Unlimited Limitations: The Navajos' Winters Rights Deemed Worthless in the 2012 Navajo–Hopi Little Colorado River Settlement

Water rights are to the late twentieth century what land rights were to the late nineteenth century.

Anonymous

Quantification Means Minimization

In recent weeks, the Navajo Nation government (hereafter referred to as "the Nation") has been on the march supporting the controversial Navajo-Hopi Little Colorado River Settlement (hereafter referred to as "the Settlement") and its companion, Senate Bill 2109. A press release by Navajo President Ben Shelly dated April 17, 2012, stated, "Under the settlement the Navajo Nation has the right to use all of the water arising on, running through, or under the Navajo Reservation, without limits except with respect to water sources shared with the Hopi Tribe. . . . The Nations' water rights . . . are not being 'quantified' in a sense that a specific limit is being put on their use."¹

The Assistant Attorney General for the Navajo Nation, Stanley Pollack, similarly declared in an April 26 interview with the Navajo Times that "this settlement doesn't have limits for the Navajo Nation, that's what makes it so unique. In fact, other parties to the agreement are limited."²

What both of these statements obscure is that the water to which the Navajo Nation can lay claim—and use—under the terms of the Settlement is, in fact, quantified. Not only does Section 4.5.2 of the Settlement limit the Little Colorado River (LCR) surface water that can be made usable through diversion, but Sections 4.4.1 and 4.4.2 also limit the Nation's use of water that has not already been appropriated for non-Indian use as of the Settlement's effective date.

The notion of unlimited water promoted by the Nation is based on an antiquated and skewed interpretation of the Winters Doctrine of water rights (hereafter referred to as "Winters rights"). Established in a 1908 U.S. Supreme Court case, Winters v. United States, the Winters Doctrine holds that Indian tribes have prior and paramount rights to all water that originates on, borders, or crosses a reservation.³ Such rights are effective on the date of a reservation's creation by federal authority and are considered unquantifiable in light of the Court's determination that the amount of water to be reserved for Indian tribes is "uncircumscribed," so as to allow for the beneficial and perpetual development of a permanent homeland.⁴

Winters rights have been applied and clarified in a number of federal and state Supreme Court cases intended to settle disputes over water entitled to federal reservations, of which Indian reservations are a unique type because of the legally binding nature of the U.S. trust responsibility to treaty-formed Indian tribes and lands. The Arizona Supreme Court has been charged with adjudicating most of these cases in direct relation to the state's total Lower Colorado River (Lower CR) entitlement of just over 2.8 million acre feet per year (AFY). With minor exceptions, these subsequent cases have revised Winters rights in a way that protects existing municipal, irrigation, and industry usage of Arizona's water entitlements for the express purpose of further economic growth in the region.

The Arizona Supreme Court's most recent decision in the Gila River Adjudication (Gila V), for example, concluded that because Winters rights reserve only the amount of water necessary to fulfill the purpose of a federally created reservation, such rights must be determined according to a "minimal need" requirement.⁵

Although neither the defendants nor the plaintiffs in the two cases the Court cited in its minimal need decision—United States v. New Mexico (1978) and Cappaert v. United States (1976)—were federally recognized tribes, the 2001 Gila V decision nevertheless used these cases to set a precedent for future water contests to which Indian tribes might be party. Why? The Court's explicit purpose was to effectively position non-Indian rights previously established in other settlements or litigations as equal to tribal Winters rights, even if these are chronologically subordinate to such rights. As Chief Justice Thomas A. Zlaket stated in his majority opinion, "We...