Native Americans
Feds Want Justices to End Navajo Fight for Colorado River Water
States that rely on water from the over-tapped Colorado River want the U.S. Supreme Court to block a lawsuit from the Navajo Nation that could upend how water is shared in the Western U.S.
The tribe doesn't have enough water and says that the federal government is at fault. Roughly a third of residents on the vast Navajo Nation don't have running water in their homes.
More than 150 years ago, the U.S. government and the tribe signed treaties that promised the tribe a "permanent home" — a promise the Navajo Nation says includes a sufficient supply of water. The tribe says the government broke its promise to ensure the tribe has enough water and that people are suffering as a result.
The federal government disputes that claim. And states, such as Arizona, California and Nevada, argue that more water for the Navajo Nation would cut into already scarce supplies for cities, agriculture and business growth.
The high court will hold oral arguments Monday in a case with critical implications for how water from the drought-stricken Colorado River is shared and the extent of the U.S. government's obligations to Native American tribes.
A win for the Navajo Nation won't directly result in more water for the roughly 175,000 people who live on the largest reservation in the U.S. But it's a piece of what has been a multi-faceted approach over decades to obtain a basic need.
Tina Becenti, a mother of five, made two or three short trips a day to her mom's house or a public water spot to haul water back home, filling several five-gallon buckets and liter-sized pickle jars. They filled slowly, sapping hours from her day. Her sons would sometimes help lift the heavy containers into her Nissan SUV that she'd drive carefully back home to avoid spills.
"Every drop really matters," Becenti said.
That water had to be heated then poured into a tub to bathe her young twin girls. Becenti's mother had running water, so her three older children would sometimes go there to shower. After a couple of years, Becenti finally got a large tank installed by the nonprofit DigDeep so she could use her sink.
DigDeep, which filed a legal brief in support of the Navajo Nation's case, has worked to help tribal members gain access to water as larger water-rights claims are pressed.
Extending water lines to the sparsely populated sections of the 69,000-square-kilometer reservation that spans three states is difficult and costly. But tribal officials say additional water supplies would help ease the burden and create equity.
"You drive to Flagstaff, you drive to Albuquerque, you drive to Phoenix, there is water everywhere, everything is green, everything is watered up," said Rex Kontz, deputy general manager of the Navajo Tribal Utility Authority. "You don't see that on Navajo."
The tribe primarily relies on groundwater to serve homes and businesses.
For decades, the Navajo Nation has fought for access to surface water, including the Colorado River and its tributaries, that it can pipe to more remote locations for homes, businesses and government offices.
It's a legal fight that resonates with tribes across the U.S., said Dylan Hedden-Nicely, the director of the Native American Law Program at the University of Idaho and an attorney representing tribal organizations that filed a brief in support of the Navajo Nation.
The Navajo Nation has reached settlements for water from the San Juan River in New Mexico and Utah. Both of those settlements draw from the Colorado River's Upper Basin.
The tribe has yet to reach agreement with Arizona and the federal government for water rights from the Colorado River in the Lower Basin that includes the states of California, Arizona and Nevada. It also has sought water from a tributary, the Little Colorado River, another major legal dispute that's playing out separately.
In the U.S Supreme Court case, the Navajo Nation wants the U.S. Department of the Interior to account for the tribe's needs in Arizona and come up with a plan to meet those needs.
A federal appeals court ruled the Navajo Nation's lawsuit could move forward, overturning a decision from a lower court.
Attorneys for the Navajo Nation base their claims on two treaties the tribe and the U.S. signed in 1849 and 1868. The latter allowed Navajos to return to their ancestral homelands in the Four Corners region after being forcibly marched to a desolate tract in eastern New Mexico.
The Navajo Nation wants the Supreme Court to find that those treaties guaranteed them enough water to sustain their homeland. And the tribe wants a chance to make its case before a lower federal court.
The federal government says it has helped the tribe get water from the Colorado River's tributaries, but no treaty or law forces officials to address the tribe's general water needs. The Interior Department declined to comment on the pending case.
