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Supreme Court rules the US is not required to ensure access to water for the Navajo Nation | Kiowa County Press

A water pump outside a Navajo home in Thoreau, New Mexico Spencer Pratt/Getty Images

Robert Glennon, University of Arizona

The Navajo, the largest Native American reservation in the United States, 27,000 square miles Southwest (70,000 sq km) – area larger than 10 states. Today, he has over 250,000 people, roughly the population of St. Petersburg, Florida, and Winston-Salem, North Carolina.

However, unlike those cities, 30% of households on the Navajo Reservation lack of running water. Transporting water can cost him 20 times more than transporting it in neighboring out-of-preserve communities. An average American he uses 80 to 100 gallons (300 to 375 liters) of water a day, while a Navajo member of his nation uses about 7 liters of water.

Since the 1950s, the Navajo have put pressure on the U.S. government to define the water rights reserved for them. Treaty of 1868 That spawned their booking.

These efforts culminated in a U.S. Supreme Court case. Arizona vs Navajo Nation, this question raised questions such as: A treaty between the Navajos and the United States would require the federal government to “assess” the Navajo’s water needs and to “assure water to meet those needs”. Are you obligated to “make a plan”? Supreme Court 22 June 2023 5-4 decision that the answer was no.

Daily life on Navajo land may involve long drives to bring water home.

Centrality of water rights

Water rights, or whether individuals have access to public water supplies, have always been a central issue in the western United States.Drought and climate change will only make it worse reduce existing supply.

Federal reservations are of particular importance with respect to Native American reservations for several reasons.

First, the priority date for entitlement start is the date the reservation was created. In most cases, this creates very advanced rights that supersede those of those who arrive in the area later.

Second, these rights exist regardless of whether a tribe started using the water. Since the waters of many western rivers are all fully allocated, these rights have great potential to displace existing juniors, or those who come later and have rights under state water laws. I’m here.

Third, about a dozen of the 30 federally recognized tribes in the Colorado Valley are still in court, including the Navajo. Determine the Scope of Federal Water Rights.

Finally, tribes and nations typically require large amounts of water to irrigate reservations or establish permanent homelands in the arid Southwest. With this in mind, it’s clear why the Navajo have for decades pushed the federal government to specify federal water rights.

A graph showing regional drought levels from 2001 to 2023.
The Colorado River Basin, which includes parts of seven states, has been suffering from severe drought for more than two decades, increasing competition for water rights. Drought levels range from D0 (abnormally dry) to D4 (abnormally drought). US Drought Monitor

Does “permanent home” mean access to water?

The push for clear determination of water rights for the Navajo is rooted in America’s history of clearing Native Americans from their lands and relocating them to areas with fewer resources.

As Justice Neil Gorsuch elaborated in his detailed dissent to this case, the United States government in the 1860s “Transfer, Quarantine, Imprisonment“To force the Navajo to vacate their land so that white people can settle. Thousands of US troops roamed Navajo land, destroying everything they could destroy.

After the Navajo surrendered in 1864, they were deported to Bosque Redondo, a barren land in eastern New Mexico 300 miles away. Many Navajo died on the “Long Walk”, and many more died over the next four years.

In 1868, the Navajo agreed to a treaty to reserve part of their original land as a “permanent homeland.” The US government promised to provide seeds, farm tools, sheep and goats, but the treaty made no explicit mention of water.

Forty years later, the Supreme Court ruled that: Winters vs America It has become a landmark for understanding federally protected water rights for tribes and nations. The United States sued an irrigator in Wyoming who had established the Fort Belknap Indian Reservation in Montana for the Gross Bentle and Assiniboine, and later built a canal and reservoir on the Milk River above the reservation.

The Supreme Court acknowledged that water was not mentioned in the 1888 agreement that created the Fort Belknap Reservation, but stated:[t]”The land was dry and virtually worthless without irrigation.” Judges implied that Congress intended to ensure enough water for the tribes to have “permanent land.” or concluded that it was inferred.

What is required by the 1868 Convention?

Beginning in 1956, the Navajo Nation submitted a series of petitions to join the movement. Arizona vs CaliforniaThe Supreme Court’s historic ruling regarding water rights on the Colorado River for five tribes of Indians, excluding California, Arizona, Nevada, and the Navajo.

In the decades that followed, the Navajo repeatedly attempted to get the federal government to assess their water rights in the Colorado River. Finally, in 2003, the Navajo tribe filed this lawsuit.

In his decision, Justice Brett Kavanaugh refused to find that the 1868 Convention satisfied the Winters Framework. The 1868 treaty “reserved water necessary to accomplish the purposes of the Navajo reservation, but did not require the United States to take positive steps to secure water for the tribes.” No,” Kavanaugh wrote, speaking for the majority. “Nor is it the judiciary’s job to rewrite a 155-year-old treaty.” Kavanaugh argued that task fell to Congress.

Gorsuch was also dissenting by Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. Gorsuch is Indian law expertis the only court member who grew up west of the Mississippi River, including water rights.

In Gorsuch’s view, the Permanent Homeland Promise, along with the history surrounding the treaty and the background principles of Indian law, follow the principles laid down in Winters v. United States to conclude that the 1868 Treaty secured some degree of water rights. was enough for for the Navajo.

The Navajo “sent letters to federal officials. They moved this court to clarify U.S. responsibilities in representing them. They tried to intervene directly in water-related litigation,” Gorsuch said. wrote Mr. “And when all those efforts have been rejected, they claim to compel the United States to fulfill its treaty obligations by revealing what water rights they hold on behalf of the United States. woke me up.”

“Each time, they got the same answer: ‘Try again.’ Elvis was still on The Ed Sullivan Show when this routine first started in earnest,” Gorsuch said. .

What’s next for the Navajo?

Arizona, California, and Nevada all intervened in the case to protect their interests on the Colorado River. The American West is so dry that water rights are often a zero-sum game. Judicial recognition of Navajo rights from the Colorado River would reduce the water available to states.

The ruling cements each state’s water rights to the Colorado River and suspends indefinitely the settlement of Navajo claims.

Meanwhile, the Navajo suffer.Lack of access to clean water caused Reservation mortality is high During the COVID-19 pandemic. More than 150 years after the Navajo reservation was established, the Navajo continue to seek water rights.

conversation

Robert GlennonRegents Professor Emeritus and Morris K. Udall Professor Emeritus of Law and Public Policy, University of Arizona

This article is reprinted from conversation Under Creative Commons License.read Original work.

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