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The Drum Haulers
What the 1868 Treaty Actually Said — and What Happened to It
The Treaty of Bosque Redondo, signed June 1, 1868, ended the Long Walk — the forced removal of the Diné people to a barren reservation at Bosque Redondo, New Mexico, where thousands died of starvation and disease. The treaty promised the Navajo people a permanent homeland in their ancestral territory — the land encompassing parts of present-day Arizona, New Mexico, and Utah.
The treaty did not explicitly mention water. It did not need to. The Winters Doctrine — established by the Supreme Court in 1908 — holds that when the federal government creates a reservation, it implicitly reserves enough water to make that reservation viable. The date of that reserved right is the date of the treaty. For the Navajo Nation: 1868. Fifty-four years before the Colorado River Compact. Senior to everything signed after it.
In practice, seniority has meant almost nothing. The 1922 Compact was negotiated without the Navajo Nation at the table. Without a seat. Without a line item. Without an allocation. Seven state delegations divided the river. The people with the oldest legal claim to its water were not consulted, not represented, and not allocated a single acre-foot.
The 2023 Supreme Court: Senior Rights Without Delivery
In June 2023, the Supreme Court ruled 5–4 in Arizona v. Navajo Nation that the federal government has no affirmative obligation to take action to secure Colorado River water for the Navajo Nation. The majority opinion, written by Justice Brett Kavanaugh, held that while the 1868 treaty reserved water rights, it did not require the government to affirmatively build infrastructure or negotiate delivery arrangements on the Nation's behalf.
Justice Neil Gorsuch — joined by Justices Sotomayor, Kagan, and Jackson — dissented. His dissent is the most direct statement of what the ruling meant in human terms:
Justice Gorsuch's dissent in Arizona v. Navajo Nation (599 U.S. ___, 2023) is a primary source document — written by a sitting Supreme Court Justice, on the record, permanent. It is worth reading in the context of everything else in this series.
The Navajo Nation argued that the 1868 treaty's promise of a permanent homeland — combined with the Winters Doctrine — obligated the federal government to identify and secure water to make that homeland livable. The majority said the treaty didn't go that far. Gorsuch disagreed:
"The Federal Government made promises to the Navajos. The promises weren't kept then. They haven't been kept now."
The practical result of the 5–4 ruling: the Navajo Nation has senior water rights under federal law. Those rights are legally recognized. The government has no obligation to actually deliver the water those rights represent. The rights exist on paper. The 55-gallon drums exist in practice.
What the ruling did not do: It did not eliminate the Nation's water rights. It did not prevent Congress from passing the Arizona settlement that would deliver those rights. It did not foreclose future litigation on different legal theories. It narrowed one specific legal pathway while leaving others open — including the settlement bill that has been sitting in Congress since 2024, unratified, unfunded, and undelivered.
What 72× Actually Means
The 72× cost multiplier — Navajo families without piped water paying up to 72 times more per gallon than the average American — is not an abstraction. It is the arithmetic of what happens when you must purchase water by the delivered gallon rather than receive it through municipal infrastructure priced for high-volume distribution.
Average American tap water costs roughly $0.004 per gallon — less than half a cent. Commercial water delivery for hauled supply in remote areas costs dramatically more — sometimes $0.30 or more per gallon when you factor in transportation, time, and fuel. At that ratio, a family of four using even 40 gallons per day is spending more than $4,000 per year on water — from income that, on the Navajo Nation, averages well below the national median.
During the COVID-19 pandemic, the cost became lethal in a specific way. Public health guidance everywhere was clear: wash your hands, frequently, with soap and water. The Navajo Nation — where 30–40% of homes had no running water — had one of the highest per-capita COVID-19 infection rates in the United States in spring 2020. The guidance was correct. The infrastructure to follow it didn't exist.
The Three-Way Comparison That Closes the Argument
The water machine this series documents is not a single mechanism. It is several mechanisms operating simultaneously — on the same resource, in the same era, producing radically different outcomes for different communities. To see it clearly, put three stories from this series side by side.
