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Supreme Court to hear arguments on Navajo Nation water needs

Administration, states say treaty doesn't give tribe right to more water in drought-stricken West

Geneva Black, of the Navajo Nation, dumps out dirty water after doing dishes in July 2022 at her home on the Navajo Reservation in Cameron, Ariz.
Geneva Black, of the Navajo Nation, dumps out dirty water after doing dishes in July 2022 at her home on the Navajo Reservation in Cameron, Ariz. (RJ Sangosti/MediaNews Group/The Denver Post via Getty Images)

The Navajo Nation will argue Monday at the Supreme Court that the United States must meet the water needs of their reservation in Arizona, amid long-standing tensions about how to apportion the dwindling flow of the Colorado River.

In the first oral arguments of a two-week sitting of the high court, the Navajo will defend a ruling from the U.S. Court of Appeals for the 9th Circuit that kept alive their long-running legal effort to force the government to come up with a plan to provide enough water.

In court filings, the tribe contends that an 1868 treaty promised both land and water sufficient for the Navajos to return to a permanent home in their ancestral territory.

Many Navajo households live on a small fraction of the water most Americans use per day, the tribe states. More than 30 percent of the reservation lacks running water. And water hauled from miles away costs multiple times more.

“How did we get here, in this country, in the twenty-first century? Broken promises,” the tribe’s brief said. “The basic human rights of hundreds of thousands of Navajos, fellow U.S. citizens, hang in the balance.”

Express responsibility

But the Biden administration and several states argue that the treaty does not give the Navajo the right to more water in the drought-stricken West, which would likely have to come from the Colorado River.

The Biden administration in a brief argued that under Supreme Court precedent, the United States can only be brought into court by a tribe when it has “expressly accepted” a responsibility, such as passing a law or regulation.

“Here, the Navajo Nation has not identified any statute, treaty, or regulation that expressly establishes an affirmative trust duty to assess and address the Navajo Nation’s general water needs,” the administration’s brief said.

Arizona told the justices in a brief that the tribe’s suit is an end run around decades of agreements about water distribution from the Colorado River in a zero-sum game — more water for the Navajo means less for everyone else.

And Arizona and other states contend the dispute threatens to crack open 100 years of interstate negotiations, lawsuits, regulations and statutes over Colorado River water known as “The Law of the River,” where the federal government asserted water rights on behalf of some tribes, but not the Navajo.

Arizona argued that the United States had represented tribal claims to Colorado River water for years and had chosen not to pursue any water rights for the Navajo Nation from the river’s main flow.

And the state argued that only Congress could pass a law mandating the government take a step like providing the tribe with water rights. “Rather, Congress, and not the courts, wields the power to impose a duty of trust upon the United States to manage and protect tribal assets,” Arizona’s brief said.

The justices are expected to decide the case before the conclusion of the Supreme Court’s term at the end of June.

Long history

The Navajo Nation first filed a federal lawsuit in Arizona against the Department of the Interior in 2003, seeking a ruling establishing water rights for the reservation. The Navajo Reservation today spans more than 17 million acres within the Upper and Lower Basins of the Colorado River in Utah, Arizona, and New Mexico.

There were more than a decade of negotiations and then a series of court decisions about whether the tribe could pursue its claims. In 2021, a 9th Circuit panel ruled that the Navajo Nation should be allowed to proceed with its third amended complaint, which alleges a breach of trust against the United States.

The panel wrote the tribe’s claims were distinct from the broader dispute about water from the Colorado River. The Supreme Court has heard multiple disputes between states and the federal government over water in the Colorado River, stretching back to 1952.

Congress has mandated the creation of an interstate plan to govern apportionment of the river’s water since 1928. Over the course of years, Congress and the courts set up a structure where each state got certain amounts of water each year and the federal government would divvy up reductions in dry years.

Robin Craig, a law professor at the University of Southern California who specializes in water issues, said the Navajo “kind of got screwed” in those talks. The various agreements acknowledged that tribal water rights could exist, but Craig said without a law enacting them, tribes’ water rights exist “phantasmally” and with no way to turn on the faucet.

Craig said the 9th Circuit’s approach comes from a 1908 Supreme Court case that found tribes had some water rights where they were not explicitly granted.

Craig said the reality of the tribe’s situation in Arizona may play at the heartstrings of some justices and keep them from getting “too technical with the law in the face of this: The tribe needs water and there’s a legal path forward to getting them some water.”

The Navajo tribe has existing agreements with New Mexico and Utah – the latter ratified last year – giving the tribe access to water in those states. But most of the tribe’s reservation and population reside in Arizona.

Recent rulings

The Navajo told the Supreme Court in its brief that there are no “magic words” that require the U.S. to act on a treaty, and that the treaty itself should be enough.

And the tribe cited the Supreme Court’s own decision in a 2020 case, McGirt v. Oklahoma, which found that tribes retained much jurisdiction over federal crimes committed on their lands in Oklahoma.

But the court’s makeup has changed since that case, and the justices scaled back that decision the next year, in Oklahoma v. Castro-Huerta, which allowed the state to prosecute nontribal members who commit crimes against tribal members on reservations.

Derrick Beetso, director of the Indian Gaming and Tribal Self-Governance Programs at Arizona State University’s law school, said the Castro-Huerta case may be an “outlier” and the dynamics of the current case could be hard to predict.

Beetso, a former general counsel for the National Congress of American Indians, is co-counsel for an amicus brief filed by the Diné Hataałii Association Inc., a nonprofit organization founded by medicine men of the Navajo tribe.

He pointed out that the Supreme Court in that same term ruled in favor of tribes in two other cases. And the current Navajo Nation case could be more complicated because it stems from a treaty.

“They’re dealing with old treaties, and treaties are the supreme law of the land under the Constitution, and a number of the justices purport to be originalist,” Beetso said. “Some of those originalist ideals sometimes correspond nicely with treaty interpretation, and to the canons of treaty interpretation.”

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