SCOTUS Ruling on Navajo Water Rights—Where Does This Leave the Tribe?
This week, VOA looks at the U.S. Supreme Court’s June 22 ruling in Arizona v. Navajo Nation, a case that examined whether the U.S. government has a treaty obligation to help Navajo access Colorado River water.
The conflict
The Colorado River system supplies nearly 40 million people with drinking water and irrigates more than 5 million acres of farmland in the Rocky Mountains and Southwest United States.
But climate change has contributed to decades of drought, and water levels in the Colorado River have dropped alarmingly.
FILE - In this May 31, 2018 photo, the low level of the water line is shown on the banks of the Colorado River in Hoover Dam, Ariz.
For the Navajo Nation, the crisis is acute. A third of the 175,000 Navajo living on the reservation lack access to clean water and must have it delivered by truck or drive miles to haul it themselves. The Navajos want access to the lower Colorado River flowing just outside the reservation’s northwestern border.
“The bottom line is that the treaties and their promises mean what the Navajos reasonably understood them to mean,” their lawyers argued before the Supreme Court. “When it signed the 1868 Treaty, the United States knew that water access was crucial to the survival of Indians living in the Colorado River Basin.”
States in the region, however, argued otherwise, worrying that ruling in favor of the Navajo would further strain “a river system already stretched beyond its capacity,” and threaten an agricultural industry that supplies much of the nation.
Navajos under guard at Fort Sumner, built by the U.S. Army to watch over the Navajo camp at Bosque Redondo, ca. 1864.
History
In late 1863, the U.S. Army began capturing groups of Navajo from their traditional homelands in the Four Corners region of Arizona, New Mexico, Utah and Colorado and forcing them along the more than 300-mile “Long Walk” to the Bosque Redondo reservation along the Pecos River in New Mexico. Several hundred died or were killed along the way; 8,000 survived the march.
The Army intended to make self-sufficient farmers out of the prisoners. But the land was unsuitable for farming, the water was unfit to drink and firewood was scarce. Two thousand or more died of exposure, starvation or contagious disease.
But it was the “great expense” of feeding and clothing survivors that drove the government to draw up a treaty and return them to a small portion of their original homelands.
Congressional Globe record of a February 7, 1868, debate in which Senator John B. Henderson argued for returning the Navajo to their homelands.
The government promised to build schools and a church, where timber and water were convenient; supply seeds and farming tools; and provide money to buy sheep, goats and cows. The treaty made no other mention of water, but as contemporary observers have noted, Navajos at the time would have assumed the government would make sure they had enough water to sustain themselves.
In last week’s decision, Justice Brett Kavanaugh cited a 1908 SCOTUS ruling establishing tribes’ rights to waters that “arise, border, cross, underlie or are encompassed within reservations.”
Former President Donald Trump greets Supreme Court Justices Brett Kavanaugh (second right) and Neil Gorsuch (third right), two of the three justices he appointed during his term, Feb. 5, 2019.
He ruled that the court has no legal obligation to take steps to identify or secure the reservation’s water needs.
“The historical record does not suggest that the United States agreed to undertake affirmative efforts to secure water for the Navajos -- any more than … [it] agreed to farm land, mine minerals, harvest timber, build roads or construct bridges on the reservation,” Kavanaugh wrote.
That said, he pointed out that Congress and the president are empowered to enact laws that might help the Navajo with their water needs.
In a dissenting opinion, Justice Neil Gorsuch said that the Navajo “ask” was simple: “They want the United States to identify the water rights it holds for them,” he wrote. “And if the United States has misappropriated the Navajo’s water rights, the Tribe asks it to formulate a plan to stop doing so prospectively.”
Mixed reactions
ProPublica quotes the Arizona Department of Water Resources as being “grateful” for the ruling “because it did not disrupt how the Colorado River system is managed.”
But tribes in the region condemned the judgement.
“The Supreme Court got it wrong with their decision last week,” Native News Online editor Levi Rickert wrote in an editorial Monday. “Given history, I should have seen it coming.”
In the same edition, longtime Navajo activist and spiritual adviser Lenny Foster called the ruling “an abomination and a supreme insult and long-term mistake.”
Navajo Nation President Buu Nygren, voted into office in November 2022 on promises to secure the “basic necessities for every Navajo home,” said the fight for water rights isn’t over.
Looking forward, the Navajo have the options of continuing long-standing -- and, so far unsuccessful -- negotiations with the state of Arizona, or, as Justice Gorsuch suggested, of intervening in other court cases that “affect their claimed interests” in water rights.