It’s an effort for 73-year-old Percy Deal to haul water to his home on the Navajo Nation.
Every three weeks, he loads two 55-gallon drums into his truck and drives 20 miles on rough, unpaved roads to the public water supply. To keep trips to a minimum, he uses a splash pad in his kitchen where he can save water in a basin and reuse it multiple times for handwashing and other chores.
He’s given up on having enough water to grow crops, which he remembers neighbors doing on Black Mesa when he was growing up.
“About 30, 40 years ago, we used to have plenty of rain,” Deal said. “And there was a natural spring where water came out on its own. I remember when I was a little boy herding sheep, there was at least two or three places where the water came out. Those springs are dry now. People used to plant corn, squash, potatoes, beans and things like that. Now the ground is so dry that plants don't grow anymore.”
News of water shortages, exacerbated by climate change, population growth, mining and other development, is everywhere these days in the American Southwest.
But on the Navajo Reservation, a sovereign tribal nation that sits on about 16 million acres in northeast Arizona, southern Utah and western New Mexico, nearly 10,000 homes have never had running water.
How that can and should be resolved is one aspect of a case brought before the U.S. Supreme Court on March 20, with the justices’ decision due any day now.
Water rights have never been quantified
In Arizona v. Navajo Nation (which has been consolidated with the case termed “Department of the Interior v. Navajo Nation”), tribal attorneys argue that, by not providing their nation with sufficient water, the United States has breached a trust obligation related to treaties settled in 1849 and 1868.
At issue is the idea of what it means to “provide” water. All parties agree that the Navajo Nation has reserved water rights, termed Winters rights, that are supposed to “fulfill the purposes of the reservation,” including home and agricultural use. As the oldest users of water in this region, their rights also predate, and therefore outrank, those currently hotly contested between the seven Colorado River Basin states — Arizona, California, Utah, New Mexico, Colorado, Nevada and Wyoming.
But those rights have never been quantified, which would require an assessment of need, so they have also not been realized. And not everyone agrees from which source that water should come or whether the federal government's duty to allocate the water obliges it to also help transport it. The most settled areas of the Navajo Nation are not adjacent to the main Colorado River, so rights awarded to that source, for example, would not immediately equate access.
The 1868 treaty promised the Navajo people a “permanent home” in exchange for cessation of war activities against white settlers and a restriction of the territory they occupied. As part of the trade, the U.S. government was also to provide money, livestock, seeds, “agricultural implements” and an allowance for roads, among other things.
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In essence, the U.S. promised the Navajo people “a permanent homeland on which they can prosper,” Heather Tanana, who is research faculty at the University of Utah law school and a member of the Navajo Nation, wrote in a paper published March 10 in the Northeastern University Law Review.
“The government didn’t invest in tribes because the government didn’t think tribes would still exist,” Tanana told The Arizona Republic, referring to work by historians on attempts to assimilate Native Americans into white culture.
“So they were putting in huge infrastructure projects elsewhere and things like that. But for a very long time, really right up to the '70s, the prevalent belief was that tribes will no longer be here, so why should we support them?”
Running water is life, or at least health
In one example of the connection between water access and wellness, the COVID-19 pandemic hit the Navajo Nation hard, with 83,000 positive cases and more than 2,000 deaths reported as of May 2023 among the 173,000 Diné, or Navajo people, living in the region, according to the Navajo Department of Health.
The Centers for Disease Control and Prevention determined in 2020 that COVID-19 was affecting American Indians and Alaska Natives at a rate 3.5 times higher than that among non-Hispanic whites.
Then-Navajo Nation President Jonathan Nez told the U.S. House of Representatives in 2020 that he attributed the high local toll of COVID-19 to the lack of water in the homes of Navajo people.
“Clean water is a sacred and scarce commodity,” he said.
Residents of the Navajo Nation are 67 times more likely than other Americans to live without running water, according to the DigDeep Navajo Water Project, a nonprofit Tanana said has tried to fill the gap in research and solutions left by the U.S. government.
This means between 30% and 40% of households on the Navajo Nation, like Deal’s, must haul water from underground sources that may be contaminated, as is common from nearby uranium mining, or miles away down unmaintained roads.
Their resulting extreme water conservation practices — reusing water for handwashing and other needs and going through less than 10 gallons per person per day compared with a national average 10 times that — put many residents of the Navajo Nation at greater risk of infection, as has been found by numerous scientific studies.
“The scientists are telling us to wash our hands and they’re referring to fresh water each time,” Deal said. “But we can’t do that because if we use fresh water each time we wash our hands, we run out of our supply that much faster.”
Limited access to water also means less opportunity to bolster health by growing or raising traditional food crops or livestock. With only 14 grocery stores on an area as big as West Virginia, research has classified the Navajo Nation as a food desert, meaning longer commutes to access healthy food have resulted in widespread poor nutrition.
Climate change, with its drying influence on agriculture attempts and the toll extreme storms take on unpaved roads used to access food and water, only makes the problem worse.
“The impacts of climate change are hard to summarize, because really, it touches everything,” said Jeff Robison, a Utah-based pediatrician who does work on the Navajo Nation. “And I think the health inequities that exist amongst Native populations right now have not just materialized out of nowhere, but are a result of hundreds of years of structural violence and inadequate funding, lack of meaningful treaties, all of the obligations that the government is supposed to provide for native populations. We haven't delivered on it like we should have.”
