The Navajo Water Rights Case: Implications for Tribal Sovereignty

Friday - July 7 2023, 13:07 UTC - 1 year ago

The Navajo Nation is the largest Native American reservation in the U.S. They have pressed the U.S. government to define their water rights since the 1950s, which culminated in a U.S. Supreme Court case. The U.S. government has a history of removing Native Americans from their lands and moving them to areas with fewer resources. The case comes down to whether the U.S. government’s promise of a “permanent home” can be fulfilled without access to water.

The Navajo Nation, the largest Native American reservation in the U.S., covers 27,000 square miles (70,000 square kilometers) in the Southwest – an area larger than 10 states. Today it is home to more than 250,000 people – roughly comparable to the population of St. Petersburg, Florida, or Winston-Salem, North Carolina.

Unlike those cities, however, 30% of households on the Navajo Reservation lack running water. Hauling water can cost 20 times what it does in neighboring off-reservation communities. While the average American uses between 80 and 100 gallons (300-375 liters) of water per day, Navajo Nation members use approximately seven.

Since the 1950s, the Navajo Nation has pressed the U.S. government to define the water rights reserved for them under the 1868 treaty that created their reservation.

These efforts culminated in a U.S. Supreme Court case, Arizona v. Navajo Nation, which posed this question: Does the treaty between the Navajo Nation and the United States obligate the federal government to "assess" the water needs of the Navajo and "make a plan" for securing water to meet those needs? On June 22, 2023, the Supreme Court ruled 5-4 that the answer was no.

The centrality of water rights .

Water rights – the ability of individuals to use public water supplies – have always been a central issue in the U.S. West. They are only becoming more so as drought and climate change shrink the existing supply.

Federal reserved rights have special importance with respect to American Indian reservations for several reasons.

First, the priority date when the rights begin is the date when the reservation was created. In most cases, this creates a very senior right – one that supersedes those of people who arrive in the area later.

Second, these rights exist regardless of whether the tribe has begun to use the water. Because all of the water in many western rivers has been fully allocated,these rights have a significant potential to displace existing juniors, or people who came later and have rights under state water law.

Third, among the 30 federally recognized tribes in the Colorado River Basin, approximately a dozen – including the Navajo Nation – are still in the process of getting a court to adjudicate the scope of their federal water rights.

Finally, tribes or nations usually need a lot of water to irrigate reservation lands or establish a viable permanent homeland in the dry Southwest. In this context, it’s clear why the Navajo have called on the federal government for decades to specify their federally reserved water rights.

Does a ‘permanent home’ imply access to water? .

The Navajo quest for a clear determination of their water rights is rooted in America’s history of removing Native Americans from their lands and moving them to areas with fewer resources.

As Justice Neil Gorsuch recounted in a detailed dissent in this case, the U.S. government embarked in the 1860s on a program of "removal, isolation, and incarceration" to force the Navajo to vacate lands so they could be settled by whites. Thousands of U.S. troops roamed Navajo lands, destroying everything they could.

After the Navajo surrendered in 1864, the U.S. government created a permanent homeland for the tribe. The catch? It was in Arizona, a very dry place.

In my view, the case comes down to this: Though the U.S. government promised the Navajo a permanent home and the right to occupy their territory “forever,” can that promise be fulfilled without access to water? .