In ruling the waters of Arizona, the Hopi tribe see limits to their future -

In ruling the waters of Arizona, the Hopi tribe see limits to their future

This story was originally published by ProPublica, a nonprofit newsroom that investigates abuse of power.

In September 2020, the Hopi tribe’s four-decade effort to secure its right to water culminated in court action. The outcome would determine how much water the arid reservation would receive over the next century and whether that amount would be sufficient for the tribe to pursue its economic ambitions. Under rules unique to Arizona, the tribe has to justify how they use each drop they want.

The months-long ordeal unfolded in the Arizona Supreme Court on video calls due to shaky internet connections.

President Timothy Nuvangyaoma called it “the fight of our lives”.

The US Supreme Court ruled in 1908 that reservations have an inherent right to water. In the rest of the country, courts award water to tribes based on the amount of arable land on their reservations, building on a 1963 U.S. Supreme Court precedent. But in 2001 Arizona developed its own method that ostensibly looserly tailored individual tribes’ insights into how they wanted to use their water by examining their culture, history, economy, and projected population.

This new standard provided the tribes with an opportunity to shape their plans for economic development and growth beyond agriculture. But the Hubei case, the first to be adjudicated under this process, also showed that it came at a high cost with an uncertain outcome.

Court records show that at trial, experts brought in by tribe, state, and corporate water users argued how many Hopi had lived in the area centuries ago and how much water they used for crops and livestock. They discussed the correct fertility rate for Hopi women and the feasibility of the tribe’s economic projects. And the court examined lists of sacred springs—sites traditionally kept secret by the Hobbits for safekeeping—to decide how much water could be drawn from them for future religious ceremonies.

The legal battle, one of the tribe’s biggest expenses in recent years, resulted in May 2022 with the court awarding less than a third of the water the Hopi demanded. The court said this was the amount needed to “provide a permanent home”.

“I would define it as modern-day genocide,” said Novangiauma. “Withholding water, which is the life of the hobbits, until an indefinite time is really a place to kill a tribe that has been here since time immemorial.”

The trial and decision have profound ramifications for other Colorado River basin tribes seeking access to the water, especially in Arizona, where 10 of the 22 federally recognized tribes have pending claims. The water given to these tribes often came from allotments that states could use, leading to inherent conflict between tribes and states over scarce resources. If the Hopi ordinance survives the tribe’s planned appeal, said Rhett Larson, a professor of water law at Arizona State University, other tribes will be subject to the same close scrutiny of their way of life.

“It’s a big deal of the history of water law in the United States of America and what it means to be a Native American tribe,” said Larson.

“to save our existence”

The Hopi tribe has inhabited villages in northeastern Arizona for over 1,100 years. In the time since the arrival of the white settlers, the Hopi’s water supply had been destroyed by drought and the uncontrolled pumping of groundwater by coal companies.

The reservation, established by the United States government in 1882, is completely surrounded by the Navajo Nation. Both tribes use the same aquifer, with wells reaching thousands of feet deep into the ground. Three-quarters of the Hopi citizens living on the reservation depend on well water contaminated with high levels of arsenic, according to tribal leaders and studies conducted with the Environmental Protection Agency. Arsenic is a heavy metal that increases the risk of cancer, cognitive developmental disorders, and diabetes. It is naturally present throughout Arizona, but pumping can increase its concentration in groundwater.

According to Dale Sinquah, a member of the Hopi Tribal Council, concerns about the aquifer make it difficult not only to find drinking water, but they also limit the construction of new homes and businesses that allow the community to grow.

The only other water available on the reserve is inconsistent, running in four main streams that are dry most of the year. These four washes, which drain into the Little Colorado River, were likely affected by drought, with two showing a “significant downward trend” in recent years, according to the US Geological Survey.

“We need another source of water outside the reserve to sustain our existence in the future,” Al-Senkoh said.

The case over water rights in Hubei began in 1978, when the Phelps Dodge mining company sued the state and all other water users to protect its claims to the Little Colorado River watershed. Under Arizona law, the only way to determine an individual water claim was to litigate all of the territorial claims at once. The Hopi tribe and thousands of other people with claims soon became parties to the case in the Arizona Supreme Court.

