Supreme Court Case Could Reshape Indigenous Water Rights in the Southwest
Tucked away on the northern New Mexico portion of the 27,000-square-mile Navajo Nation is a green oasis in an otherwise arid, often overgrazed landscape. The region, which received only 3.8 inches of rain in 2020, is home to one of the largest tracts of contiguous farmland in the continental United States.
Water from Navajo Lake flows through 70 miles of canals before heading down an additional 340 miles of lateral irrigation ditches to a sea of roughly 700 central pivot-irrigated circles. There, the Navajo Agricultural Products Industry, known as NAPI, grows blue cornmeal, whole sumac berries, and juniper trees, among other culturally relevant foods under the Navajo Pride label.
Alfalfa and corn are the top cash crops, however. Total sales have made NAPI profitable enough to contribute over $1 million to the Navajo Nation in 2020. “The rangeland is depleted,” says Delane Atcitty, the executive director of Indian Nations Conservation Alliance and a NAPI board member. “That’s why the alfalfa [for cattle feed] is selling.”
But NAPI would make a lot more money if it sold all the alfalfa off the reservation. Instead, it balances tribal food security with economic development. Locals can buy Navajo Pride products at an outpost near NAPI headquarters and at outlets such as Walmart off the reservation, but the Navajo Nation’s 13 grocery stores typically don’t carry the products.
The farm, located near Farmington, New Mexico, a small town with a 19.9 percent poverty rate, spans almost 72,000 irrigated acres. However, it should have 110,630 irrigated acres.
The U.S. government has yet to uphold its end of a deal struck over 60 years ago, in which the Navajo Nation traded some of its water rights to divert San Juan River water, a major tributary to the Colorado River, to the growing urban areas along the Rio Grande in exchange for irrigation infrastructure for NAPI. Sixty years later, and as water resources dwindle, the remaining 40,000 acres of irrigation originally promised to the farm remain undeveloped.
Tribal communities typically have the most senior water rights in a region—at least on paper—yet they often lack the resources to build infrastructure to utilize the water. As a result, not only have Southwestern tribes’ ability to farm been compromised, but approximately 30 percent of the Navajo Nation has no access to clean, reliable drinking water. Currently, about 25 percent of Native communities receive some form of federal food assistance, but tribes would prefer to expand the markets for Native American farmers.
As water grows scarce in the West, two different branches of government are sending mixed signals on tribal water. One the one hand, the Biden administration recently announced that $13 billion from the Bipartisan Infrastructure Law would be invested directly into tribal communities, including $2.5 billion to implement the Indian Water Rights Settlement Completion Fund, which will help deliver long-promised water resources to tribes. And there is more focus than ever before on tribal water settlements, 34 of which had been enacted by the Department of Interior (DOI) by 2021.
On the other hand, later this month, the Supreme Court will hear a high-profile case in which the federal government has decided to push back on its responsibility to provide tribes with an adequate water supply. In 2003, the Navajo Nation sued the DOI and the Bureau of Indian Affairs in the U.S. District Court for the District of Arizona arguing that the 1868 treaty established the Navajo Nation reservation as a permanent homeland and pledged support for agricultural settlement, and therefore required the federal government to provide water.
Last year, the Ninth Circuit Court upheld the fact that the Navajo reservation’s purpose expressly included farming. Most of the 16,000 farms in the Navajo Nation are family-owned, and there is no other commercial farm the size of NAPI. While the Supreme Court case, which will be heard on March 20, was not brought on behalf of NAPI, any decision the top court makes could impact the massive operation. For example, water rights settlements on the Colorado River and Little Colorado River could decrease overall water available for NAPI to utilize.
The implications of the case are striking, says Dylan Hedden-Nicely, a citizen of the Cherokee Nation of Oklahoma, head of the Native American Law program at the University of Idaho, because the Navajo Nation “wants to use this [river] water for agricultural and production and economic development while also freeing up groundwater for domestic use.”
All of this is taking place despite that fact that the critical need to provide water on arid reservations was made clear all the way back in 1865, during the first congressional appropriation debate for irrigation of what was then called the Colorado River Indian Reservation.
“Irrigating canals are essential to the prosperity of these Indians. Without water, there can be no production, no life; and all they ask of you is to give them a few agricultural implements to enable them to dig an irrigating canal by which their lands may be watered and their fields irrigated, so that they may enjoy the means of existence,” a delegate from the territory of Arizona said at the time.
Of course, just because the government understands the need doesn’t mean its leaders have felt responsible to meet it, say Native water right experts. “We have arrived at this existential threat because, after 200 years, there’s still no structural place for tribes to engage in the water policy conversation at a level that acknowledges their sovereignty and their self-determination,” says Daryl Vigil, co-director of Water & Tribes in the Colorado River Basin and water administrator for the Jicarilla Apache Nation, of the state of the Colorado River negotiations amid the Supreme Court case.
And without adequate water, tribal communities in the region have often been unable to develop their water resources to achieve food sovereignty. And, if NAPI—a profitable, efficient agricultural operation run by members of the largest tribe in the U.S.—is still owed water infrastructure according to a 60-year-old treaty, what confidence should the other 29 Colorado River Basin tribes have that their water needs will be met?
Congress approved the creation of Navajo Indian Irrigation project (NIIP), which made irrigating NAPI possible, in 1962 and completed San Juan-Chama project in 1973. But there has been minimal federal funding to develop irrigation infrastructure on the remaining tracts of NAPI land since 2011, according to Lionel Haskie, director of operations for the farm.
Unfortunately, NAPI’s story isn’t unique. “There are a lot of outstanding claims from [Native American] nations to water,” says Laura Bray, a research scientist at the University of Oklahoma. If anything, she adds, NAPI’s plight “is exemplary of the failure of the U.S. government to provide adequate water, something very basic for sustaining society.”
Vigil agrees. “In the Upper Colorado River basin, 40 percent of the tribal water rights have been unused because of their inability to participate in conservation programs and inability to develop water rights usually because of a lack of infrastructure funding,” he says.