Words By Jacqueline Keeler
Photographs by Elliot Ross
As the Supreme Court examines the Navajo Nation’s water rights to the Colorado River, The Frontline explores the issue through a personal historic lens.
When my mom describes growing up along the Little Colorado River in Cameron, Arizona, on the Navajo Nation, she describes the abundance of the plants they grew and the animals they raised: melons near Shadow Mountain and orchards of peaches and apricots along the Little Colorado. She’d help drive large herds of cattle from the river’s north side toward Gray Mountain to the south.
By the time I came along, my mom’s generation had moved away: first for college, then for jobs. Those still living in Cameron—my grandparents and my great aunts and uncles—were traditional Navajos who spoke only Diné bizaad, the Navajo language. They had never gone to boarding school where the ethos was infamously “kill the Indian in him and save the man,” so they possessed self-confidence about their culture and humor about how things had changed.
Now, the Supreme Court is considering whether the U.S. government has lived up to its treaty promises to provide a “forever home” for the Navajo people to live our traditional pastoral life. At issue is whether those promises in the 1868 treaty included access to water and whether the lack of it constitutes a breach of promise.
The Navajo have to stand before a judge to defend our access to water—a connection that predates the construction of U.S. legal systems.
Though I lived off the reservation, I spent a lot of time visiting my family in Arizona’s Painted Desert. Shicheii, my grandfather Elwood Canyon, grew a small garden of corn and melon and squash in the desert’s red soil. Slim and robust, an old cowboy, he trained his favorite horse, Simon, so well that Simon would let us grandkids duck between his legs and emerge safely on the other side. When I’d saddle up surrounded by my mom’s siblings and cousins, it felt like we were gods. I imagined what it was like when my dad’s Dakota and Lakota ancestors rode the Great Plains in large tiyospaye (family groups). Meanwhile, shimasani, my grandmother Jean Bighorse Canyon, had been a weaver, but arthritis made that difficult by the time I knew her. Her sisters-in-law, my great-aunts Nancy Horsen and Mary Tunney, still kept small herds of sheep that their grandchildren helped shepherd.
My family’s surname Canyon comes from the canyons surrounding the Little Colorado River as it reaches the Grand Canyon. The greater Colorado River and the smaller rivers that connect to it have long been a source of life for my people. Now, the Navajo have to stand before a judge to defend our access to water—a connection that predates the construction of U.S. legal systems. This legacy goes back generations, but it continues today through me and my family.
On Monday, the Supreme Court heard the consolidated cases Arizona v. Navajo Nation and Department of the Interior v. Navajo Nation—the result of decades of efforts by the Navajo Nation to get the federal government to address the inadequate water resources on the reservation where nearly one in three residents lack access to running water. And the tribe is citing its treaty with the U.S. to push its claims to water in a parched Southwest.
It was strange to hear an exchange between Justice Sonia Sotomayor and Assistant to the Justice Department’s Solicitor General Frederick Liu on damming the Little Colorado River before it enters the Navajo Nation. Sotomayor pointed out that this would constitute a breach of contract under the treaty. Liu insisted Navajo people could just use groundwater to maintain their herds and farmlands, instead. This, after decades of groundwater depletion for coal slurries and contamination from uranium mining.
“The treaty says [the reservation] will be the permanent home of the Navajo,” said Robert Miller, a law professor at Arizona State University. “The tribe is very carefully not asking for money damages. There is no statute or law they can point to where the government will have to give water to the Navajos. The tricky part is to have to take water from others. The Navajo Nation is, in reality, asking for some Colorado River water.”
“The Navajo Nation is, in reality, asking for some Colorado River water.”
Even though my family didn’t live along the Colorado River year-round, the land, the ranch, and our elders still there became a core part of who we are. The relationship with the river was something that we carried with us everywhere.
When my cheii visited us in our Washington suburbs, he insisted we stop and pray at the river we crossed every day to go to school or work. So we stood with him by the shore of the Yakima River as he offered it to tádídíín, corn pollen, and asked the river’s permission to cross and thanked it. As a kid, I felt self-conscious. Though I was in awe of my grandfather and everything he represented, I later asked my mom why he had to bless the river when it wasn’t part of the Navajo Nation. She told me, “That river we cross every day, your grandfather had to thank it for taking care of us.”
We rarely think of rivers that way: as taking care of us. The tens of millions who depend on the Colorado River (and its hydropower dams) for water and electricity are already realizing this as the river shrinks after two decades of drought.
Now, the federal government is demanding that the states (Colorado, Utah, Arizona, New Mexico, Nevada, Wyoming, and California) that equally share the Colorado River’s water through a 1922 agreement called the Colorado River Compact present a plan to lower their water use. So far, the seven states have failed to reach a consensus, pushing the government to likely announce cuts.
Amid this backdrop, the Navajo Nation is arguing that its people’s water needs be factored in, too. Water runs through all lifeways—from raising sheep and cattle to growing the Navajo population on the rez. Out of the nearly 400,000 tribal citizens, over 170,000 live on the reservation. Most others have left to find work, housing, and running water.
This lack of infrastructure investment contrasts starkly with the $4 billion in federal dollars expended to construct in 1973 the bipartisan-supported Central Arizona Project, a massive water delivery system that took 20 years to build. Its 336 miles of canals and pumps make up the most expensive project the Bureau of Reclamation has ever funded. This massive investment in Arizona’s future made it possible for Phoenix and Tucson to grow into the cities they are today, creating $2 trillion in economic growth for Arizona.