Tanana’s paper is the first she's aware of to make the connection between water access, climate change and health on the Navajo Nation. She notes that the investment in health care by the Indian Health Service, the federal health program for American Indians and Alaska Natives, amounts to just a fraction of what the federal government spends per person nationwide.
Expenditures by IHS, according to its website, for patient health services in fiscal year 2019 were $4,078 compared with $9,726 per person for health care spending nationally.
Some may argue this discrepancy is due to two separate nations caring for their citizens in different ways. Others argue this statistic is further proof that the U.S. government has abandoned its trust obligation to support the well-being of the Navajo Nation.
Deal has been trying to secure nonprofit funding to connect 60 homes on the Black Mesa to groundwater. But he says funding is only one of several challenges. A long-standing building moratorium related to unresolved land disputes between the Navajo and the Hopi tribes was lifted in 2009, but residents have yet to recover. Ownership of nearby wells by the now-defunct Peabody Coal Mine has also proved a hefty obstacle for a community without the engineering or economic resources to install a new system or the legal pathways to wrestle back control of groundwater from industry.
“The idea that tribes can just go access water and there’s nothing stopping them is a total disregard for the way that the federal government action left tribes diminished,” Tanana said.
A moral obligation in a world ruled by laws
Neither climate change nor public health on the Navajo Nation was part of the arguments brought forward in the current Supreme Court case over Navajo rights to water in the Colorado River Basin.
But Tanana’s paper argues, indirectly, that maybe they should be.
She does not think the current status of more than a third of the Navajo Nation being disconnected from reliable water fulfills the promise of a permanent livable homeland.
“On the international stage, we've seen a movement to recognize a human right to water and sanitation and how it's been connected with educational and economic development, all of these things that tribes also are struggling with,” Tanana said. “California has recognized the right to water in their state and other states are starting to do this. But as a federal initiative, it just isn’t happening, and it should be, because the research is there. All the different ways that health care depends on clean water access is pretty well established.”
Rhett Larson, a water lawyer and professor of law at Arizona State University, said even if the Supreme Court doesn’t rule that, legally, the U.S. must physically provide water to the Navajo Nation, the question still stands of whether, morally, it should.
“The federal government has a fiduciary duty to tribes,” Larson said. “That’s a trust relationship that’s well established in the law. Now the question is, what does the government owe the tribes with respect to their water right? I agree they probably don’t have a fiduciary duty to build infrastructure, because they don’t have the money unless Congress appropriates it to them. But I do think the court needs to recognize that the government owes them some kind of a duty.”
Larson describes the relationship between the federal government and the Navajo Nation as “paternalistic,” with the feds “constantly holding purse strings and making decisions.” The tribes don’t technically own their land, he says, which makes it difficult for them to borrow money from banks to build infrastructure on their own.
He brought up the stark contrast between the attention given to the long-standing water situation on the Navajo Nation compared with recent water shortages in Rio Verde Foothills, a high-end rural development outside of Scottsdale that has been paying to have water hauled in on trucks after Scottsdale stopped providing it through its pipes.
“We have thousands of our neighbors, fellow Arizonans, who have lived like that for decades and decades on tribal lands and on the borderlands. Nobody ever raises a question about them,” Larson said. “But the minute there’s a bunch of people with mansions north of Scottsdale who are having a hard time, now we’re like ‘well, no Arizonan should live like that.’ It’s time to fix the problem.”
Tanana notes that recent funding allocated to the Navajo Nation from the Bipartisan Infrastructure Law will be a partial, but incomplete, fix.
“With how tribal infrastructure has been ignored, you can’t just catch up in a year or a day or with a small amount of funding,” she said. “And if the systems (that do exist) are not operated and maintained properly, they’re still going to fall into disrepair and that’s still a huge gap that we have right now, even with the huge (Infrastructure Law) money that was received.”
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Before infrastructure can be negotiated, which Larson said could become part of a settlement arrangement, the amount of water that constitutes a “permanent homeland” has to be established. With the way climate change is challenging agriculture in the West, this is something of a moving target. Water needs could, theoretically, also include any number of activities Navajo people want to invite onto their land, including more industry.
Deal is worried about permits for a new Black Mesa Pumped Storage Project submitted by Nature and People First Arizona that seek to authorize several new hydroelectric facilities near Kayenta. Larson said this could be part of showing a need for large quantities of water as legal proceedings continue. But Deal has seen too many projects come and go before and leave his people and the environment worse off.
“All these extractive industries put together have caused climate change, and climate change has a big effect on our livelihood,” Deal said.
Whatever the court's ruling in Arizona v. Navajo Nation, it won’t connect all of the dots to improve conditions for residents like Deal. If water from the main stem of the Colorado River is allocated to the Navajo Nation, someone somewhere will likely still have to figure out how to get it to the communities.
“When it comes to water infrastructure, the door you have to knock on is Congress, and the way you knock on Congress’s door is politics and not law,” Larson said.
Joan Meiners is the climate news and storytelling reporter at The Arizona Republic and azcentral.com. Before becoming a journalist, she completed a doctorate in ecology. Follow Joan on Twitter at @beecycles or email her at email@example.com. Read more of her coverage at environment.azcentral.com.
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This article originally appeared on Arizona Republic: Climate change adds questions to Supreme Court case on Navajo water