"We absolutely think they're entitled to water, but we don't think the lower Colorado River is the source," said Rita Maguire, the attorney representing states in the Lower Basin who oppose the tribe's claims.
If the Supreme Court sides with the Navajo Nation, other tribes might make similar demands, Maguire said.
Arizona, Nevada and California contend the Navajo Nation is making an end run around another Supreme Court case that divvied up water in the Colorado River's Lower Basin.
"The first question in front of the court now is: why is the lower court dealing with the issue at all?" said Grant Christensen, a federal Indian law expert and professor at Stetson University.
Even if the justices side with the Navajo Nation, the tribe wouldn't immediately get water. The case would go back to the U.S. District Court in Arizona, and rights to more water still could be years, if not, decades away. The Navajo Nation also could reach a settlement with Arizona and the federal government for rights to water from the Colorado River and funding to deliver it to tribal communities.
Tribal water rights often are tied to the date a reservation was established, which would give the Navajo Nation one of the highest priority rights to Colorado River water and could force conservation on others, said Hedden-Nicely of the University of Idaho.
Given the likelihood of a long road ahead, Kontz of the Navajo Tribal Utility Authority says many older Navajo won't live to see running water in their homes.
Becenti, the 42-year-old mother of five, remembers shedding tears of joy when running water finally was installed in her house and her family could use a flushable indoor toilet.
It was a relief to "go to the facility without having to worry about bugs, lizards, snakes," she said.
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Native groups: Exit polls on Native voter preferences were flawed
In the days following the November 5 election, media outlets widely cited NBC exit polls indicating that 65% of Native American voters cast their ballots for Donald Trump.
While Native American advocacy groups acknowledge a trend of Native voters shifting toward the political right, they argued that the polling in this case was flawed and did not accurately represent their demographic.
NBC did not conduct the polling itself. It is one of four major news networks in the National Election Pool, or NEP, which relies on marketing research company Edison Research to question voters as they leave the polls.
Edison conducted phone, email and text message surveys of absentee and early voters in Georgia, North Carolina, Nevada and Ohio before Election Day and polled exiting voters at more than 300 polling stations across the U.S.
Once polling stations shut down on election night, Edison forwarded the voting data to NEP members so that they could analyze answers and project the winners.
NBC was the first to report exit polling data that included Native Americans. ABC News lumped Native Americans into the "all other races" category, as did CBS News and CNN.
The 65% figure prompted skepticism and confusion among some Native American observers. Native News Online, working with Northwestern University's Medill School of Journalism and national survey firm Qualtrics, surveyed 865 Native voters and found that 51% of Native voters voted for Donald Trump.
In contrast, 60% of the nearly 5,000 Native Americans who participated in Illuminative's Indigenous Futures Survey in 2020 identified as liberal, and 51% said they were Democrats.
A closer look at the numbers
Stephanie Fryberg (Tulalip), who leads Northwestern University's Research for Indigenous Social Action and Equity collaborative, was puzzled by the NBC calculation.
In a November 8 editorial in Native News Online, she said that the Native voter sample size was too small and couldn't accurately reflect Native voter preferences nationwide. She pointed out that 80% of respondents were from urban and suburban areas, while less than 20% came from rural areas.
In a separate editorial on November 18, Native News Online editor Levi Rickert questioned whether the respondents were legitimate members of federally recognized tribes.
“Perhaps the most challenging aspect of research and data collection among Native Americans is self-identification,” he wrote. “For various reasons, many people claim Native American ancestry. Among Native Americans, a common joke is that the largest 'tribe' in Indian Country is the 'Wannabe' tribe.”
VOA reached out to Fryberg to ask how she arrived at the numbers.
"We wanted to better understand the sample of Native voters that major news organizations were using to draw broad conclusions about voting patterns in the 2024 election," she answered by email. "Reports from the NEP show that only about 1% of these respondents identified as Native American, equating to roughly 229 individuals … underscoring the urgent need for more comprehensive and inclusive sampling strategies that genuinely reflect Native voices in electoral data."
Edison Research Executive Vice President Rob Farbman agrees that the sample size was small, but he told VOA that it met the NEP's minimum criteria for reporting subgroups.
