Water Rights on a Hot Planet

 

[Photo: Chaco Canyon in northeastern New Mexico, the site of a flourishing civilization c. 800-1250 C.E.]

The Supreme Court told the Navajos almost literally to pound sand in its June 22 decision in Arizona v. Navajo Nation, a case dealing with the ongoing struggle over water in the increasingly parched Southwest. The decision was 5–4 because a Trump-appointed justice, Neil Gorsuch, sided with the marginalized court liberals this time and, in fact, wrote quite an eloquent dissent to the majority opinion.

That majority took a look at the 1868 Treaty of Bosque Redondo between the United States and the Navajo Nation and did not see any explicit language there that compels the U.S. to provide Navajos the water they need. No matter that the tribe wasn’t asking for that. The court said the U.S. had no “affirmative duty”—surely a provocative choice of language these days—to do anything other than what is expressly stated in treaties, statutes, or regulations.

Gorsuch gave his fellow justices a history lesson that I will bet a large sum they either didn’t read or could care less. The 1868 treaty arose from a sorry, though familiar, history of genocidal destruction of Navajo life through forced resettlement into a desolate, virtually uninhabitable tract of land in eastern New Mexico. While the Navajo rebelled and eventually won the right to return to their ancestral territories in what became Arizona, it’s hard to argue (though the Supremes’ majority implies it) that they were in any condition to establish fair terms given that their choices were either to sign the treaty or slowly die off.

Gorsuch also points out that the Navajo lawsuit didn’t ask for concrete actions by the U.S. government to meet their water needs but merely a full accounting of what their water rights are, which has never been determined despite the tribe’s many formal requests dating back decades. The majority’s pearl-clutching that the Navajo might demand infrastructure improvements if the Court were to rule in their favor is ironic given how much wealth Washington has poured into the Hoover, Glen Canyon, and a dozen other dams to harness rivers for the benefit of burgeoning settler populations throughout Arizona, Nevada, Utah, and Colorado.

Gorsuch is an oddity on the ultra-conservative court with whose other members he shares a wide range of views. He sat on a western circuit and was known as a Native-friendly judge there, too. The fact that he has an enlightened view of sensitive environmental issues affecting the tribes is curious given the role his mother, Anne Gorsuch, played—as Ronald Reagan’s first director of the Environmental Protection Agency—in making that agency a bastion of corporate coziness and a flaccid defender of the selfsame environment.

Incidentally, Ms. Gorsuch was the boss of the notorious Rita Lavelle, whom Reagan appointed to head the Office of Toxic Waste, an accidentally appropriate post for her. I observed Lavelle close-up as a Washington reporter in 1981: she was the “lady who lunched” with every corporate lobbyist who asked her out. Lavelle turned out to be too corrupt even for the Reagan team and eventually got the boot. (She also was convicted ofperjury in “Sewergate” and did time.) But I digress.

Luckily, we are not responsible for our parents. Gorsuch’s sympathy with Indian tribes is a welcome relief from the ideological moonscape of the current court.

It would be easy for us to shake our liberal heads at the increasingly despicable court, its slapdash arguments, and its partisan jiggering of the law for predetermined ends. But when it comes to stealing water rights of the defenseless, the entire U.S. political establishment is still at it. Even the arguments marshaled in the 19th century—and quoted by Gorsuch—to justify the destruction of the Navajos have a familiar ring.

Here is Gorsuch waxing emphatic on the tactics used to compel the Navajo to leave their homes. What are the chances that study of this opinion would be allowed in a Florida classroom given how “divisive” it is?

[U.S. agent James Henry] Carleton picked the location himself: an area hundreds of miles from the Navajo’s homeland commonly called the Bosque Redondo. Warning signs flashed from the start. Officers tasked with surveying the site cautioned that it was “remote from viable forage” and that building material would have to come from a significant distance. Worse, they found that the water supply was meager and contained “much unhealthy mineral matter.” Carleton ignored these findings and charged ahead with his plan.

That left the not-so-small matter of securing the Navajo’s compliance. To that end, the federal government unleashed a “maelstrom of destruction” on the Tribe. Before all was said and done, “the Navajo had to be literally starved into surrender. Thousands of U. S. troops roamed the Navajo [Country] destroying everything the Navajo could use; every field, storehouse, and hut was burned.” The campaign was “brief, blunt, and, when combined with a particularly difficult winter,” effective. That period of violence led to “the Long Walk.” In truth, it was not one walk but many—over 53 separate incidents, according to some. In each case, federal officers rounded up tribal members, “herded [them] into columns,” and marched them hundreds of miles from their home. “Many died en route, some shot by the souldiers.” As one Navajo later recounted, people were killed “on the spot if they said they were tired or sick or if they stopped to help someone. Others fell victim to slavers with the full complicity of the U. S. officials.”

Details aside, the overall strategy is hardly a thing of the past. How many similar stories do we read of these days, from the Buddhist reactionaries chasing Muslim Rohingya out of their homes in Myanmar to the ongoing saga of Jewish supremacist settlers exploiting Palestinian lands (and water) for decades, destroying their crops, and attacking them with impunity?

It’s easy to lament past abuses, much harder to recognize current ones.