http://news.yavapai-apache.org/wp-content/uploads/2020/01/Water-Letter-1.doc THE YAVAPAI-APACHE WATER SETTLEMENT
A PERSONAL PERSPECTIVE
BY: Vincent E. Randall
In the Apache creation story, after the earth is formed, water is put upon the land. In the Naa éii es ceremony, one of the first songs sung is about water. Since the creator, Bîikégo hinaan is a living entity, His entire creation is alive. Thus, water is alive. Springs, rivers, lakes and seeps should be respected with the same respect any living being is given. After the flood the first Apache was born for water. Even the Christian Bible refers to Living Water.
So we can all agree, in the beginning there was water. All Native American’s who live in the desert know that WATER IS LIFE and they respect it. The Verde River cuts our modern Reservation down the center at Middle Verde. Water flows through our lands and gives them life. The late Davis Sine’s mother, Mary told him in the 1930’s as a young man, “As long as the RIVER flows life will be good”. Mrs. Sine knew how important the River was, not just for the People, but for the plants and animals and for the future of the Yavapai-Apache Nation as well. Today it is different than the old days. Today in Arizona somebody owns the water. Like money it is tallied up, measured and accounted for. It is a commodity like oil, soybeans or coffee to be sold or traded then used up, not to be respected.
This is the modern Anglo-American/White way. Those are the rules of the game and we have to abide by that legal system. Because we are a federally recognized tribe with Reservation status we are entitled to a certain amount of “reserved water” by the federal government, enough to farm, enough for our homes and enough for the Nation’s business’s. This is an issue that should have been settled a generation ago, but it was not. It is something I have been dealing with on the Nations behalf for almost fifty years. I started when I was a young man and soon I will be 79 years old and still there is no water settlement. It is very frustrating to say the least. Are we getting closer? I am not sure. With the government shutdown we are currently dead in the water. Even without the shutdown, nothing official from Congress has happened yet and we are always tying up loose ends and encountering new obstacles. We remain hopeful and if things go right it could happen within in a few years if the tribal Council stays focused, our lawyers work effectively and we play our political cards right. That is why I am writing this article because we want our community to understand what is going on and how we got to this point. So I will start at the beginning with some basic concepts about water and water law.
My water education began in 1967 when I attended the BIA Water Conference in Washington D.C. Here are some helpful terms and concepts that I learned at that conference over fifty years ago.
- Water rights east of Mississippi River say you own the water that runs through your property or at least a portion of it.
- Water rights west of Mississippi River are different, the first to draw water out of the ground has the senior right to use it and after they use what they need, the next person on the ditch or river takes their share and so on down the line. This is called first in time equal first in right(s). You may ask yourself since as Native Americans, we were here first, why don’t we have the earliest rights? Because we lost that right when we were taken to San Carlos and the federal government reset the rules to suit their own needs for water excluding our ancestors, Yavapai and Apache People, who used this same water for centuries. This was yet another cost of the Federal Conquest of our aboriginal lands and although the first battles were for our lands, names and cultures, the war is not yet over. The last battle is being fought now over our water. Everybody else wants it, especially the water companies in Phoenix who serve millions of people, but who do not have enough water. They will always need more and they will not be happy until they get all of it. This is one of the reasons why getting a water settlement for our People is so difficult
- Aquifer: A rock unit that holds water like in a sponge or a bowl.
- Watershed: The total area that feeds water into an aquifer.
- For most of Arizona’s history the primary use of AZ water was agricultural, but now it is shifting to domestic and industrial. Remember all of the orange groves and cotton field you used to see around Phoenix are now covered with houses.
- Ground water depletion = more water is being taken out of an aquifer than is being replenished. All over the state the water is being pumped out faster than the rain and snow can cover the losses.
- McCarran Act: Indian water cases were transferred to state courts instead of being adjudicated in federal courts.
- State Court decrees in the SW are a threat to a fair federal Indian water settlement(s).
- An acre foot of water is one acre of land (about a football field in size) covered in water one foot deep, (which is 326,000 gallons or 2.7 million pounds of water).
- The Winters Doctrine; the legal concept that Indian Reservations are entitled to enough water to make them economically viable.
At that time (in the late 1960’s) YAN had no lawyers, no money and we were completely dependent on federal solicitors (lawyers). Most of whom did not even know who or where the Yavapai-Apache Reservation was. Some of you may remember in those days the Verde River was running at full capacity with lots of deep holes for swimming and actual current in the channel. Many tribal members like Victor Smith, caught catfish in the River.
Most of the federal water rights funding went to the BIG urban tribes down south, GRIC and Salt River. This was because those tribes were close to millions of people and those tribes simply became the water bank for Phoenix, except it held water instead of money. In the desert water is better than money.
Sometime around 1969, unbeknownst to us, the BIA Area Director, Wade Head, and the B.I.A. area solicitor entered into a water rights agreement with Salt River Project for a meager 525 acre feet of water per year. In those days the acre feet of water we were entitled to was dependent on how much agricultural land was being farmed on the Reservation. So in 1969 under pressure by a YAN tribal member who worked for the BIA and was under the thumb of Mr. Head, our tribal council foolishly signed the compact. In the meantime, courts were deciding water issues for Indian People around the west in numerous Winter’s Doctrine proceedings. One of these rulings affected reservations that were terminated at one time and re-established at a later date. Like our situation; the Rio Verde Reserve was terminated by an Executive order signed by President Grant in 1875 after our people were removed to San Carlos and was then reestablished in 1911 when Congress appropriated funds for and repurchased a parcel of our ancestral lands in the Verde Valley reasserting our rightful (although now much smaller) Reservation as well as establishing a legal path to obtaining our Reserved Federal Water Right.