"This is a national survey meant to represent the country, but subgroups as small as Native Americans … are difficult to measure," he said. "It's certainly possible that our survey is underrepresenting people that live on reservations."
He also noted that results at the county level are still coming in.
"And the votes that we've been seeing so far are showing that Trump is doing way better among American Indians than last time,” Farbman said.
Allison Neswood, a staff attorney at the Native American Rights Fund, said that exit polls should be viewed "with a lot of skepticism," and that the Edison poll "should really be discarded."
"Real hard conclusions will take a little bit more time," she said. "We're going to have to get more granular data, below the county level, to the precinct level."
Land Back movement gains ground, but full tribal control still out of reach
Land Back is a global, Indigenous-led movement advocating for the return of stolen lands.
While Indigenous communities have long engaged in that fight, “Land Back” as a meme began to gain popularity in 2019.
It now describes a decentralized international movement that emphasizes treaty rights, tribal sovereignty, climate justice and cultural revival.
“Land Back is like a prism with many facets to it,” said Alvin Warren, a former lieutenant governor of the Santa Clara Pueblo in New Mexico who has spent decades advocating for the restoration and protection of Indigenous lands.
“For me, within the paradigm of the United States legal system and land tenure system, it absolutely means the restoration of full title to Indigenous people of a particular piece of land that is part of their original homeland.”
And it doesn’t stop with the transfer of legal title.
“It’s about reviving the land-based aspects of our ways of life,” he said. “It could be agriculture, it could be subsistence hunting, it could be gathering things. It is about reuniting, reconnecting us with our homeland, about undoing the many layers of separation and disconnection from our homelands that has been the goal of colonization in this country and in other parts of the world.”
Nick Tilsen, an Oglala Lakota from the Pine Ridge Reservation in South Dakota, gained national attention in July 2020 for blockading the road to Mount Rushmore ahead of a visit by then-President Donald Trump.
Shortly afterward, the NDN Collective activist launched a #LandBack campaign for “the reclamation of everything stolen from the original peoples.”
“When they [the federal government] took the land, they took everything from our people,” Tilsen said. “They took our governance structures. They took our culture. They took our language. They tried to destroy the familial structure of our people, our ability to make decisions over our food systems and our education systems.”
Tilsen believes the U.S. government should return all public lands, including the Black Hills, which the 1868 Fort Laramie Treaty designated for the “absolute and undisturbed use and occupation” of Sioux Bands, today known as the Oceti Sakowin (Seven Council Fires).
That treaty was nullified without the tribe’s consent in the Indian Appropriations Bill of 1876 after a government and scientific expedition confirmed the presence of gold in the hills.
Is getting that land back a realistic goal?
James Swan, a member of the Cheyenne River Sioux tribe in South Dakota, doesn’t think so.
“It’s a pipe dream,” the founder of the grassroots Indigenous rights group United Urban Warrior Society, said. “But let’s say the U.S. government does return the Black Hills. Then what?”
Swan points out that tribes are not truly independent.
“They're part of the U.S. government,” he said. “A tribal chairman might be elected by the tribe, but he can't do anything without the tribal superintendent’s permission, and the superintendent works for the Bureau of Indian Affairs.”
Fragmented land ownership
In 1887, the government allotted some treaty lands to Native American heads of household. The remaining land, over 36 million hectares, was sold to settlers or granted to newly formed states to generate funds to support public institutions such as schools, jails or hospitals. States were allowed to sell off some of their trust land “for no less than ten dollars an acre.”
Grist and High Country News recently reported that states today hold more than 809,000 hectares of surface and subsurface land on Indian reservations.
Federal oversight
The U.S. government legally owns 21 million hectares of reservation land that it holds in trust for the benefit of tribes and their members.
Federal rules limit what tribes can do with that trust land — they can’t sell, lease or transfer it without Interior Department approval and must follow strict environmental rules for many projects.
Within that trust land are restricted-fee lands that are owned by individual Native Americans or tribes but cannot be sold or transferred without federal approval and are exempt from state or local land-use regulations.
