HOPI RESERVATION - The big question surrounding Senate Bill 2109 is, who has the final right to negotiate these reserved water rights on behalf of the Hopi and Tewa people? The bill, sponsored by Senators Jon Kyl (R) and John McCain (R), would permanently waive all Hopi water rights, Hopi allottees' water rights, limit Hopis' use of water quantity, prevent Hopis from filing future damage claims including water injury and remove liability of the federal government for failure to appropriate funding for the proposed Hopi groundwater proposal in exchange for a $113 million reservation-wide Hopi groundwater community project that would pipe water to all Hopi communities except Hotevilla and Kykotsmovi, according to the 176 page document.
In the first of a series of open public water education meetings, First Mesa Consolidated Villages Community Service Administrator (CSA) Ivan Sidney, former Hopi Tribal Chairman, hosted a public meeting. Former Hopi Chairmen Vernon Masayesva and Benjamin Nuvamsa and former Hopi Chief Judge Gary LaRance joined Sidney. The four gave information in two PowerPoint presentations and jointly maintained the Hopi and Tewa villages are the only true, rightful owners of all Hopi water rights.
Masayesva, Nuvamsa and Sidney are also sponsoring a formal tribal resolution and action item to be presented before Hopi Council that along with their own endorsements also contains the signatures of former Hopi Vice Chairmen Clifford Qotsaquahu, Todd Honyaoma, Phillip Quochytewa and Caleb Johnson, who charge that Hopi Chairman Leroy Shingoitewa and George Mase, Chairman of the Hopi Water and Energy Team, and the Hopi Council have no tribal authority or legal standing to engage in any type of pre-negotiations.
LaRance presented legal evidence to support the argument that the Hopi and Tewa villages are the only rightful owners of all water rights on Hopi starting with the formal establishment of the Hopi Reservation by President Chester Arthur in 1882.
At that time there was no Hopi central government, no Hopi chairman and no Hopi Council. Until 1936 when a formal Hopi Constitution was established, it was the Hopi people in these 12 villages who comprised the Hopi Tribe in 12 self-governing villages, each of which retained its own aboriginal sovereignty.
The Hopi Appellate Court further supported this ultimate aboriginal authority owned by the 12 villages in a decision in 2010. The 2010 Hopi Appellate court decision answered that the villages held that ultimate authority, not the Hopi Council, because of this "inherent aboriginal sovereignty" established by the Hopi Constitution.
The Hopi Appellate Court determined that each village was recognized as an autonomous, sovereign city-state, and that the Hopi Constitution demonstrates the limited authority of the central government of the modern day Hopi Tribe rests on the bedrock of the ultimate aboriginal sovereignty of the original 12 Hopi and Tewa villages.
This "limited authority," according to LaRance, given to the Hopi central government, derives exclusively from power delegated to it by the Hopi and Tewa villages, and that Hopi and Tewa villages, "retain all aspects of their inherent aboriginal sovereignty not exclusively delegated by the Hopi Constitution to the central government of the Hopi Tribe."
LaRance also cited the case of Winters v. United States 207 U.S. 564 (1908) in which the U.S. Supreme Court said that when the U.S. government "creates a reservation by treaty," the government creates that reservation with the intention to allow the Native Americans on that reservation to become self-reliant and self-sufficient. The Native Americans require water for self-sufficiency. Therefore, that reservation creation "reserves" for the tribe as much water to sustain the tribes' use of the reservation. This is called "reserved water rights."
Since the Hopi Reservation was formally created by President Arthur in 1882 by executive order, these "reserved Hopi water rights" would also be attached at that time and would be owned by the Hopi and Tewa villages because the Hopi central government was not created until 1936.
"The water rights in the Little Colorado River whether they be Hopi ancestral aboriginal rights given to Hopi by the Hopi gods, or whether they be given by the U.S. government under the Winters Doctrine, these rights belong to the Hopi and Tewa people, not the Hopi chairman, not the Hopi Council and not the four villages that currently serve on the Hopi Council right now," said LaRance.
Both LaRance and Masayesva hit hard on the topic of what Hopis would give up in exchange for the $113 million reservation-wide water project, which would be, the "waiver of all past, present and future claims arising from time immemorial, and thereafter forever" that are based on aboriginal occupancy of land by the Hopi Tribe, the members of the Hopi Tribe or their predecessors.
Nuvamsa's PowerPoint presentation echoed Masayesva, LaRance and Sidney's concerns. He stated that if SB 2109 passes with Hopi Chair Shingoitewa's and Hopi Council endorsement, the waiver of Hopi water rights would heavily favor non-Indian interests, provide all water rights to Navajo Generating Station, ensure continuation of Peabody Coal mining, would infringe upon Hopi villages inherent aboriginal rights, and would further question Hopis' rights to the Colorado River water.
Arguments from all four presenters, also question current Hopi officials engaging in "Agreement in Principle" without prior consultation with tribal membership with all four of them stating that current Hopi chairman and the Hopi Council may have violated the Hopi Tribal Constitution as well as the Hopi villages' "inherent Aboriginal Sovereignty in particular, the individual rights of Hopi allottees by engaging in these discussions without prior knowledge and information to the Hopi public.
Additional public Hopi water education forums have been scheduled for public participation this month that will feature both PowerPoint presentations and a question-answer period.
A meeting begins at 5:30 p.m. (MST) today, March 28, at the Lower Moencopi Community Building.
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