By Jack Utter **
**[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.
Foreward
Brief Summary
Problem Overview
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."
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.
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. What can be Done?
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.
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
For access to other pages at this site, please use the dropdown menu below.
"We will be known by the tracks
we leave behind."
Dakota Proverb
created by Louve14, December 27, 2000
updated 27 January 2003