More than 150 years after the Navajo Nation signed treaties with the United States establishing its reservation and recognizing its sovereignty, the country’s largest tribe still struggles to secure the water guaranteed by those agreements.
Decades of negotiations with the state of Arizona have proven fruitless. The state has been uniquely aggressive in using the scarce resource as a bargaining chip to extract concessions from the Navajo Nation and other tribes, dragging out the talks while Indigenous communities await desperately needed water and infrastructure, a recent ProPublica and High Country News investigation found.
A copy of the 1868 treaty at the heart of the case is displayed in the Navajo Nation’s tribal museum in its capital of Window Rock. The agreement, signed by 29 Diné representatives and U.S. Army Lt. Gen. William Tecumseh Sherman, allowed the Diné people to return to a part of their ancestral homeland after five years in exile and internment at Bosque Redondo in New Mexico.
The Navajo Nation sued in hopes of accelerating the process. The case launched 20 years ago, held the potential to reimagine how tribes secure their water rights. But the U.S. Supreme Court last week dashed those hopes by largely deferring to the status quo the tribe has dealt with for decades.
In a 5-4 decision, the court denied the Navajo Nation’s request that the federal government be forced to act in a timely manner to help the tribe quantify, settle and access its water rights. (While tribes negotiate with states for water, the federal government acts on tribes’ behalf by, for example, helping account for how much is needed and available.) Writing for the majority, Justice Brett Kavanaugh said the tribe’s treaties do not impose “a duty on the United States to take affirmative steps to secure water for the Tribe.”