Navajo water rights: the government is out of excuses

In Arizona v. Navajo Nation, the Supreme Court ruled that the U.S. government does not have an obligation to verify or guarantee water rights (not the right to water, which are often confused with each other) to the Navajo Nation. This is hypocritical as previous treaties have stated that the Navajo Nation has a right to the land and water that they were given to stay on their reservation. 

The case was whether or not the Navajo Nation can have their rights to water explicitly defined, and if action would be taken to assist in their water crisis centered around the water rights of the Navajo Nation over the Colorado River. Because rivers often cross state or national borders, there are laws put in place to divide ownership of the rights to the water. These water rights, which Washington Post reporter Joshua Partlow defines as determining “who has permission to take water out. [Water rights] are based on seniority and governed through a complicated network of laws, court decisions, contracts, and regulations known as the Law of the River.” Many states have the Colorado River flow through them and rely on the river, making it a tricky situation. 

The Navajo Nation says that the trust responsibility includes an obligation for the U.S. government to identify and ensure and enable access to water rights to the tribe. According to the Administration for Children and Families, “The ‘trust responsibility’…created a special relationship between tribes and the federal government that obligates the government to keep its end of the bargain given that tribes have kept theirs…The trust doctrine is a source of federal responsibility to Indians requiring the federal government to support tribal self-government and economic prosperity, duties that stem from the government’s treaty guarantees to protect Indian tribes and respect their sovereignty.” 

The Navajo Nation says because the United States government has the trust responsibility to keep them in the area reserved for them, the government also has to make the reservation livable and actively help the indigenous community there. Heather Tanana, a law professor at the University of Utah and citizen of Navajo Nation, says “the tribe’s claim stems from federal policies that forcibly relocated tribes and their citizens westward and onto reservations, including the Navajo Treaty of 1868…When they established these reservations, that came with the promise that those lands would be permanent homelands for the tribe and their people…And I think everyone would agree you can’t have a homeland of any kind without water.” The opposing side– the state of Arizona– argued that when the U.S. government relocated the Navajo Nation, it only gave them the right to the land and property, and not the water rights or owe of upkeep for the tribe. 

Ultimately the Supreme Court ruled, five to four, against the Navajo Nation and their fight for water in Arizona v. Navajo Nation on June 22. The majority came to the decision that the U.S. government does not have an affirmative treaty, nor a trust obligation, to identify and account for Navajo Nation water rights in the Colorado River.

This ruling seems hypocritical when we consider previous treaties between the U.S. government and Navajo Nation, treaties stating that Native Americans should have the right to clean water and the water sources in the respected land as long as they agree to stay on the land and end fighting between the two. After centuries of this treatise system standing, the Supreme Court has now said that one of the only resources Native Americans had, they are not legally entitled to.

The decision sounds completely idiotic when you acknowledge how large the Indigenous communities that live on these reservations are. The Navajo Nation, for example, “is the largest Native American reservation in the U.S., it covers 27,000 square miles in the Southwest – an area larger than 10 states, it is home to more than 250,000 people.” Not to mention that 30 percent of those households on the Navajo Reservation lack running water, according to Robert Glennon. He also noted the inequity of water access in the Navajo Nation, because, “along with how much money, time, and energy it can take to have to travel miles to refill barrels of water for many household tasks like cooking, cleaning, bathing, etc…The average American uses between 80 and 100 gallons (300-375 liters) of water per day, [where] Navajo Nation members use approximately seven.” Robert Glennon from The Conversation states. 

In the opinion of the court, Justice Kavanaugh stated how essential water is to human life and even more specifically the lives and culture of indigenous tribes– and then continues to state how the U.S. government does not have an obligation to assist Native American tribes in securing their right to water. This sets an unsettling precedent that the U.S. government shouldn’t be owning up to the mistakes of their past.

One reason the Supreme Court gave for their controversial ruling was that many places in the western U.S. struggle to have access to clean water, and it would be unfair to give the Navajo Nation assistance that the U.S. government is “under no responsibility” to help when there are so many other places with little to no water. Tanana adds that the lack or overall amount of water “doesn’t mean that the Navajo Nation does not have valid rights that should be enforced…they should have the ability to develop their water and then play on the same level with every other stakeholder in the basin.”

“Much of the western United States is arid,” Tanana continues. “Water has long been scarce, and the problem is getting worse…And the situation is expected to grow more severe in future years. So even though the Navajo Reservation encompasses numerous water sources and the Tribe has the right to use needed water from those sources, the Navajos face the same water scarcity problem that many in the western United States face.” So while the Court agreed, under the Winters Doctrine, that tribal nations indeed have water rights, the Court nevertheless concluded there was no obligation to take steps to secure or even identify the water needed for the reservation. “The U.S. government excluded Navajo tribal citizens from receiving a share of water when the original apportioning occurred and today’s Supreme Court decision for Arizona v. Navajo Nation condoned this lack of accountability,” Native American Rights Fund Executive Director John Echohawk said. Even though the U.S. Government is not doing anything to help water scarcity within the Navajo Nation, or any of the western U.S.’ drought issues, the nation will do their best with their limited resources. “Despite today’s ruling,” Echohawk said, “Tribal Nations will continue to assert their water rights and NARF remains committed to that fight.”