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Navajo water a wild card in river’s future; Old rights » 1908 decision gave tribe part of the river

Posted by: Aqua Blog Maven on November 29, 2008 at 7:04 am

From the Salt Lake Tribune:

The commission that created the 1922 Colorado River Compact knew that Mexico, the Navajo and other tribes had rights to the river, but when it divvied up the presumed 15 million acre-feet annual flow, it didn’t define the claims. In 1944, the United States and Mexico agreed that Mexico would get 1.5 million acre-feet per year, resetting the assumed baseline river flow at 16.5 million acre-feet. Four years later, the commission set the Upper Basin states’ shares on a percentage basis rather than an absolute allocation.

Still no mention of Indian tribes, even though an 1850 treaty with the Navajo Nation, reinforced by a 1908 Supreme Court ruling, guaranteed water rights necessary for a permanent homeland.

In 2003, the Navajo Nation sued the Interior Department, seeking to force the U.S. government to, at last, quantify the tribe’s rights.

Some Navajos say a strict interpretation of the treaty and the 1908 ruling in Winters v. United States shows the tribe’s rights trump all others because they were affirmed before the 1922 Colorado Compact. Navajo leaders, however, are pursuing negotiations rather than going back to the Supreme Court. That’s because they realize the justices could wipe out the earlier Winters ruling.

The approach has polarized Navajos, with some alleging the tribe’s attorney, Stanley Pollack, a white man, isn’t fighting hard enough.