The word ‘crisis’ is hardly an exaggeration when you look at the state of climate and drought in the Southwest. It’s even less of one, when you’re evaluating water supply in New Mexico. Crisis is, unfortunately, the most accurate possible descriptor when you’re looking at these situations on the Navajo Nation.  

“For the vast majority of us, running water is something we take for granted. While in one way it is great that we don’t have to think about it, in another way, it prevents us from understanding what it must be like for individuals who don’t have this same access,” UNM Water Resources’ Southwest Environmental Finance Center Director Heather Himmelberger said.  

For decades, communities in the Navajo Nation have battled for clean water, or simply basic water infrastructure. This need has grown exponentially in recent years, and sadly, will not be alleviated any time soon, due to a recent U.S. Supreme Court decision, in Arizona v. Navajo Nation.  

“With a 5-4 decision, the Supreme Court held that the 1868 Navajo Treaty did not include an affirmative duty for the federal government to determine the Navajo Nation’s water needs and devise a plan to secure the necessary water," UNM School of Law Assistant Professor Nadine Padilla said.

Nadine Padilla

That means, the Court said, federal agencies are allowed to turn their backs on the needs of the Navajo Nation when it comes to assessing their water needs and the Colorado River. 

“I believe the ruling will make it harder to address these issues. You can’t provide water to people if the water isn’t there. The reservation has limited water resources and climate change impacts are only exacerbating that,” Himmelberger said. 

Padilla, a member of the Navajo Nation and Isleta and Laguna Pueblos, explained that the Court should have interpreted the 1868 Treaty as the Navajo tribe would have understood the Treaty back when they signed it in 1868. But without utilizing the canons of construction doctrine underlying Indian law, the Court said there was no explicit request for assessing water needs in the treaty, therefore, the federal government was not required to assess the Nation’s water needs. 

This decision is very concerning because it ignores a foundational principle of Indian law, which is that treaties should be interpreted as tribes would have understood the agreement and that treaties should be interpreted in favor of tribes,” Padilla said. 

A closer, less narrow look, Padilla said, would reveal to the Court that the treaty writers were actually looking ahead to its current predicament. 

“The Navajo Nation did a great job of explaining the historical context during the time the treaty was entered into, which helped show how the tribe may have understood the treaty terms, including the desire for water for agricultural needs,” Padilla said. 

“This case sheds light on how the current Supreme Court might interpret tribal treaty rights going forward. The Court took a very narrow view of the trust responsibility and what it entails." – UNM School of Law Assistant Professor Nadine Padilla

On top of years of underinvestment, the Navajo Nation has also faced the negative side of U.S. endeavors. Uranium mining during the Cold War alone contaminated dozens of wells.  

“Far too many families have to haul water every day for household use and their livestock. Especially now, in light of increasing drought conditions, having access to clean, potable water is a necessity and public health issue,” Padilla said. 

An estimated 15% of families on the Navajo Nation still do not have piped, safe drinking water. 30% do not have running water. When that’s the case, community members must travel miles to a possibly safe well, to supply for their families and livestock. 

Heather Himmelberger

“If you had to drive somewhere with a container in your vehicle to go fill it up with water and bring home to use, instead of fading into the background, water would become a prime consideration of your day,” Himmelberger said. 

It’s an obvious health issue, long term as well. One evaluation puts the average American water consumption between 80 and 100 gallons per day, while Navajo Nation members use about seven

“The need to haul also greatly reduces the amount of water that individuals may use on a daily basis. It is really important that these individuals get the help they need to gain access to safe drinking water and adequate sanitation,” Himmelberger said. 

That’s where the lack of investment is especially noted. One estimate puts filling that need, a basic human right, would cost over $700 million dollars.  

This decision was a blow to the Navajo Nation and communities who, for far too long, have been without water. But I know the Navajo Nation is working hard to ensure the Nation’s water future,” Padilla said. 

That future starts with a return to the courtroom, and the Navajo Nation trying another route to receive their share of the Colorado River.  

“This case may have opened the door for the Navajo Nation to intervene in Colorado River rights litigation,” Padilla said. “The Navajo Nation had previously been shut out of those conversations, but now with the Supreme Court’s ruling, the Nation has a strong argument to be at the table to protect their rights to water in the lower Colorado River.” 

Although the Navajo Nation can not look to the federal government for a proper plan or course of action for fulfilling water rights, it can do so itself. With discussions between states over Colorado River shares escalating dramatically, it’s an important time to throw the Navajo Nation’s hat into the ring. 

 “It is necessary to bring other water resources to the Nation and its people and the Colorado River may have been one way to do that,” Himmelberger said. “Water is needed now but securing rights can take a very long time. It is a challenge that I hope we as a country are up for and can bring the help needed to the Navajo Nation.” 

While leaders duke it out nationally, Himmelberger encourages anyone interested in helping residents on the Navajo Nation take the first step. That begins with the annual ‘Imagine a Day Without Water’ challenge set for Oct. 19. 

“I think it is very important to consider what that would be like, so we are willing to help the Navajo Nation, as well as the many others across the country who lack access, and finally bring them the services that they need,” Himmelberger said. “It will take collective action to address these fundamental challenges.”