On August 9, 2016, three New Mexico state legislators filed a brief in the New Mexico Court of Appeals, contending that the Navajo water settlement signed by Governor Bill Richardson is not valid unless the Legislature enacts the agreement into law.  The three legislators are Representative Paul Bandy (R-Aztec); Representative Carl Trujillo (D-Pojaque); and Senator Steve Neville (R-San Juan).  They argue that Governor Richardson had no constitutional authority by himself to sign an agreement with the Navajo Nation that would give the Tribe more than 600,000 acre-feet of water from the San Juan River.

According to the lawmakers, Governor Richardson’s action is unconstitutional under a 1995 decision by the New Mexico Supreme Court.  In State ex rel Clark v. Johnson, the Supreme Court struck down an compact which Governor Gary Johnson had signed with several tribes and pueblos to legalize casino gambling by the tribes.  The Supreme Court ruled that a governor does not have the power to bind the State to a compact with an Indian tribe unless the Legislature enacts the compact into law.  “Governor Richardson’s agreement with the Navajos is just like the compact Governor Johnson signed with the pueblos, except this compact deals with water, not gambling, “ said Senator Neville.

According to the legislators, the agreement is not binding until it is enacted by Congress, and the Navajo Tribal Council, and the New Mexico Legislature.  “The United States Congress and the Navajo Tribal Council have enacted the agreement into law, but the New Mexico Legislature has not.  No Governor has the authority to bind the State of New Mexico to a perpetual agreement like this without action by the Legislature itself, as the elected representatives of the people.”

The brief also points out that the Navajo settlement violates a statute passed by the 2005 Legislature, requiring that a tribal water settlement must settle all of the tribe’s water claims.   The Navajo agreement does not settle the Tribe’s water claims in the Little Colorado Basin or the Rio Grande Basin.  These claims could be substantial.

The three legislators are represented by Brad Cates, a former state legislator who represented Bernalillo County in the House of Representatives from 1975 to 1982.

To read a highlighted copy of the brief, CLICK HERE

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