Last month, the U.S. Supreme Court ruled against the Navajo Nation’s request for federal assistance in assessing the tribe’s water needs and potentially whether those needs should be met with Colorado River water, rather than reservation groundwater that is often salty and polluted. The 5-4 decision resonated Monday night in Steamboat Springs, when guest speakers with Seminars at Steamboat dipped their toes into the Colorado River Basin, and viewed the region’s complicated history, hydrology, and politics through the eyes of the water-poor Navajo Nation.
In a case known as Arizona vs. Navajo Nation, the Supreme Court ruling said the federal government was not obligated to help the tribe assess tribal water needs, nor that it was the responsibility of the court to force the issue, instead pushing responsibility off onto Congress.
At core issue is the 1863 treaty which created the sprawling reservation across three states, in which the United States promised water for agriculture and household use. That promise has never been honored, and looming over the case is this question: If a federal assessment of how much water the tribe needs is conducted, can that be viewed as a legal water right? And if the Navajo can ultimately acquire legal rights to Colorado River water, what does that imply for the 541 tribes in the U.S.?
Now in its 21st season, Seminars at Steamboat presents free, nonpartisan policy discussions each summer from leading national experts. Monday, Seminars presented Heather J. Tanana, JD, on “Colorado River in Crisis: Learning from the Past to Protect the Futures.” She was joined on stage by Luke Runyon, KUNC managing editor and a Colorado River reporter since 2017.
Tanana’s mother is Navajo and her father Latino, and she is a nationally recognized researcher, educator, and legal expert in law, public health and water policies. The whole issue of clean, potable water on the Navajo reservation is deeply personal for Tanana – she said she has cousins and a beloved aunt who have no access to piped water.
They are representative of the 200,000 Navajo people in the Southwest, 30 percent of whom lack access to clean, potable water and 40 percent have no running water in their homes. Much of the reservation’s groundwater is too salty, laden with arsenic or polluted with the legacy of uranium mining. Many residents drive as much as 50 miles on rough roads, to access distribution pumps, where they can fill up livestock tanks on pickup trucks, or five-gallon buckets, said Tanana.
“The average, daily water use per person in those households is two-to-three gallons a day,” said Tanana, who’s a faculty member at the Johns Hopkins Center for Indigenous Health. According to the Center for Disease Control, the average American uses 156 gallons a day.
Tanana related how a high school janitor on the reservation comes in to work early each morning, just to let students use shower facilities.
At the time of the court ruling, Tanana expressed disappointment that Justice Gorsuch wasn’t able to bring another conservative justice along to join the liberal justices in favoring the Navajo position. What the ruling does, she told National Public Radio, is leave the status quo intact, that the Navajo are on their own when it comes to improving clean water access.
That means a lot of work. Tanana was the lead author of “Universal Access to Clean Water for Tribes in the Colorado Basin.” The report asked who would design, install, operate, and maintain water systems. The answer, said Tanana, is tribes appear to be on their own.
“I am, however, encouraged by a change I’ve seen in the past five years,” Tanana told the Seminars audience. Prior to five years ago, the Navajo and other tribes within the Colorado River Basin were thoroughly ignored by the feds and the seven states within the basin. “Now everyone is finally acknowledging that in future decisions about the Colorado Compact, the tribes have to have a seat at the table,” Tanana said.
Future water use
Runyon noted that in dealing with an over-allocated water basin, the conversations turn to current users using less water, while the tribes would like to have more. How does that work out, he asked.
“Colorado River water could be used to supply water to every tribe in the basin,” responded Tanana, “with no impact on the overall system.” Compared to the 30 tribes within the basin, their consumption of Colorado River water would be small, compared to the 40 million residents of the seven states that currently rely on basin water.
What’s really at issue, said Tanana, is “a matter of justice.” Not to mention compensation for decades of tribes being shut out without use of Colorado River water, she added.
So future conversations may touch on what are the best uses of Colorado River water, said Runyon. There’s already been criticisms of golf courses and water-intensive crops like alfalfa hay, he said, but since western water law is based on prior use, it is pretty hard to change water use. “And what about how Israel handles water so efficiently,” he asked. Turns out, all Israeli water is nationalized, he noted, so that’s not going to happen here. Waste of water is in the eye of the observer, he said.
“I have learned from years of reporting, is that people all have different relationships with water,” he said, and that determines how they think about water issues.
“Under current water law,” said Tanana, “there is no incentive to conserve water.” So people don’t as long as they’re making money. Change might come if there’s the prospect of making more money, or if farmers can be compensated for conserving water, she added.
“Is there the political will for real change?” asked Runyon.
That’s kind of complicated, said Tanana, by history, economics, and politics. There are 514 tribes in the country, following issues and debates like this. If one tribe gets water rights, do they all get similar rights?
Tanana said the states and especially the federal government “don’t want a permanent solution” because it would create incredible complexities, complications, and controversy.
For now, it is better to build tribal capacity for dealing with water issues – hydrology, engineering, water law expertise, said Tanana.
It may simply take time for attitudes and values to change about water. That’s why Tanana is so intrigued and excited about the young people she sees growing up on the Navajo reservation, in the southwest. “They are navigating inside two worlds – modern and traditional,” she said. She sees it in social media, in classrooms, as young people strive to “find balance” between old and new worlds.
That is where she sees hope.