The Colorado River Basin is dying. Lake Mead is drying up. The aquifer that was tapped to end the period of extreme drought of the 1930s is running out. A second Dust Bowl is on the horizon.
The Supreme Court of the United States issued its decision in Arizona v. Navajo Nation last Thursday, condemning the Navajo people to surrender their treaty rights to water from the Colorado River and the other tributaries, streams, and sources that feed the Navajo reservation. This follows directly on the heels of the court’s Haaland decision which, as the Clarion predicted, marked not a high-water mark in the recognition of Indigenous sovereignty, but rather the beginning of a long-planned onslaught against the Indigenous peoples within the prison-house of the U.S. Empire.
Water is a precious commodity in the American West. Future desertification of the whole growing region is almost inevitable. The Navajo nation has been battling state governments for decades over the allocation of water in the region and the federal government for at least as long, looking for recognition of the rights that were promised by treaty.
In its duplicitous and cowardly Navajo Nation decision, the U.S. Supreme Court recast the issue; the treaty, they whine, only guarantees the Navajo Nation the right to water that flows into the reservation. If anyone were to redirect the water away from the reservation, then that’s just too bad. That water, they say, between the lines, has more use elsewhere — watering cash crops. As long as the $5 billion worth of agricultural industry is kept intact, so what if the Navajo people starve as a result?
The bulk of the opinion is actually an attack on the principle of the so-called “trust” that we discussed on Monday, the idea that the U.S. imperial state owes anything to the Indigenous peoples it has displaced, murdered, and betrayed. While Haaland made hay from the idea of the “trust relationship” in order to uphold Congress’s power to pass laws that govern Indigenous persons, Navajo Nation explicitly states that the trust relationship is non-existent. Justice Thomas dismisses the idea entirely in his concurrence. “[T]he idea of a generic trust relationship with all tribes — to say nothing of legally enforceable fiduciary duties — seems to lack a historical or constitutional basis.” Gorsuch and the three left-liberal justices alone — Sotomayor, Kagan, and Jackson — return to the treaty rights, to the sovereignty of the Indigenous peoples. But let us not forget that Sotomayor, Kagan, and Jackson also signed on to the main opinion of the court in Haaland, where the reactionary justices made it clear that the “period of treaty making” had ended and that the Indigenous peoples would be governed not from a sovereign to a sovereign but rather by the fiat of Congress, whose powers over them are “plenary,” an unassailable, hegemonic domination. Gorsuch clearly and plainly states the perfidy of the federal government:
The Navajo have tried it all. They have written federal officials. They have moved this Court to clarify the United States’ responsibilities when representing them. They have sought to intervene directly in water-related litigation. And when all of those efforts were rebuffed, they brought a claim seeking to compel the United States to make good on its treaty obligations by providing an accounting of what water rights it holds on their behalf. At each turn they have received the same answer: “Try again.” When this routine first began in earnest, Elvis was still making his rounds on The Ed Sullivan Show.
The Navajo reservation is the largest Indigenous reservation in the U.S. Empire. It encompasses over 17 million acres, and the tribe has enrolled over 300,000 members. The average non-Indigenous American citizen uses 82 gallons of water a day. The average Navajo person uses 7 gallons. In parts of the reservation, as much as 91% of the households lack access to water.
The court remains today what it has always been — the sword and shield of U.S. settler-capital. The decisions in Haaland and Navajo Nation could not appear more different on their surface, but if one looks beneath, it will become clear that they serve the same purpose: to grind the millstone of disenfranchisement and genocide.
