'Water is a human right': Supreme Court ruling in Navajo case disappoints, angers people

As a young Diné farmer and writer living on the New Mexico side of the Navajo Nation, Alastair Bitsoi waters his non-GMO corn crops with harvested rain and snow water that comes from the runoff and streams of the Chooshgai Mountains. His farm and the area he plans to build a home on sit across the road from the massive Navajo-Gallup Water Supply Project, which, once completed, will deliver more than 12 billion gallons of water a year to homes and farms.

The project will move water from the San Juan River to the eastern section of the Navajo Nation, the southwestern portion of the Jicarilla Apache Nation, and the city of Gallup, stopping at the Arizona state line. It was made possible by the Navajo Nation San Juan River Basin Water Rights Settlement in New Mexico.

But it helps only a small part of the Navajo Nation. On Thursday, Bitsoi expressed his disappointment with the U.S. Supreme Court ruling that rejected, on a 5-4 vote, claims by Navajo leaders that the federal government was obligated to help secure and deliver water across the reservation.

A tribe's need for water: Supreme Court rejects claims by the Navajo Nation in a key water case

“I think the people, the leaders of the Navajo Nation, envision water infrastructure across the Navajo Nation through these settlements,” Bitsoi said. “Whether it’s the one in New Mexico or the Utah Navajo Water Rights Settlement, those would build infrastructure in those regions, but because of the court case today from the high court, it’s improbable that my Diné relatives in Arizona may not even have the opportunity for water.”

'We are going to move forward'

In his majority opinion, Justice Brett Kavanaugh wrote that the Treaty of 1868 between the U.S. and the Navajo Nation did not require the government to take active steps to secure water access.

He said to help meet water needs, the tribe has obtained water from, among other sources, rivers, tributaries, springs, lakes and aquifers on the reservation, and that the Navajo Nation contains a number of water sources the people can rely on.

“The Navajo argue that the United States must take affirmative steps to secure water for the Tribe — for example, by assessing the tribe’s water needs, developing a plan to secure the needed water, and potentially building pipelines, pumps, wells or other water infrastructure,” he wrote.

Navajo Nation President Buu Nygren said during a Friday news conference that the ruling doesn’t say the tribe will never secure water rights, but made it a little tougher.

“This isn’t going to affect or say that the Navajo Nation is not going to have any claims to the Colorado River,” said Nygren. “We are going to move forward. We didn’t lose anything as the Navajo people. The way I see it is, it actually re-energizes us as a nation to regroup and re-strategize and come back together to actually strengthen us as a Navajo Nation.”

And while Kavanaugh paints the Navajo Nation as dependent on the federal government to supply infrastructure that would transport water within its communities, experts said Thursday that simply isn't true. The Western Navajo Pipeline would supply water from Lake Powell to Navajo chapters throughout Western Navajo Agency communities such as LeChee, Kaibeto, Coppermine, Bodaway/Gap, Cameron, Coalmine Canyon and Tuba City, providing a stable, reliable, long-term water source.

The Navajo Nation had approved more than $50 million of its funds to go toward Phase I of this project. So far, efforts to secure water for the pipeline have been unsuccessful after Congress failed to act on earlier settlement proposals.

"We showed the state of Arizona we are able to use our own money to bring water into communities," said former Navajo Nation President Jonathan Nez, who signed the resolution. "The Western Navajo Pipeline, without a settlement we put in our own money into a water line project to show everyone we are not going to wait for a settlement. We are going to build the infrastructure if need be with our own resources."

Legal experts: Decision ignores past rulings and sovereignty issues

Bitsoi is a millennial Navajo, who like many in that age group, doesn’t live full-time on the Navajo Nation, but is working toward establishing a permanent home and farm there for when he returns, which is what many young Navajos are all told to do.

“Go, get your education, and return to help your people,” is a well-known Navajo proverb often said to young Diné students.

But young people say they can’t come back to make a permanent home without water. In the Treaty of 1868, the tribe agreed to make the reservation their permanent home, but the Supreme Court said Thursday that “does not mean that the United States agreed to take affirmative steps to secure water for the Tribe.”

“SCOTUS completely ignored Winters v. United States, in which it states that the establishment of an Indian reservation implicitly reserves the amount of water necessary to fulfill the purpose of the reservation/sovereign nation,” said Kim Smith, from the Indigenous mutual aid collective Nihi K’é Ba.

She said after decades of resource colonization, the latest ruling came as no surprise to her. She said the decision shows why it’s time for an Indigenous person to get a permanent seat on the Supreme Court.

“We have been on these lands for thousands of years,” Smith said. “Rights of Mother Earth are embedded in our prayer, song and ceremony, essentially our way of life. Navajo water has powered the greater Southwest and sucked our aquifers dry and this is the thanks we get?“

The Navajo Nation is the largest tribe in the U.S., with more than 300,000 enrolled members. About half live on the reservation, which spreads across Arizona, New Mexico and Utah in an area the size of West Virginia, the largest reservation in the country.