There are also fee-simple lands within those reservations that are owned outright by individuals or tribes.
“The fee-simple owner is the absolute total owner,” said Robert Miller, a law professor at Arizona State University and an expert in federal Indian law. “You have all the rights of ownership. Leave it to whoever you want. Sell it to whoever you want for a dollar or a million dollars.”
Previously, tribes were advised to purchase reservation land under a fee-simple title.
“But the Supreme Court ruled in 1992 and 1998 that if a tribe holds land under [a] fee-simple title, the state can impose annual taxes on it,” Miller said. “This has led tribes to request that the Interior Department take their fee-simple land into trust to avoid state interference.”
Pathways to land back
In December 2012, the Interior Department launched the Land Buy-Back Program, which purchased and restored to tribal trust more than 1.2 million hectares of land in 15 states over 10 years.
“The Land Buy-Back Program’s progress puts the power back in the hands of tribal communities to determine how their lands are used — from conservation to economic development projects,” Interior Secretary Deb Haaland said ahead of the 2023 White House Tribal Nations Summit in Washington.
But some Native Americans are skeptical about the program.
“It is not about returning lost lands and putting them into trust for Tribes,” Todd Hall (Hidatsa) wrote in Buffalo’s Fire, an independent news platform run by the Indigenous Media Freedom Alliance. “It is about dispossessing Individual Indians of their landownership rights and converting those rights to the collective ownership of the Tribal governments which were enacted by the Indian Reorganization Act of 1934.”
Today, tribes across the U.S. continue to buy fractional interests in trust or restricted land from willing sellers, often with help from conservancy groups and private landowners.
In September, the Western Rivers Conservancy transferred a 188-hectare former private cattle ranch to the Graton Rancheria in California for “permanent conservation and stewardship.”
Individuals also make private donations of land. In October 2018, Iowa citizen Rich Snyder voluntarily signed over land he owned in southern Colorado to the Ute Tribe.
In June, California announced it would return 1,133 hectares of ancestral land to the Shasta Indian Nation. Montana is currently considering the return of 11,800 hectares of trust land to the Confederated Salish and Kootenai Tribes on the Flathead Reservation in exchange for federal public lands outside of the reservation.
A University of Montana study in 2023 identified 44 laws placing federal public lands into tribal trust. Many, however, upheld existing rights such as access, grazing, mining or water use. Others stipulate that the land remain “forever wild” or be used only for “traditional purposes” such as hunting or holding ceremonies.
There are also legal routes to getting land back, especially with the U.S. Supreme Court establishing a key precedent in the landmark McGirt v. Oklahoma case, which reaffirmed that a large area of eastern Oklahoma still belongs to the Muscogee (Creek) Nation.
“I predict there will be 30 to 50 years of litigation over every little issue if the state, feds and tribes don't cooperate,” Miller said.
Wisconsin agency issues permits for Enbridge Line 5 reroute around reservation
Enbridge's contentious plan to reroute an aging pipeline around a northern Wisconsin tribal reservation moved closer to reality Thursday after the company won its first permits from state regulators.
Wisconsin Department of Natural Resources officials announced they have issued construction permits for the Line 5 reroute around the Bad River Band of Lake Superior Chippewa's reservation. The energy company still needs discharge permits from the DNR and the U.S. Army Corps of Engineers.
The project has generated fierce opposition. The tribe wants the pipeline off its land, but tribal members and environmentalists maintain rerouting construction will damage the region's watershed and perpetuate the use of fossil fuels.
Permits issued with conditions
The DNR issued the construction permits with more than 200 conditions attached. The company must complete the project by November 14, 2027, hire DNR-approved environmental monitors and allow DNR employees to access the site during reasonable hours.
The company also must notify the agency within 24 hours of any permit violations or hazardous material spills affecting wetlands or waterways; can't discharge any drilling mud into wetlands, waterways or sensitive areas; keep spill response equipment at workspace entry and exit points; and monitor for the introduction and spread in invasive plant species.
