On March 20, the Supreme Court heard oral arguments for Arizona v. Navajo Nation, wherein the Navajo Nation argued that the United States government breached its legal responsibility to ensure access to water on the Navajo reservation. Frederick Liu, the U.S. attorney, made a surprising concession during his argument. No one called him on it.
The American Southwest is currently experiencing its worst drought in 1,200 years, hitting the Navajo Nation the hardest. Navajos use 8-10 gallons of water per day—about a tenth of the average American—and 30 percent of Navajos have no running water. This predicament is not just a practical and moral issue, according to the Navajos, but a legal one. In Winters v. United States (1908), the Supreme Court declared that tribes have a right to enough water to fulfill their reservation's current and future needs as laid out in their original treaties. While the Navajo Nation claims this requires the U.S. government to physically provide the reservation with water during this shortage, Liu insisted the U.S. government's only obligation is to not actively interfere with the Navajos' water supply.
But the United States has interfered with the Navajos' water access both obliquely and directly countless times throughout history, even to this day. If the Justices agree with Liu's theory of non-interference, the U.S. may win Arizona v. Navajo Nation, but set itself up for significant future liability.
Take uranium mining. From 1947 to 1965, the U.S. government was the sole purchaser of uranium mined on the Navajo reservation. That industry left 523 abandoned mines, with only one reportedly cleaned up. Consequently, 12.8 percent of unregulated water sources on the Navajo reservation exceed national drinking water standards for uranium. Furthermore, a typical uranium mine consumes 200-300 gallons of water per minute, further depleting the Navajo Nation's limited water supplies.
With coal mining, there's a similar history. In 1974, the Navajo-Hopi Land Settlement Act established the Black Mesa Coal Mine within disputed land between the Hopi Tribe and the Navajo Nation. Unbeknownst to the Hopi, the lawyer their tribe enlisted to fight the mine in court was a double agent, secretly working for the mine's owner, the Peabody Western Coal Company. This mine extracted 45 billion gallons of water from the Navajo Aquifer before closing in 2005, drying up several wells and springs.
The U.S. government has directly infringed on the Navajo Nation's water supply as well. In 2015, the Environmental Protection Agency caused the release of three million gallons of toxic wastewater from Colorado's Gold King Mine into the Animas River watershed. The yellow, contaminated water flowed 340 miles into the Navajo reservation, destroying farmers' crops. While the government paid settlements to Navajo Nation governments, the Department of Justice insisted individual farmers have no right to sue for damages.
The most disastrous example of interference, however, is the U.S. contribution to climate change. Peer-reviewed research in Science found human-caused climate change accounted for 47 percent of 2000-2018 drought severity, transforming a drought into a "historic megadrought." The United States is responsible for 25 percent of historical greenhouse gas emissions, enabled indirectly by government policies such as public land drilling and fossil fuel subsidies, and directly—the U.S. Department of Defense, for example, is the single largest institutional fossil fuel user in the world, contributing 1-2 percent of total U.S. emissions.
Yes, the United States had good reasons throughout history to incentivize the growth of the energy sector. Perhaps it did not understand the climate impact of fossil fuel combustion for some of that time. But however well-intentioned the reasons may be, its contributions to climate change did interfere with the Navajo Nation's water access.
But in Arizona v. Navajo Nation, the Navajo Nation's argument extends far beyond non-interference. The tribe insists it has a right to actual water under Winters, and therefore, the U.S. government must develop a plan to provide enough water to meet the needs of the reservation. The U.S. government claims it has zero obligation to meet this demand, and even if it did, a court would not have the power to enforce it. The Justices will need to deliberate the extent and enforceability of Winters rights before histories of mining, spills, and climate change would even come up in this conversation.
Based on the tone of the U.S. attorney in Arizona v. Navajo, anyone listening in on oral arguments might assume that the U.S. government has never interfered with the Navajo Nation's water, and its actions have nothing to do with the drought in the Southwest today. But even a cursory glance at the history of the U.S.' past interference debunks this argument. By the government's own interpretation of Winters, it is accountable for decades of damage and injustice.
Ethan Brown is a Writer and Commentator for Young Voices with a B.A. in Environmental Analysis & Policy from Boston University. He is the creator and host of The Sweaty Penguin, an award-winning comedy climate program presented by PBS/WNET's national climate initiative "Peril and Promise." Follow him on Twitter @ethanbrown5151.
The views expressed in this article are the writer's own.
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