An important concept in federal water law is a Federal Reserve Water Rights Priority Date: This establishes the Nations place in the pecking order of water rights on the Verde River, the earlier the date the better the water right. We believe our legal priority date is 1872 when the Rio Verde Reserve was established. Barring that 1911 could also be seen as the legal date. The earlier the priority date the more water, we are guaranteed by the feds. It means YAN actually gets wet water, not paper water. This is a distinction we make in water negotiations; wet water vs. paper water. Real water comes out of the tap; you can make coffee with it, take showers and water your garden. Paper water is like many promises made by the feds, it only exists on paper and you have to sue in court to get it or fight with others over whose it really is and in the end it never comes out of the tap. It stays on the paper. YAN wants real wet water with an early priority date, we do not want or need the paper kind of water. This is why we want a legislative act of congress for our water settlement
Court opinion in Winter’s Doctrine: if a reservation is re-established from the public domain at a later date (meaning federal land) the Federal Reserve Water Rights date reverts to when the Rio Verde Reservation was initially established by Executive Order, which would be 1872. If not, then in our case an acceptable priority date would be 1911 when our lands were reacquired by Congressional funding, with the legal understanding that some of these lands were never taken out of the public domain.
Around 1974: Joe Sparks is hired as our water rights attorney. Soon after West Anderson (WMAT), Bob Key (SCAT), Vincent E. Randall (YAN) and Vera Brown Starr (YAN) meet with Bill Veeder, Director of the Department of Interior Indian Water Rights Division, who had thankfully kept the highly inadequate and questionable Salt River Project Water Agreement with YAN under his hat. Because of his help, the agreement was never signed into law and was in fact nullified. That began the long process of round two to get a better deal.
CAP = the Central Arizona Project. Soon after this Joe Sparks working on YAN’s behalf got a 1500 acre feet per year allotment of CAP water, which has never been deliverable from the canal that was constructed. He also advised us not to sell it as it could be used in a trade down the road. Some tribes sold their shares to cities like Scottsdale. Our CAP water is an example of paper water. It belongs to the Nation, but we cannot use it because there is no way it can be delivered to us. However it is still an asset as a bargaining chip.
Our YAN water rights settlement lingered on, barely alive, with no action through the 1980s and 1990s, simply because the major stakeholder in Arizona water rights, Salt River Project (SRP), would not come to the table and talk with us. Also, Congress made more rules and a new government component had to be at the table with us, which was called a Federal Water Rights Team. In the meantime, Joe Sparks was constantly putting out brush fires on our behalf in Arizona state court that were constantly attempting to diminish our rights to wet water. As the year 2000 rolled in, a number of issues developed.
- In 2002 A court case determined water rights and acre feet numbers were not simply dependent on agricultural production in Indian Country, but now would consider domestic, cultural, commercial and industrial uses of water as legitimate.
- 2005—SRP begins sending out feelers to YAN due to threat of Prescott over pumping the Chino Valley aquifer, known as the Big Chino. Prescott pumping the aquifer would significantly reduce the flow of the Verde River in the short term and eventually turn the River into a seasonal creek within the next twenty years.
- 2006-YAN and SRP meet in Scottsdale to begin water settlement negotiations, talks on a “fair and equitable” amount of acre feet in wet water for the Nation.
- 2009 Joe Sparks, our water attorney of many years, contract was terminated by the Tribal Council. The Montgomery & Interpreter Law firm was hired in his place and they continue as our Outside Legal Counsel (OLC) today.
- We walked away from official talks with SRP in October of 2012 as they were attempting to, for a second time, cram a bad deal with a lot of paper water down our throats. Our negotiating team including the Nation’s decided at the time it was better to have no deal than a bad deal. We are through with getting bad deals. Since then we have been operating behind the scenes with our local communities, the federal water team, the Governor’s office and members of Congress to move our settlement forward until we can get an agreement and federal legislation passed that is fair and adequate to the needs of the Nation.
- 2014-2015 Vincent Randall testifies for over four hours in the Navigable Stream Act Case in State court regarding the Verde River on the Nations behalf. A case M&I with Vincent’s help won for our water settlement case. We were concerned that this Act would allow the state to take full control of the flood plain and the river channel acres from our Reservation as well as lose our rights on the River to commercial interests. The decision is currently being appealed.
We will continue this series on our ongoing water settlement in future issues.
Part II. In transit. 01/13/2020
See Part @ below ‘Editor’s Note’ for continuation of Part !!.
*Editor’s note: Vincent Randall is Apache elder, a former chairman of the Yavapai-Apache Nation, a former council member and is a traditional historian for the Dilzhe’e people. He knows the stories of his people, all of the relations in the families and extensive knowledge of the Apache language. Mr. Randall and others began the construction of the Dilzhe’e Apache language dictionary and plans are now in progress to print the complete dictionary of the Dilzhe’e people. The dictionary study was completed in 2018 which had begun in the late 1990s with the late Rebecca Smith.