Water for First Americans?

A century old conflict finally sees the light of day at the U.S. Supreme Court

Photo by NASA on Unsplash

Can it be true that “Water for First Americans?” is even a phrase with a question mark? This spring the U.S. Supreme Court heard arguments on the century old conflict over badly needed water stolen from the Navajo Nation that has been wrongly diverted since before the ink was dry on the treaty granting those water rights. Today, more than 1/3 of the citizens of the Navajo Nation do not have running water.

It is no coincidence that the Navajo Nation experienced some of the highest rates of death from COVID-19 where one of the most important public health measures to prevent infection was to wash your hands often. Without running water, this just is not possible.

Much of the persistence of the problem of water for First Americans is the failure for the U.S. to honor its treaties. To put it into perspective, if the U.S. took title and ownership of your home and the 1/2 acre lot it was on through eminent domain and instead of “just compensation” that is paid according to the 5th Amendment of the Constitution for such takings, you were told your deal is that you will be allowed to occupy your house and land and get your electricity and water bill paid in perpetuity (or until you and your family die out), for giving up title to your entire property. (The U.S. “negotiator” also adds: If you don’t sign the deal we will slaughter you and all your family.)

Sound good so far?

Then later, the U.S. allows other people to tap into your water line right before it reaches your house and divert the water to their houses. When you complain that you are not getting enough water to sustain life in your house, it takes you a hundred years to get anyone to listen. (Justice Gorsuch analogizes this to waiting at the Dept. of Motor Vehicles only to find out you have been in the wrong line.) Once they finally hear your complaint, they say, too bad, we gave you the right to water in your treaty but we never promised we would make it available to you by enforcing those rights. That is what the U.S. Supreme Court opined in Arizona v. Navajo Nation in June 2023.¹

The U.S. Supreme Court acknowledged that water is included in the establishment of a reservation:

When the United States establishes a tribal reservation, the reservation generally includes (among other things) the land, the minerals below the land’s surface, the timber on the land, and the right to use needed water on the reservation, referred to as reserved water rights.²

Because of these reserved water rights that are implied rights in reservations, Native Nations are granted seniority in water rights, which means they are first to take as much water as they need.

Writing for the majority, Justice Kavanaugh, is summarized in the syllabus:

Finally, the text of the treaty and records of treaty negotiations do not support the claim that in 1868 the Navajos would have understood the treaty to mean that the United States must take affirmative steps to secure water for the Tribe.³

First, the Navajo leaders most likely understood that reserving water rights meant just that, as they stood there with an interpreter explaining what this meant. Most of the Navajo people, as parties to the treaty, likely knew only the Navajo language, or certainly it was their first language.

Second, the Winters doctrine, a case decided in 1908 by the U.S. Supreme Court⁴ held that Native Nations could expect to be supplied the water required to sustain life and conduct agriculture and other activities as part of the reservation where they were directed to live. Despite this principle, the Justices looked to the history of the negotiating documents of the treaty in 1868 as if this was a contracts case, and they were deciding a freedom to contract case. This was none of that.

Arizona v. Navajo Nation (2023)

“Too bad we could not find a case exactly on point!”

(Artist credit: anonymous)

Justice Gorsuch is the only Justice who was precisely on point with his entire analysis. History will likely prove his version to be the majority years from now when the Court has to correct this opinion, and his dissent will be cited.

The majority is so off point that it does not even answer the question asked by the petitioners (please define our water rights); but because it is so off point, it may be distinguished in the future as specific only to the Navajo Nation treaty, and its impact to other reserved water rights for Native Nations, will be negligible.

Earlier this year in February, the Biden Admininstration with Sec. Deb Haaland, entered into a water settlement agreement with the Navajo Nation that was passed by Congress and signed into law. This settlement agreement defined the water rights for the San Juan River and provided for infrastructure investments, decades over due, for the northwestern sector of the Navajo Nation within the New Mexico border. PBS reports that:

About $39 million is headed to the Navajo Nation for a separate settlement that will fund drinking water infrastructure in San Juan County, a part of the 27,000-square-mile (71,000-square kilometer) reservation that is in Utah.⁵

The Navajo Nation is not unique in these water conflicts. I had the honor of serving in the U.S. Department of Justice, Indian Resources Section, in Washington, D.C. as an intern during my law school years. I was handed a stack of several cases with a note that read something like, “see what you can do with these.” To my chagrin these were water cases all on conflicts on the lack of water left for Indian Nations in the Western U.S. after surrounding and upstream non-Indian communities had taken all they wanted and more. These cases had lingered for decades, some a half a century. I began to feel “what you could do with these” would be very little. Even a new, fresh and creative idea would require beginning the process again. I was appalled the U.S. had allowed this to happen. Another genocidal policy.

In February 2023, the Biden Admininstration and Sec. Deb Haaland announced water settlement acts with 15 Native American Nations. These settlement acts bring to closure these decades long water negotiations and disputes that held projects back and prevented any improvements in infrastructure.⁶

However, there are still more than a dozen outstanding water conflicts. The Hopi Nation within the boundaries of the Navajo Nation has suffered from the unrestrained depletion of their water by a coal mining operation that has spanned decades (Peabody).⁷

Aspects of water quality are an additional array of water issues that are addressed primarily through federal law.

Increasing water pressures to come

As the Western United States continues to have more and more water shortages⁸ there will be less water for the Navajo Nation as well as the other Native Nations through the western United States. There will be less water for everyone.

Any hope of fairness becomes increasingly diminished. But reaching settlements for 15 Native Nations will make it possible to move forward with new approaches to cope with water that is increasingly in short supply.

The U.S. Congress could invest in research to develop a water facility that could use hydrogen to produce water. Infrastructure could bring water from surface bodies of water. Ultimately, new sources of water will need to be brought into reservations. Thinking about how to do this should be a priority for the U.S. Dept. of Interior and the Bureau of Indian Affairs. Failing to prioritize and act upon these critical water-related challenges would not only perpetuate the cycle of inequality and suffering for Native Nations but also give the impression of policies that have devastating consequences, reminiscent of historical acts of genocide.

1. https://www.supremecourt.gov/opinions/22pdf/21-1484_aplc.pdf

2. 598 U. S. ___ (2022), at p. 9.

3. Arizona v. Navajo Nation, 599 U. S. ____ (2023) at p.3 (Syllabus).

4. Winters v. United States, 207 U.S. 564 (1908).

5. https://www.pbs.org/newshour/politics/15-native-american-tribes-to-receive-580-million-in-federal-money-for-water-rights-settlement

6. https://www.pbs.org/newshour/politics/15-native-american-tribes-to-receive-580-million-in-federal-money-for-water-rights-settlement

7. https://www.propublica.org/article/arizona-water-ruling-hopi-tribe-limits-future

8. https://www.unep.org/news-and-stories/story/climate-dries-american-west-faces-power-and-water-shortages-experts-warn