With access to the Colorado River water delivery system came the development of coal power plants. There were two: the Four Corners Power Plant, located on land leased from the Navajo Nation, and the Mohave Generating Station, which relied on drinking water to make the coal from Navajo strip-mined coal fields in Black Mesa into a slurry.
In 1963, astronauts could see the plume from the Four Corners’ plant from space. Another human-built object visible was the Great Wall of China. The Mohave plant was shut down in 2005, and the Four Corners plant is scheduled to be decommissioned by the end of 2031. The legacy of their impacts remains: methane clouds created by the oil and gas industry still blanket parts of the Navajo Nation, creating hazardous conditions for Navajo people living in the region.
These plants provided the electricity that not only made Las Vegas glow with neon lights and casinos but allowed the Sun Belt to blossom, attracting residents from Rust Belt cities where industrial and manufacturing jobs were decreasing. They found an escape from the snow and could enjoy not only the sunshine and warm weather but also water for their backyard swimming pools, golf courses, and air conditioning.
Little of this infrastructure development reached the citizens of the Navajo Nation. Until the first decade of the 21st century, my grandparents did not have running water. My family in Cameron still doesn’t have regular access to electricity. They use solar power, gas propane, or chop firewood to run their appliances and heat their homes. None have air conditioning.
As a child, I could stand next to my grandparents’ house overlooking the Little Colorado River canyon and hear the hum of the giant transmission lines that would send power anywhere but our lands. One stands about 100 yards from their home. Sometimes, I could hear people’s voices in that empty desert. Those voices reminded me of the sand paintings of yéʼii, Holy People my aunts painted in the sand to sell to tourists. The colors were from the landscape around us: the Painted Desert.
For the Diné people, the Long Walk is the defining and painful origin of our modern identity. In 1864, several thousands of Navajo people were forced on the Long Walk, Hwéeldi, an attempted ethnic cleansing of our people. From the Dinetah, our homeland between the four sacred mountains and rivers, to Bosque Redondo (presently Fort Sumner) in New Mexico, hundreds died as they trekked over 300 miles.
U.S. soldiers shot Navajos who could not keep up—even pregnant women who had to stop to give birth. Many more died—nearly 2,000—when they got to the concentration camp. Our people were forced to live in little more than holes in the ground and were conscripted to build houses for the American soldiers. Crops would not grow, and the animals we brought died.
The U.S. government spent $1.5 million a year to keep us there. After four years, the Americans finally decided it would be cheaper to let us return home and be self-sustaining again. My great-aunt Tiana recounts how many prayers were offered in the concentration camp for our people—prayers that they would return to their lands. And they credit these prayers for bringing about the Americans’ change of heart.
The 1868 Treaty of Bosque Redondo—the one being argued before the Supreme Court—finally allowed our ancestors to return to the Dinétah. In her book, my great-aunt Tiana wrote how the people were collapsing from joy as they saw the first sacred mountain, Mount Taylor, on their return home. One grandmother exclaimed, “Mountain! We are home!” and collapsed. She died two days later. The chiefs counseled the people to take it slowly and prepare their elders for the sight of the mountain so that we would not lose anyone else.
I can’t even bear to think what we would be like today if we had been forced elsewhere. It’s hard to imagine being Diné and not being in the lands the Holy People made for us. Fortunately, our prayers were heard. Today, our reservation constitutes nearly all of the Diné Bikeyah.
“The history of the negotiation proceedings leading to the 1868 treaty and the text of the treaty show that both sides agreed that the future of the Navajo Nation depended on being able to successfully pursue farming and grazing and that the treaty was meant to secure that future,” wrote Daniel McCool, a family friend and professor emeritus of political science at the University of Utah, in an amicus brief submitted in support of the Navajo Nation’s position to the Ninth Circuit Court of Appeals.
My great-aunt Tiana recounts how many prayers were offered in the concentration camp for our people—prayers that they would return to their lands.
The Navajo Nation won that appeal. That’s why their case moved up to the Supreme Court. Treaties are not only the “supreme law of the land,” as the Constitution puts it. They are also international law as only sovereign nations enter into them.
“Given the high desert location reserved for the Navajo Nation by the 1868 treaty and by subsequent additions to the Navajo Nation’s land base, access to adequate water to support the Navajo Nation is an inseparable part of the trust responsibility built into the federal government’s dealings with the Navajo Nation,” McCool’s brief states.
However, the United States’ implied “trust” relationship with tribal nations may be a less compelling argument to the court than its failure to live up to treaties, which is contract law, said Miller of Arizona State. This is especially true given the senior water rights the Navajo Nation holds in the Little Colorado under the Winters Doctrine, a 1908 Supreme Court opinion that serves as the foundation for tribal water rights in the U.S. These rights apply to the tributaries of the Colorado River—including the Little Colorado River, where my family ranches.
During the Long Walk, my great-grandfather Gus Bighorse saw fields in Many Farms, Arizona, filled with Navajo farmers’ blood. Though he had desired to farm there as a kid, he could never return after that. Instead, he settled in Western Navajo. He couldn’t go back to Eastern Navajo. That’s why my mom’s family resides in Cameron along the Little Colorado today.
My mom’s cousin Mae Franklin, as she continues to make the desert bloom today, maintains the earthen dams that help bring the precious water she needs to water her salad greens and squash and beans. She tells me these fields and hoop houses represent our community’s first straw in the Little Colorado in a long time. She hopes more of us will come home and put more straws in.
April 12, 2023 9:26 am
The Navajo's tribal enrollment number of 332,000 previously included was outdated. It has been updated.