Enbridge officials issued a statement praising the approval, calling it a "major step" toward construction that will keep reliable energy flowing to Wisconsin and the Great Lakes region.
Bad River tribal officials warned in their own statement Thursday that the project calls for blasting, drilling and digging trenches that would devastate area wetlands and streams and endanger the tribe's wild rice beds. The tribe noted that investigations identified water quality violations and three aquifer breaches related to the Line 3 pipeline's construction in northern Minnesota.
"I'm angry that the DNR has signed off on a half-baked plan that spells disaster for our homeland and our way of life," Bad River Chairman Robert Blanchard said in the statement. "We will continue sounding the alarm to prevent yet another Enbridge pipeline from endangering our watershed."
Tribe sues in 2019
Line 5 transports up to 23 million gallons (about 87 million liters) of oil and natural gas daily from Superior, Wisconsin, through Michigan to Sarnia, Ontario. About 19 kilometers (12 miles) of the pipeline run across the Bad River reservation.
The tribe sued Enbridge in 2019 to force the company to remove the pipeline from the reservation, arguing that the 71-year-old line is prone to a catastrophic spill and that land easements allowing Enbridge to operate on the reservation expired in 2013.
Enbridge has proposed a 66-kilometer (41-mile) reroute around the reservation's southern border.
The company has only about two years to complete the project. U.S. District Judge William Conley last year ordered Enbridge to shut down the portion of pipeline crossing the reservation within three years and pay the tribe more than $5 million for trespassing. An Enbridge appeal is pending in a federal appellate court in Chicago.
Michigan's Democratic attorney general, Dana Nessel, filed a lawsuit in 2019 seeking to shut down twin portions of Line 5 that run beneath the Straits of Mackinac, the narrow waterways that connect Lake Michigan and Lake Huron. Nessel argued that anchor strikes could rupture the line, resulting in a devastating spill. That lawsuit is still pending in a federal appellate court.
Michigan regulators in December approved the company's $500 million plan to encase the portion of the pipeline beneath the straits in a tunnel to mitigate risk. The plan is awaiting approval from the U.S. Army Corps of Engineers.
New Mexico helps Indigenous people search for missing family members
The U.S. Department of the Interior says American Indian and Alaska Native people are at a disproportionate risk of going missing, experiencing violence or being murdered. In the Southwest state of New Mexico, some Indigenous families are using a new grant to help expand their search for justice. Gustavo Martinez Contreras has our story.
Native Americans share mixed reactions to Trump win
In 2020, a record-setting six Native American candidates secured seats in the U.S. House of Representatives. This year, nine Native candidates ran for Congress, including four incumbents.
Confirmed winners
Representative Josh Brecheen, a Choctaw Republican representing Oklahoma's 2nd District, retained his seat, securing 74% of the vote. He thanked his supporters afterward, promising "to continue our work to secure our borders, rein in deficit spending and put a stop to our currency devaluation driving inflation."
Republican incumbent Representative Tom Cole, Chickasaw, was reelected to serve Oklahoma's 4th District for an 11th term.
Kansas Democrat Representative Sharice Davids, a Ho-Chunk citizen, retained the House seat she won in 2018.
"We are going to keep up our fight. We are absolutely going to keep up our fight," Davids told supporters. "To do things like expand Medicaid, making sure that we have good public schools, making sure we're funding public education including special ed, making sure we have a Kansas that actually works for everyone."
Incumbent Representative Mary Peltola (Yup'ik), a Democrat, has represented the Alaska district at large since 2022. The race has not yet been called, but as of Friday evening, she was behind her Republican opponent. Alaska uses ranked-choice voting, by which voters rank candidates in order of preference. Election officials are still waiting for incoming ballots that have yet to be counted and hope to certify results by the end of November.
Results are still pending on whether former Navajo Nation President Jonathan Nez will win his bid to represent Arizona's 2nd District in the House.
"We're still waiting for some votes to come in, especially in the counties that are more highly Democratic, so it will be interesting to see how those votes look," Nez told local news outlet InMaricopa.
