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Critical Native American Water Rights Cases Come Before the Supreme Court: Arizona v. Navajo Nation

Critical Native American Water Rights Cases Come Before the Supreme Court: Arizona v. Navajo Nation

The Navajo Nation Has the Equities on Its Side, However the U.S. Department of the Interior May Well Have the Law in Its Favor

Navajo Nation Reservation (credit: KNAU)

Today the U.S. Supreme Court hears oral arguments within the last natural resources cases on its docket this Term: Arizona v. Navajo Nation and U.S. Department of the Interior v. Navajo Nation.  These consolidated cases are consequential for several reasons: to find out the scope of the federal government’s trust obligations to Native American tribes; to determine whether the Navajo Nation must have access to enough water on its arid reservation to offer the Navajo people a viable economy and decent lifestyle; and to resolve whether already-overtaxed water supplies within the Colorado River Basin will ultimately must accommodate yet one more “straw within the river.”

The reservation of the Navajo Nation is–by far–the biggest in the USA, each by way of the reservation’s size and the variety of Native Americans living there.  Remarkably, nevertheless, and despite the indisputable fact that the federal government negotiated two vital nineteenth century treaties with the Navajo Nation, the U.S. government has never seen fit to expressly provide federal water rights to the Nation to make its expansive reservation fully habitable.

The results of that longstanding federal inaction has been dramatic and disastrous: In line with Native American water rights experts, members of the Navajo Nation living on their reservation endure major water shortages on  a scale unknown to most Americans.  On average, each member of the Navajo Nation must make do with 10 gallons of water per day–one tenth of the quantity most Americans devour for domestic use.  And there’s virtually no water available for the Nation to make the uses of their reservation contemplated of their longstanding treaties with the USA: to irrigate and cultivate their tribal lands for the advantage of the Navajo people.

In 2003, the Navajo Nation filed suit in federal court, claiming that the federal government had breached its trust obligations to the Nation by not granting it adequate water rights from the Colorado River system managed by the Department of the Interior.  The states of Arizona, Colorado and Nevada promptly intervened within the case, understandably concerned that a ruling in favor of the Nation could ultimately reduce their very own water rights to the Colorado River.

In 2021, the Ninth Circuit Court of Appeals ruled in favor of the Navajo Nation, unanimously concluding that the Nation was inside its rights to pursue its breach-of-trust claims against the federal government.  The Ninth Circuit upheld the Nation’s right seek a federal order directing the U.S. Department of the Interior to develop a plan to satisfy the Nation’s water needs and to administer the Colorado River flows in order to not interfere with that plan.  Each the federal government and the intervenor states then successfully sought U.S. Supreme Court review.

The case before the Supreme Court raises two key issues: 1) whether the Navajo Nation can state a viable claim for breach of the federal government’s trust duties to the Nation, based on the Nation’s as-yet-unquantified, implied rights to water as affirmed by the Supreme Court in its iconic 1909 Winters v. United States decision; and a couple of) whether the Ninth Circuit’s decision infringes upon the Supreme Court’s retained and exclusive jurisdiction over the allocation of water from the Colorado’s mainstream under the Court’s 1963 Arizona v. California decision.

The justices’ consideration of those arguments will happen against a rare backdrop: the Colorado River system–upon which seven states, two nations and various Native American tribes depend–is facing critical and unprecedented water shortages.  On account of a megadrought in that system, there’s simply not enough water to satisfy the needs of the prevailing claimants to Colorado River waters.  So far the seven Colorado River Basin states–including California–haven’t been in a position to agree as to how those shortages needs to be apportioned amongst them.  If that political gridlock continues, the Department of the Interior could have to impose its own set of water cutbacks upon the states–an motion that might likely trigger additional litigation by disaffected states against the federal government and one other.

A review of the factual and legal history of the Navajo Nation’s claims before the Supreme Court strongly suggest that the equities of their legal position are compelling.  It’s well settled that Native American water rights are probably the most “senior” of all such water rights, and take priority over each those of states and individual water users.  And it’s well documented that the federal government refused to say water rights to the Colorado River on behalf of the Navajo Nation before the Supreme Court in 1963, after which blocked the Nation’s efforts to say its own water rights claims before the justices in the identical proceedings.

However the federal government and the intervening states could have the law on their side–that law being the “Law of the River,” a posh, century-old set of interstate compacts, U.S. Supreme Court decisions and federal laws that together control how the dwindling water supplies of the Colorado River system are to be allocated.  While the Navajo Nation argues that it isn’t currently searching for a proper adjudication of its water rights to the Colorado River, the federal government maintains that that is in practical effect exactly what the Nation is attempting to realize.  And the federal government’s arguments may perhaps resonate with a conservative majority of the justices.

Today’s arguments before the justices should due to this fact be an interesting amalgam of Western history, Native American rights, and probably the most complex system of water rights to be present in your entire United States.

The Navajo Nation’s rights to adequate water supplies to sustain its people and its reservation have been largely ignored by the U.S. government and federal courts for over 150 years.  The Arizona v. Navajo Nation case being argued today provides the justices with a possibility to start correcting these historic injustices.  But whether the justices will act to redress those injustices appears questionable at best.





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