And while the average American uses 80-100 gallons of water per day, a person living on the Navajo Nation can use barely one-tenth of that. Even with these daunting facts, many Native scholars, legal minds and academics weren’t shocked by the court's decision.

“These are the battles of sovereignty that the Navajo Nation should be focused on,” Smith said. “Water is a human right. Why is it that every administration acts like this is a new issue? We have been in these water wars for decades, we’ve been in a drought, the climate is changing. We have warned about this outcome. What treaty hasn't the U.S. government not broken or changed to suit themselves? There will never be justice on stolen land.“

How a narrow decision could affect future claims

The decision was not completely unexpected, Heather Whiteman Runs Him said, associate clinical professor at the James E. Rogers College of Law at the University of Arizona.

"It leaves a lot to be desired," she said.

Whiteman Runs Him, a member of the Crow Tribe, said the Navajo Nation had done everything it could and had knocked on every door to secure water for its people.

She said Justice Neil Gorsuch's dissenting opinion provided a thorough analysis of the court's majority opinion, and how it "got off the train one step short."

Whiteman Runs Him, one of several attorneys and law professors who wrote an amicus brief supporting the Navajo Nation's litigation, said the tribe's request wasn't unreasonable or unprecedented.

"All they asked was for the federal government to do something measurable to put an end to the questions about water," Whiteman Runs Him said.

Monte Mills, a law professor at the University of Washington School of Law and another author on the amicus brief, said the decision may make it harder for tribes to argue that the United States has a trust obligation to assist tribes.

He also praised Gorsuch's dissent. "But it's always beneficial to say the decision isn't as bad as it could have been," Mills said. "Narrow decisions like this one are good."

He said the decision answered a question for the Navajo in terms of what their options are.

Tribes willing to share water: With water, tribes can reclaim their agricultural heritage and restore riverside landscapes

Rep. Raúl M. Grijalva, D-Ariz., the ranking member on the House Natural Resources Committee, issued a statement describing the decision as dangerous.

“(It) moves us backward to our shameful past in which treaties were promises not worth the paper they were written on,” Grijalva said. “Forcibly removing Indigenous Peoples from their full homelands is a violence we can never reverse. Today, the Court’s majority states that when a treaty establishes a ‘permanent home’ for a tribal nation, the U.S. government doesn’t have to take the most basic steps to ensure the delivery of water needed for a livable home — let alone a permanent home.”

But even in the Navajo Nation, there are many steps to get to where Bitsoi is. Working through the bureaucracy of trying to obtain a homesite lease or an agricultural land use permit can be a daunting task that can leave one frustrated enough to give up, dealing not only with the Navajo Nation or its monopoly utility company, Navajo Tribal Utility Authority, but also the federal government, such as Indian Health Services and Bureau of Indian Affairs.

Add all that to the lack of a secure water source, and building a permanent home in the Navajo Nation can seem like a pipe dream for many Diné.

"The Supreme Court's decision is trying to kill us by dehydrating us," Bitsoi said.

How the decision reaffirmed water rights

At Friday's news conference, Navajo Nation Attorney General Ethel Branch said the court's ruling was a slim majority vote, and it acknowledges that the United States holds water in trust for the Navajo Nation, and that point is vital.

“But the decision unfortunately did find that our treaties didn’t require the U.S. to take specific affirmative steps to secure water for the nation,” said Branch.

The Winters Doctrine, based on a 1908 Supreme Court ruling, wasn’t shaken by this decision, she said, it opened the door for potential pleadings. The decision also did not touch on actual water rights and has no effect on the ongoing Little Colorado River adjudication case or other ongoing water rights negotiations in Arizona.

“This decision just underscores for us the callous environment we find ourselves in these courts,” said Branch. “Whether it's the state court where Arizona wants to aggrandize all the water for itself and not share that with the Indigenous nations, or the Supreme Court itself, the courts of the so-called conquerors, to think we would be treated fairly in this forum is a stretch.”

She said the ruling inspires the Navajo Nation to fight harder, and underscores that this isn’t the only way to secure the tribe’s water rights.

“The first and most important silver lining is that the court reaffirmed the Winters Doctrine, which is important for other tribes as well,” said Shay Dvoretzky, an attorney for Navajo Nation who argued the case before the Supreme Court. “And it reaffirmed that the Navajo, in particular, have water rights under the 1868 treaty.”

Reiterating what Branch said earlier, Dvoretzky said the only thing the court held was that the tribe could not get the relief it sought, which was an assessment and a plan from the federal government. The court also invited the possibility for other potential legal action when securing its water rights, by bringing different challenges in court.

“Beyond litigation, the court made clear that the political branches can help the Navajo Nation secure the water that its people need,” said Dvoretzky. “The dissent really set the historical record straight, it showed some of the injustices the Nation has suffered at the hand of the federal government.”

Republic Indigenous issues reporter Debra Utacia Krol contributed to this story.

Arlyssa Becenti covers Indigenous affairs for The Arizona Republic and azcentral. Send ideas and tips to arlyssa.becenti@arizonarepublic.com.

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This article originally appeared on Arizona Republic: SCOTUS ruling on Navajo water claims was disappointing, not unexpected