How Natives voted
As VOA previously reported, experts indicate that Native voters are not strictly partisan; instead, they prioritize issues that best address tribal needs. While they have traditionally leaned Democratic, recent statistics reveal a shift of the Native vote toward the right.
The exact number of Native Americans who voted on November 5 remains unknown. This year saw expanded efforts by organizers to mobilize Native voters, especially in swing states such as Arizona and New Mexico. However, barriers to voting persist for many Native communities, including limited access to polling locations and mail services on reservations, which can make casting ballots challenging.
"Indian people are microcosms of society," Aaron Payment, former chairperson of the Sault Ste. Marie Tribe of Chippewa in Michigan, commented on the Native America Calling podcast Wednesday. "A lot of Indian people live in rural areas … so people voted based on what they heard."
He cited the impact of Christian missionaries, as well as the pro-life movement and the National Rifle Association.
Supporters of President-elect Donald Trump in Indian Country include Myron Lizer, former vice president of the Navajo Nation.
"Our people have been voting Democrat for over five decades and nothing's changed," he told the Navajo Times in late October.
Cherokee citizen Senator Markwayne Mullin and Representative Cole, both of Oklahoma, also backed Trump and stand to play key roles in the new administration.
Project 2025
The conservative Heritage Foundation in 2023 released Project 2025, a mandate for a future Republican administration. It proposes some substantial changes that directly affect tribes.
"His Project 2025 plans will centralize power in the executive office, an extreme threat to Tribal-federal relations and our rights as sovereign nations to make decisions about policies that impact our lands, resources, and people," Judith LeBlanc (Caddo), director of the Native Organizers Alliance, wrote for Native News Online Thursday.
The plan proposes to reverse Biden/Harris climate change policies and prioritize coal, oil, gas and mineral mining.
"Project 2025 specifically calls for expanding the Willow Project, drilling in Alaska’s Arctic National Wildlife Refuge, mining in Minnesota’s Boundary Waters, and shrinking Bears Ears National Monument," said Gussie Lord, managing attorney for Earthjustice’s Tribal Partnerships Program.
"Historically, these kinds of activities have resulted in negative impacts to tribal resources, such as serious long-term pollution and destruction of sacred sites and cultural resources. The tribes we work with at Earthjustice are fighting to preserve natural areas so they can continue to be used," Lord said.
While unwelcome news for some tribes, the plan could be good news for others.
"There are some tribes, I think energy [producing] tribes, that are probably going to be pleased with the outcome because they didn't quite jump on board on the clean energy [agenda]," Payment noted during the Native America Calling discussion.
Trump has vowed to launch unprecedented deportation operations and continue work on the southern border wall. The Tohono O'odham tribe, whose members straddle the U.S.-Mexico border, have complained that wall construction damaged cultural sites and restricted free movement across the border.
The Heritage plan calls for restructuring or abolishing some federal departments. It would eliminate the Education Department and shift its Indian education program to the Bureau of Indian Affairs (BIA). It would also eliminate the Head Start child care programs that currently serve tens of thousands of Native American children.
Project 2025 does not explicitly mention moving the BIA to the State Department, an idea that was reportedly floated during Trump's first term.
Levi Rickert (Prairie Band Potawatomi Nation), publisher and editor of Native News Online, advises caution.
"Given the complexities of issues impacting tribal nations, more research and at least a year-long consultation should be conducted with tribal leaders and only after an agreement has been reached should such a drastic change take place," he told VOA via email. "Ideally, a separate department or federal agency called Indian Affairs should be created so that tribal nations can be afforded the due respect they deserve."
But Project 25 does propose restructuring the Interior Department (DOI); possible contenders to head DOI include Doug Burgum, governor of oil-rich North Dakota.
Looking forward
Tribal leaders are urging citizens to set aside differences and focus on the work ahead. After all, they've endured much over the centuries.
"Now is the time to come together as a Tribe and support each other and look out for one another as has been our way for generations," Jaison Elkins, chairman of the Muckleshoot tribe in Washington state, posted on the tribe's website. "There will be opportunities and obstacles in the upcoming months, as there always are, but together we can handle anything."