Trial begins to determine Hopi Tribe's water rights to Little Colorado River

The Little Colorado River flows over Grand Falls in northern Arizona. (Stock photo)

The Little Colorado River flows over Grand Falls in northern Arizona. (Stock photo)

PHOENIX — The trial to adjudicate water rights in the Little Colorado River basin in Arizona commenced Sept. 11 in its first phase, which will determine the Hopi Tribe’s water rights for past and present uses of the Little Colorado River.

Additional phases of the trial will address the Hopi’s future rights and those of the Navajo Nation — past, present and future — and the rights of non-Native users along the Little Colorado River.

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This map, made using USGS shaded relief data shows the Little Colorado River basin in Arizona and New Mexico. (Creative Commons/Wikimedia)

The Little Colorado River stream adjudication began in 1978 to determine conflicting water rights in the basin. The stream adjudication involves the Hopi Tribe, Navajo Nation, the U.S., non-Indian communities (Flagstaff, Winslow, Show Low, Snowflake, Springerville, St. John and Holbrook), commercial and industrial interests (Salt River Project and Arizona Public Service) and numerous other individual and commercial interests.

The adjudication is designed to quantify each claimant’s water rights, both federal and state law rights and to determine claimants’ priority to the limited water in the Little Colorado River basin. This case does not involve claims to Colorado River water, which is outside the basin.

The Hopi Tribe’s water rights will be tried in several phases, the first to determine the Hopi Tribe’s past and present uses of the Little Colorado River basin. The second phase will begin in December 2019 and the court will hear testimony about the amount of water necessary for the Hopi Reservation to serve as a livable and permanent homeland for future generations. A third phase, which will be set for 2020 or later, will focus on the ranch lands south of the Hopi Reservation.

“Water sustains Hopi life,” a press release from the Hopi Tribe said. “There are many competing demands for water. The judicial proceeding will determine water rights for our children and grandchildren.”

The Hopi Tribe said during the trial, the long history and unique culture of the Hopi Tribe in Arizona will be presented by both witnesses and documents.

“Over a millennium, the Hopi Tribe has endured enormous hardships to sustain its way of life and developed a unique agriculture to sustain itself in a harsh and dry environment,” the Hopi Tribe said. “There is still a long road and many trials ahead before resolution of all claims. At each step of the way, the Hopi Tribe will continue to seek a just resolution of claims with its neighbors in the Little Colorado River basin.”

The Hopi Tribe, Navajo Nation and other users of the water have tried many times over the course of two decades to resolve water rights along the Little Colorado River through settlement, but have failed each time.

Both the Hopi Tribe and Navajo Nation have said they have made good faith efforts to come to the table to resolve the matter, but attempts have been unsuccessful.

The Hopi Tribe said that, historically, water rights for Native American tribes settle with the U.S. government providing water and water infrastructure to Native American tribes consistent with its trust obligations.

In 1985, the Navajo Nation, the Hopi Tribe, and the United States (on behalf of the two tribes), filed claims in the Little Colorado River adjudication after the United States Supreme Court determined that water rights held in trust by the United States were subject to state court jurisdiction and the Arizona Supreme Court held that the Arizona constitution did not bar such claims.

In 1995, the Arizona legislature expressed a policy of resolving federal reserved rights, including those of Indian tribes, before adjudicating other water rights within the state. In 2001, Judge Edward P. Ballinger determined the claims of the Hopi Tribe would proceed first in the Little Colorado River adjudication. The trial is being conducted by Special Water Master Susan Ward Harris in the Maricopa County Superior Court.

Most recently, the parties attempted a comprehensive settlement through Senate Bill 2109, but the settlement was ultimately rejected by the Navajo Nation Council and the Hopi Tribal Council in 2012 and the case returned to litigation in 2013.

In April of 2016, the Hopi Tribe and Navajo Nation made additional attempts to settle their shared resources along the Little Colorado River, but those discussions stalled.

“Water and infrastructure are essential to the Hopi Tribe’s future survival,” the Hopi Tribe said, pointing out that recent settlement efforts have been frustrated by the Navajo Nation’s unwillingness to recognize the Hopi Tribe’s need to access off-reservation water resources to create a sustainable and permanent homeland for the Hopi people.

“Due to actions by the U.S. government, the Hopi Tribe is surrounded by the Navajo Nation,” the Hopi Tribe said. “The Navajo Nation has stated in court that it will never grant Hopi an easement to bring water across the Navajo Nation Reservation to the Hopi Reservation and the state court, on a motion filed by the Navajo Nation, has ruled that the Hopi Tribe has no right to access off-reservation water resources for its people.”

The Hopi Tribe said it will appeal that ruling.

“As the Hopi Tribe enters another year of long sustained drought on it reservation, the Hopi Tribe will continue to seek review of this truly unjust court decision and will continue to seek a settlement that recognizes the tribe will need access to off-reservation water resources for its people,” the Hopi Tribe said.

Navajo Nation Speaker LoRenzo Bates said despite the Nation’s willingness to come to the table, they are at the point where litigation seems necessary.

“It takes commitment from all parties to come to the table,” Bates said. “Litigation usually results in a winner and a loser and we have to be mindful going forward over who would benefit from the results outside of the Hopi Tribe and the Navajo Nation.”

Navajo Nation President Russell Begaye, who was meeting with Interior Secretary Ryan Zinke and unable to attend the first day of trial, said western Navajo is in dire need of water.

“It’s time that all Arizona stakeholders recognize that the Navajo Nation is entitled to quality water for its people,” Begaye said.

The Nation’s contested case is scheduled to begin in 2022 and will address the Nation’s claims for past, present and future uses of the Little Colorado River basin for domestic, commercial, municipal and industrial purposes and for impoundments, stock and wildlife watering.

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