Forward | Brief Summary | Problem Overview | Current Specifics | What Can Be Done

By Jack Utter **
{Navajo citizens are encouraged to share this with their families and chapter communities.}
*Representing the General Views of, and Published by,
Leonard Gilmore, President
P.O. Box 3291
Tuba City, AZ 86045

**[Publisher's note: Jack Utter is an honorary member of our Dine' Sovereignty Defense Association. We asked him to write this letter for several reasons: he is nationally known for his support of tribal sovereignty; he has written many insightful publications on Indian country issues; and he lives and works on the Reservation. Dr. Utter earned his Ph.D. in natural resources in 1979. He later studied law for two years, choosing not to complete the degree. In the early 1990s he co-negotiated water rights for the Yavapai-Prescott Tribe. In the late 1990s he taught History of Federal Indian Law and Indian Water Rights at NAU, and also worked on the Navajo Treaty Project. Dr. Utter is now employed by the Navajo Nation's Water Code Administration.]

Seize and take from the Indian people, by whatever means, their life-sustaining Winters doctrine rights to water and you take from them the basis for their continued existence as a separate people.
William H. Veeder, Water Rights Specialist, in a 1972 Law Review article.

Some readers may have been my students at NAU. I may have met others during Treaty Day ceremonies at NAU in 1998 & 1999. Or, you may have been among the 10,000 Navajos who visited the original Naaltsoos Sani in the Treaty Room at NAU. I gave many legal history presentations there for NAU's Navajo Program. To those of you I have met, and to all others, I say thank you for your interest. And, as an honorary member of the Dine' Sovereignty Defense Association, I urge you to respond to the general message of this letter.

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Brief Summary
The Navajo Nation's program for water rights, which has been completely controlled by non-Navajo lawyers, is terribly misguided and has lost the Nation hundreds of millions of dollars in water and settlement money over the years. In fact, the program favors outside interests so much that some Navajos believe one or more of the Nation's lawyers are secretly working for outsiders. There is, indeed, some compelling evidence. (The end result, regardless, is the same as if they are serving outsiders.) I also believe the lawyer problem extends to other areas, and that it is the greatest single current threat to the survival of the Navajo Nation. If prompt action is not taken, the Nation is at great risk. If you desire to take back your government and its destiny from the hands of a few suspect lawyers, I believe President Begaye, Speaker Begay, and the Council would ultimately appreciate the people's input and support as the crisis unfolds. In this case, and for many years, the people and the leaders have both been victims. (Leaders can be contacted at the address and phone numbers provided at the end of the text.)

Problem Overview
For over 30 years, legal experts in the seven Colorado River Basin states have wondered why the Navajo Nation has not pursued its water rights claims to the River. Many outside interests are so confident the Nation does not know of or does not care about its potentially enormous rights.

Observers have long speculated the Nation could claim several million acre feet or more. (The Colorado's average flow is about 13 million acre feet per year. An acre foot is the same as a football field covered one foot deep. That's 326,000 gallons.) This is billions of dollars worth of water. Although large claims can be made, negotiated settlements eventually reduce claims. Still a reduced Colorado River claim could be worth 100s of $millions, or a $billion or more. Nonetheless, your lawyers have never gone after a single drop of main stream Colorado River water.

This overall water rights issue amounts to a national emergency for the Navajo people. If the Nation cannot effectively begin to pursue all of its potential rights in the Colorado and elsewhere, it will not be able to pursue its long-term goals. And, as this letter's introductory quote suggests, the Nation ultimately will not be able to maintain itself. Vast amounts of water and settlement funds have already been lost through inaction by certain lawyers. The non-Indian interests in the Basin states have taken continuous advantage of this. Experts say the Nation is a water rights "sleeping giant."

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Current Specifics

Somewhat ironically, the fact that I am a bilagaana has initial usefulness under the circumstances. This is because I am going to be making some serious allegations about a couple of bilagaana lawyers who work for the Nation. (Please note that there are a number of excellent and loyal non-Navajo lawyers who work for the Nation. Depending on the issue, my concerns are limited to just a few.)

I know several Navajo patriots who have wanted to say the things I'll be saying. But they have not because they feared the bilagaana lawyers would do something like claim "racism" and divert attention away from the real issues. The real issues are not about racism (except perhaps against the Navajos). They involve questions of control and betrayal of the Navajo people. As an Anglo man, by speaking out in this way, I am sweeping aside the potential "racism" stumbling block that might have been raised by the lawyers. Following this breaking of the ice, the non-Navajo lawyers of concern cannot distract the Navajo people away from the real issues. Further, this is obviously the Navajo people's fight. Thus, after this letter, I am stepping out of the way.