The same legal framework — prior appropriation, "first in time, first in right" — governs all three situations. Under that framework, the Navajo Nation's rights are the most senior of the three. The 1868 treaty predates every other claim in the column. The framework that is supposed to protect the oldest rights has delivered: under $1,000 per year in fees for a corporate extractor, $14 million in profit for a private equity firm that bought into the system, and 55-gallon drums for the people whose rights predate the entire apparatus.
The Northeastern Arizona Indian Water Rights Settlement Agreement — signed by Arizona Governor Katie Hobbs in November 2024, agreed to by the Navajo Nation, Hopi Tribe, and San Juan Southern Paiute Tribe, involving over 36 parties — is described as potentially the largest tribal water rights settlement in U.S. history.
It would quantify the Navajo Nation's Colorado River water rights. Fund the infrastructure to deliver them. Build pipelines, treatment plants, and storage. Allocate approximately 56,500 acre-feet annually across the three tribes. Ratify the 2000 inter-tribal treaty between the Navajo Nation and San Juan Southern Paiute Tribe — the first treaty between two Native American tribes in over 160 years — which has been awaiting Congressional ratification for 25 years.
The federal legislation — H.R. 2025 in the House, S. 953 in the Senate — was introduced in March 2025. As of February 2026, it remains in committee. No floor vote scheduled. The basin-wide post-2026 guideline negotiations — which missed their February 14 consensus deadline — have absorbed political oxygen that might have moved the settlement.
What is being delayed: Running water. For families who have been hauling it in 55-gallon drums for generations. Under legal rights that are 158 years old. Through an agreement that 36 parties have already signed. Waiting for Congress to schedule a vote.
The settlements are real. New Mexico resolved its Navajo water claims in 2009. Utah finalized its settlement in 2022 — securing 81,500 acre-feet annually plus over $210 million for infrastructure including pipelines, treatment plants, and storage. Construction is underway on multiple Utah projects as of early 2026, including the San Juan Lateral Water Treatment Plant.
The Navajo-Gallup Water Supply Project is real. Groundbreaking for the San Juan Lateral Water Treatment Plant occurred in 2025. Sublaterals to communities including Crownpoint are beginning in 2026. Partial delivery is expected by 2028. These are not hypothetical — they are construction projects in progress.
Westwater, Utah got running water in 2025. After 25–40 years of delays, 23 homes in one small community finally connected to piped water through tribal leadership, nonprofit partnerships, and sustained community effort. The story is small in scale but real in what it represents.
Solar-powered home systems have brought water access to over 2,000 people in some reservation areas. Nonprofit organizations including the Navajo Water Project continue expanding access. Progress is incremental, genuine, and insufficient at the scale of the need.
The full account: Progress is happening. It is real. It is dramatically slower than the 158-year legal seniority of the rights would suggest it should be. Both things are true simultaneously.
What Posts 1–3 Together Have Established
Three posts. Three mechanisms. One finding about who gets water in America.
Post 1 established the foundational physics problem: a 1922 Compact that allocated a river at more than twice its sustainable yield, creating the scarcity that makes water rights valuable and water access a matter of power rather than need.
Post 2 documented what the scarcity looks like when a corporation is the beneficiary: under $1,000 per year for 210 million gallons of public groundwater, 80,945 objections legally dismissed as irrelevant, nine reform bills killed, a donation to Flint cited as community investment.
Post 3 documents what the same scarcity looks like when the people with the oldest legal rights are the ones without water: 158-year-old treaty rights, 30–40% of homes without running water, 72× cost, a Supreme Court ruling that the federal government has no duty to deliver what it promised, a settlement agreement signed by 36 parties sitting unratified in committee.
The machine doesn't treat these outcomes as contradictions. They are the machine working as designed: allocating access by the intersection of legal position and institutional power. BlueTriton has both. Greenstone acquired both. The Navajo Nation has the legal position. The institutional power to convert it into running water has been delayed since 1868.
Post 4 documents the third Michigan water story — where the failure isn't corporate extraction or treaty delay, but a state government that switched water sources to save money, ignored the evidence of what it had done, and spent a year letting children drink lead while officials debated whether the data was real.
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