and speak with one voice what the Navajo Nation position is on acquiring a water settlement.”

From August 2012.