In earlier days, the Army controlled the destiny of the Navajos. Next the BIA did. Then, in the late 1940s, bilagaana lawyers began controlling certain things. Their current successors have seemingly advanced this interference with Navajo government, and Navajo destiny, to a surprising level in critical areas. Now, several non-Navajo lawyers appear to be at the core of the crisis.

Many people do not realize how critical water is in the Southwest. But consider, for example, Arizona Governor Hull's declaration that "Water is Arizona's gold!" And, "Water is Arizona's most valuable resource." Why do we rarely hear this from Window Rock. One likely reason is that information the leaders receive about water rights has always been controlled by the lawyers.

The Colorado is the most valuable river in the Southwest. And, again, the Navajo Nation has been known, for decades, to be the River's largest potential rights claimant. Although the claim has a potential value of 100s of $millions and more, the key lawyers, past and present, have not gone after it. In fact, they have purposely avoided it.

The potential claim on the San Juan is also valued at many millions of dollars. This letter, however, focuses on the Colorado River. It is important to remember, too, that much opportunity has already been lost through inaction by the key lawyers. These lawyers will likely react to such statements by declaring that they have been very busy on water-related issues; on the Little Colorado, on the Navajo-Gallup project, on the western Navajo pipeline, on the Animas-La Plata project, on everything but the BIG one-the Colorado. It is just too conspicuously absent. And, the outside interests could not be more pleased that the lawyers preoccupy themselves with smaller issues. One Window Rock leader told me "Don't confuse their activity with achievement." Wise words. Also, please remember that a water rights claim is only good if it is aggressively pursued through negotiations, legal confirmation, and legislative settlement. This takes years.

Last winter, the two main lawyers of concern worked hard to prevent me from sharing with the Nation's leaders (through a planned seminar in Window Rock, with national experts as teachers) various things about the Nation's huge potential rights. One of the lawyers even telephones and "ordered" me to stop. And, incredibly, he barked out that the Nation "would have to have permission from the BIA" for such a seminar. This was a ridiculous lie, of course, but the lawyers still sabotaged the seminar. A third lawyer publicly gloated over this. Nevertheless, a small number of leaders still got the water rights information, and they recently confirmed it with nationally recognized experts.

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I predict that if the problem lawyers prevail regarding the Colorado, the Nation will eventually have to beg for water and development money that should have been the Nation's anyway. And, perhaps within 50 years, the Nation will find itself having to trade land and other things for water and development funds. The outside interests, that continue to get the rights to water and money that should have been yours, will control you. For example, I can envision these interests eventually saying "So, you want water and development money? Then give up some land and your sovereignty. After that you'll get some water and funding." Your future, your sovereignty, your self-determination, and your reservation are at stake.

One curious situation relating to the lawyers at issue is that several Council members seem to like and trust them. One reason is the Council has never been informed of the water rights crisis, and how the crisis could eventually spell disaster for the Nation, if not corrected. Another is the lawyers have been helpful on a number of issues. But this help, in some people's views, is a smoke screen that cannot make up for the hundreds of $millions in damage already caused by a "no effort" policy for the Colorado River. In these Council members' defense, however, they have very much been kept in the dark.

Newspapers are reporting that Navajos are fed up with the infighting going on in Window Rock. What many people don't realize, though, is that some of this conflict appears to be caused or increased by the lawyers at issue, and a couple of others. Governments that bicker are easier to control.

We all know that numerous Navajos are currently disappointed with the Council because there have been some developments that citizens find troubling. But, we also know the Council has many good people on it. The several I've had conversations with have seemed quite sincere about doing the best they can for the Nation. I think if advised and supported by the people on the water rights and lawyer issues, the Council could readily demonstrate how well it can address this looming crisis. And, although I have not mentioned the lawyers' names, I'm sure the leaders already suspect, or will soon figure out on their own, which few lawyers are the collectors of power and betrayers of the people.

Here is another troubling lawyer issue. The Water Code Administration discovered last winter that a big company on the Reservation had been using substantial amounts of surface water for 13 years without a required permit. Their water use fees are due for 1997-1999. The amount owed to the Nation is many thousands of dollars. The company, however, did not seem to realize it was out of compliance until we told them. At first the company began to comply with the Water Code. Very soon, though, one of the Nation's lawyers secretly collaborated with the company and encouraged it to insult our efforts, to deny Navajo Nation sovereignty over its own lands and waters, and to avoid paying the fees. It tried exactly that, but we have stood our ground. This incident of ethics violations and betrayal of the Nation added one more reason to suspect the lawyer of working for outside interests. His actions were reported to Window Rock but were not investigated. (Another suspect lawyer is a supervisor of the ethics violator.)