The tribe has twice suspended the case in court because it tried to obtain water through out-of-court settlements. Although, those talks would have required settlement with other users claiming such water, including the Peabody Western Coal Co., which until 2019 had been pumping groundwater from the aquifer for its mining operations. Between 1965 and 2005, Peabody accounted for 63 percent of the water pumped from the aquifer, and 31 percent between 2006 and 2019, according to the US Geological Survey. Peabody did not respond to requests for comment.

In 2012, the Hopi tribe appeared on the brink of a settlement with the state that would have provided the tribal nation with $113 million for pipelines and other infrastructure to bring groundwater to protected communities. But this effort failed when the Hopi leaders refused to sign a guarantee on the settlement allowing Peabody to continue accessing the aquifer until 2044.

We don’t think this is possible for you.

Unable to reach a settlement, the Hopi tribe continued their quest for water for their homeland in court through the untested legal process in Arizona.

Due to the large number of parties and a lack of funding from both state courts and the Arizona Department of Water Resources, the case moved at a slow pace. The department submitted a major technical report on water availability in 2008. It took until 2015 for the department to finish preparing it for the court.

By then, the case was overseen by four judges. They have appointed three separate private masters of water, who play a major role in issuing a proposed court ordinance. Susan Ward Harris, the water lady who issued the 2022 ordinance, was appointed in 2015. Harris did not respond to requests for comment.

When her day in court finally came, the Hopi made it clear that they wanted water for an economically vibrant future with farms, ranching operations, coal mines, and power plants.

More than 90 witnesses testified. Among them was a long line of experts – of the tribe; the federal government; the state; the northern city of Flagstaff, Arizona; and the Little Colorado River Alliance, which represents small towns, public utilities, ranchers, and business interests. They discussed the projected population of the tribe, argued about the accuracy of the Hopi census counts and made predictions of what the numbers would be like in the future.

In the end, the court went with the lowest population projections offered by Flagstaff and the state, deciding to only include people who lived on the reservation full-time.

Harris determined that the reservation’s population, currently around 7,000, would peak at 18,255 by 2110.

It also decreed that the tribe would have access to water to irrigate only 38 percent of the farmland it had planned. The water for the livestock operation was denied, saying that it “would not be feasible, practical, or provide economic benefits,” based on the court’s assessment of the current market. Harris also declared that coal operations were not “economically viable”. Economic development projects of around $10 billion, detailed in court, were deemed unrealistic.

Water for ceremonial and living gardens was also forbidden. The court publicly listed nearly 100 sacred springs with restrictions on the amount of water a tribe could use in religious ceremonies.

In total, the tribe required no less than 96,074 acres of water per year, and an Arizona water expert recommended a grant of only 28,988 acres, all from the same polluted and depleted aquifer and seasonal streams that the Hopi are already using. Four decades later, they’ve ended up in the same precarious situation they started with.

Novangiauma said the decree indicates that the state and non-native parties believe the tribe is unable to implement its ambitious economic plans. It closed the door on future growth and, in general, was an “insult”.

By refusing to count the members who live part-time on the reservation as part of the population, the court ignored the relationship many Native Americans had with their land, even when they did not live there permanently, he said. Many leave so that they or their children can pursue an education; To work or live in homes with reliable electricity and water. In short, Novangiauma said, they seek the very things that the Hopi leaders hoped the settlement would help bring to the reservation, and that the tribe needed water to do. But the court said that because the reservation was not growing as fast as the tribe claimed it could, it could not have had water—a circular logic holding back the Hopi.

“It’s very frustrating to be told your population is going to peak at a certain level when we don’t see it that way,” Nuvangyaoma said.

Even with Harris’ decision on the books, the Hopi still faced a long way to go to access their allotted 28,988 acres of water. Funding for dams, pipes, and other infrastructure would likely require congressional action and would involve further negotiations with other water users, including the Navajo Nation, which draws from the same groundwater. “I guess I won’t be alive when it comes to fruition,” said Sankwah, a member of the Tribal Council.

Nuvangiaoma said the tribe will continue to pursue its plans for economic development, but with the understanding that it cannot look to state or federal governments for support.

Cities throughout the Southwest, with government support, he said, sought economic development and growth in the ways they wanted, whether it was coal mining, cattle ranching, or desert farming using water brought in from far away.

“Then why do we put restrictions on a hobbyist and make a decision for us by saying, ‘Oh, well, don’t we think this is possible for all of you? “Who has that right to tell us what is possible and what is not possible for us?”