Feds want judges to rule the Navajo fight over the water of the Colo. end river
States that depend on water from the flooded Colorado River want the US Supreme Court to block a lawsuit by the Navajo Nation that could upend the way water is shared in the western US
The tribe doesn’t have enough water and says the federal government is to blame. About a third of the residents of the vast Navajo Nation do not have running water in their homes.
More than 150 years ago, the U.S. government and the tribe signed treaties that promised the tribe a “permanent homeland” — a promise that the Navajo Nation says includes an adequate water supply. The tribe says the government has broken its promise to ensure the tribe has enough water and that people are suffering as a result.
The federal government denies this claim. And states like Arizona, California and Nevada argue that more water for the Navajo Nation would hurt already scarce supplies for cities, agriculture and business growth.
The Supreme Court will hear hearings Monday in a case that has crucial implications for how water from the drought-stricken Colorado River is shared and the extent of the US government’s obligations to Native American tribes.
A victory for the Navajo Nation won’t directly translate to more water for the approximately 175,000 people who live on America’s largest reservation, but it is part of a multifaceted approach to meeting a basic need spanning decades.
Tina Becenti, a mother of five, made two or three short trips a day to her mother’s house or to a public water point to haul water home and filled several five-gallon buckets and quart pickle jars. They filled up slowly, taking up hours of their day. Her sons sometimes helped lift the heavy containers into her Nissan SUV, which she drove home carefully to avoid spilling.
“Every drop really counts,” said Becenti.
This water had to be heated and then poured into a tub to bathe their young twin girls. Becenti’s mother had running water, so her three older children sometimes went there to shower. After a few years, Becenti finally had nonprofit organization DigDeep install a large tank so she could use her sink.
DigDeep, which has filed a legal brief in support of the Navajo Nation’s case, has been working to help tribal members gain access to water as larger water rights claims are made.
Extending water lines to sparsely populated sections of the 27,000-square-mile (69,000-square-kilometer) reservation that spans three states is difficult and costly. But tribal officials say additional water supplies would help ease the burden and bring justice.
“You go to Flagstaff, you go to Albuquerque, you go to Phoenix, there’s water everywhere, everything’s green, everything’s watered down,” said Rex Kontz, deputy executive director of the Navajo Tribal Utility Authority. “You don’t see that in Navajo.”
The tribe depends primarily on groundwater to support homes and businesses.
For decades, the Navajo Nation has struggled for access to surface water, including the Colorado River and its tributaries, that can direct them to more remote locations for homes, businesses, and government offices.
It’s a legal battle that resonates with tribes across the United States, said Dylan Hedden-Nicely, director of the Native American Law Program at the University of Idaho and attorney representing tribal organizations that have filed a brief in support of the Navajo Nation .
The Navajo Nation has reached out to settlements for water from the San Juan River in New Mexico and Utah. Both settlements originate from the Upper Basin of the Colorado River.
The tribe has yet to reach an agreement with Arizona and the federal government over Colorado River water rights in the Lower Basin, which includes the states of California, Arizona and Nevada. It has also sought water from a tributary, the Little Colorado River, another major litigation being fought separately.
In the US Supreme Court case, the Navajo Nation wants the US Department of the Interior to consider the needs of the Arizona tribe and come up with a plan to meet those needs.
A federal appeals court ruled that the Navajo Nation’s lawsuit could proceed, overturning a lower court decision.
Navajo Nation attorneys base their claims on two treaties signed by the tribe and the United States in 1849 and 1868. The latter allowed the Navajos to return to their ancestral homelands in the Four Corners region after forcibly marching into an abandoned area of eastern New Mexico.
The Navajo Nation wants the Supreme Court to determine that these treaties guaranteed them enough water to feed their homeland. And the tribe wants a chance to plead their case in lower federal court.
The federal government says it has helped the tribe get water from tributaries of the Colorado River, but no treaty or law compels officials to meet the tribe’s overall water needs. The interior ministry declined to comment on the pending case.
“We absolutely believe they are entitled to water, but we don’t believe the lower Colorado River is the source,” said Rita Maguire, the attorney representing lower-basin states opposing the tribe’s claims.
If the Supreme Court sides with the Navajo Nation, other tribes could make similar demands, Maguire said.
Arizona, Nevada and California claim the Navajo Nation is putting an end to another Supreme Court case splitting water in the lower Colorado River basin.
“The first question in court now is why is the lower court even considering this?” said Grant Christensen, an Indian federal legal expert and professor at Stetson University.
Even if the judges sided with the Navajo Nation, the tribe would not immediately get water. The case would go back to the US District Court in Arizona, and the right to more water could still be years, if not decades, away. The Navajo Nation could also reach an agreement with Arizona and the federal government over rights to water from the Colorado River and funding for delivery to tribal communities.
Tribal water rights are often tied to the date a reservation was established, which could give the Navajo Nation one of the highest priority rights to Colorado River water and force protection on others, said Hedden-Nicely of the University of Idaho.
Given the likelihood that there is a long way to go, Kontz of the Navajo Tribal Utility Authority says many older Navajo will not live to see running water in their homes.
Becenti, the 42-year-old mother of five, recalls shedding tears of joy when running water was finally installed in her home and her family was able to use an indoor flushable toilet.
It’s a relief to “go to the facility without having to worry about bugs, lizards and snakes,” she said.
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