Where does all of this leave the Navajo Nation. The Nation does not now have a single drop of quantified water rights. The key lawyers, I'm told, have limited all of their water rights settlement activity to the smallest and driest river basin-the Little Colorado. They have even told Council members that they know what's right, that they should be trusted, and that the best way to go after Navajo rights is one river basin at a time, i.e., to "postpone" any Colorado River rights activity. Experts in Indian water rights completely disagree. For example, outside attorneys Monroe Price and Gary Weatherford have written that "Often, non-Indians simple postpone the resolution of Indian rights, hoping that they will disappear or that courts will not interfere with a developed pattern of resource reliance [by non-Indians.]" Thus, the lawyers at issue are completely wrong.

In the mean time, the Navajo people's water rights heritage in the Colorado River continues to be lost. The lawyers have recently told some Council members that if some day they do go after the Colorado, a reasonable claim would be 20 or 30 thousand acre feet. That is ridiculous. National experts say the Nation would be justified in at least trying for millions of acre feet.

The overall water rights strategy of the lawyers at issue has been incomprehensible to expert observers. The observers say the only explanations would seem to be "(1) the lawyers are completely ignorant of their dangerous water rights 'strategy,' (2) they are obsessed with the power they have been able to accumulate over the Navajo peope, or (3) one or more of them may be working for competing interests." This last one is not far-fetched. For example, only recently was it discovered that main attorney for Hopi from the 1950s-1970s was secretly working for Peabody Coal. His name was John Boyden. If such a thing could happened at Hopi, it could be happening at Navajo.

***There is a list of scheduled events related to Navajo water rights, however there is much information and I cannot write all of it. So I am continuing with the end of the letter.**

Some people feel that after this letter comes out, the lawyers of concern will quietly resign. I hope they don't. I hope they come out boldly. I hope their pictures and all other information about them ends up in the newspapers so the 200,000 Navajo citizens can finally see who these unknown persons are who (1) have been controlling Navajo destiny for years and (2) are threatening the Nation's continued existence. I also hope full investigations of all appropriate types are conducted. Finally, I hope the lawyers at issue are required to defend their so-called water rights "strategy" before a blue-ribbon committee of the best federal Indian law and Indian water rights experts in the United States.

It may be that suspicions about lawyers working for outside interests cannot be proved, whether it is the case or not. Even so, the lawyers' failure to act on such critical issues as massive potential water rights claims and the potential for hundreds of $millions is settlement money, are a matter of record.

Before closing, I have a few cautionary words. When the probable flurry of reactions from the lawyers at issue occurs, anyone who might defend them should likely be viewed with considerable suspicion and distrust. This is because such individuals may well have been badly fooled by the lawyers, or they may be purposely working with the lawyers to advance their own agendas. This is an unfortunate thing to have to say, but it very much appears to be warranted.

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What can be Done?
The Navajo people have the power to solve this problem because the Nation's sovereignty rests with them. It is obvious, as said earlier, that the leaders and the people have both been victims of a few non-Navajo lawyers. Again, there are some good people on the Council. Plus, President Kelsey A. Begaye and Speaker Edward T. Begay are decent, hardworking men who strive to do their best for the Nation and who strongly believe in the wisdom of the people. Therefore, if you are concerned about the Nation's survival; if you are concerned about your water rights and hundreds of millions of lost Navajo dollars; if you want to try to bring back improved relations in government; and (to borrow a phrase from President Lincoln) if you want a government that is of the Navajo people, by the Navajo people, and for the Navajo people, you can directly empower the leaders on these issues by advising and supporting them through direct communication. They they can more resolutely remove the lawyers' menacing the unallowable hold on the Navajo people's government.

Sending letters to the President's office address, given below, is perhaps most efficient. The letters can be easily collected there and then shared with the Speaker and Council members. I presume concerned citizens could also leave messages with the President's switchboard operator at 520-871-6352 or 6355 and the Council's operator at 520-871-6380 or 6381.
President Begaye
RE: Lawyers & Water Rights
P.O. Box 9000
Window Rock, AZ 86515

Finally, people will wonder about the motivation behind why I agreed to do this letter for the Dine' Sovereignty Defense Association. I am not an attorney, so I'm not out to replace any lawyer. My actual motivation is two-fold. First, I have a strong duty toward my former federal Indian law students (80% of whom were Navajos) to "walk the walk." Second, it is just a habit in our family to try to do the right thing. My dad, Colonel Leon Utter, started out as a private in the Marine Corps in 1942. He was toughened in World War II, just like the Code Talkers he fought alongside in the Pacific. Throughout my entire life, Dad has always told me to endeavor to do the right thing, and not back down. That's all that has happened here.

the wolf is my mesenger

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created by Louve14, December 27, 2000
updated 27 January 2003