How the Navajo Nation has been shafted by U.S. presidents, including Joe Biden | Opinion
If any American water rights system truly respected seniority, the Navajo Nation would get its full share. The tribe was here first. Instead, our system leaves roughly a third of those on a reservation the size of West Virginia without running water.
The Supreme Court recently ruled 5-4 against a claim by the Navajo seeking a federal plan to someday receive more water. The decision has set back for generations the Navajo’s quest for more water.
This did not have to happen. President Joe Biden could have reversed the position of every president since Dwight D. Eisenhower and agreed to develop a water plan for the Navajo Nation. He could have legitimized his selection of Interior Secretary, Deb Haaland, who is the first Native American to hold the office.
Instead, Team Biden left the Navajo people high and dry. In today’s politics, it was the right thing to do if the only calculation is for Biden to be re-elected.
There is one and only one issue that could uniquely sway the swing states of Nevada, Arizona, New Mexico and Colorado against the president in 2024 as he bids for a second term.
It is water.
Climate change is a triple whammy on the Colorado River, which helps to sustain these states and will force dramatic and unresolved reductions in future water use. A warming climate is bringing longer droughts. Higher temperatures mean less snow and greater evaporation. Warmer springs are awakening earlier the watershed’s canopy of aspen, brush and other vegetation, drinking the runoff that once made it into reservoirs.
This country’s foundational agreement for the Colorado some 101 years ago apportioned more water than nature now provides among seven states. Complicating matters even further is how Congress cemented contractual obligations to California, Arizona and Nevada as it agreed to build Hoover Dam in 1928. The Navajo and all Native Americans in the Southwest were left out of the deal.
The 80-year-old Biden was in grade school when the Navajo began to seek water through the American judicial system. It took two decades for their case case to finally reach the high court.
The Navajo Nation claimed that its 1868 treaty confining the tribe to a reservation included an obligation to provide water for crops and homes. The Interior Department countered that it has no such duty as trustee of the tribe’s water. States such as Arizona contended that a previous court decision had already divided the lower Colorado River, the matter settled.
The Supreme Court essentially punted the issue to Congress. It ruled that neither the treaty nor subsequent court decisions compelled the Biden administration to take “affirmative steps’‘ to help the Navajo with water. Justice Clarence Thomas went a step further and questioned the nation’s role as trustee over the Navajo’s water altogether. The four dissenting justices blasted the decision as completely missing the mark, arguing that the Navajo simply wanted a water plan and that “no one has ever assessed what water rights the Navajo possess.”
The ruling was fundamentally a choice. Is justice found in the creaky edifice of the settlers’ water rights system, nobly referred to as The Law of the River, that has spectacularly disadvantaged the Navajo for more than a century? Or does the treaty dating back to President Andrew Johnson actually mean that providing sufficient water to the Navajo is both the humane and legally required thing to do?
For both Biden and Haaland, this Supreme Court case, Arizona v. Navajo Nation, was a litmus test that clarifies whose side they truly are on. They appear to be allied with the status quo. Just about everyone who arrived in the Southwest after the Navajo and the other tribes claim more senior rights under the contemporary legal system. A slim majority of the Supreme Court seems to agree.
If there is a political calculus behind Biden’s inaction, it is to avoid water becoming an issue that could anger enough voters to sway the election outcome in close states, particularly Arizona and Nevada. They could have taken those brave first steps to develop a Navajo water plan, calm fears, do what is right and live with consequences that may prove to be downright positive. It appears we will never know.
Meanwhile, a typical Navajo uses only seven gallons of water per day on the reservation. The average American uses 14 times that amount of water daily.
Water issues never go away. They will only get worse as the Southwest aridifies in a warming climate. Biden’s administration chose to leave some very hard decisions to somebody else. This will put him in plenty of familiar company some day amid those presidential portraits in the White House.