The Supreme Court of the U.S. (SCOTUS) recently ruled against the Navajo Nation, contending The Treaty of 1868, which established the reservation, did not establish an “affirmative duty” to secure water for the Tribe.
Justice Brett Kavanaugh, writing for the 5-4 majority, stated while the treaty does not impose a duty to secure water rights, it is up to Congress and the president to update the law to meet modern needs and it is not the role of the Judiciary to update the law.
“Allocating water in the arid regions of the American West is often a zero-sum situation,” Kavanaugh wrote. “And the zero-sum reality of water in the West underscores that courts must stay in their proper constitutional lane and interpret the law (here, the treaty) according to its text and history, leaving to Congress and the president the responsibility to enact appropriations laws and to otherwise update federal law as they see fit in light of the competing contemporary needs for water.”
The Navajo Nation had argued the government breached its contract when it failed to follow through on its promise in the 1868 Treaty to provide the water needed to maintain the Tribe’s permanent home. However, the federal government argued the Nation cannot impose a duty they do not accept. Therefore, the federal government does not have an obligation to provide the infrastructure necessary such as roads and pipelines, and the Nation cannot sue for a breach of contract.
Justice Neil Gorsuch, writing for the minority, said the case involves whether the federal government “misappropriated the Navajo’s water rights” and whether to stop from doing so prospectively.
“What water rights does the Treaty of 1868 secure to the Tribe?” Gorsuch wrote. “Remarkably, even today no one knows the answer. But at least we know the right question to ask: How much
is required to fulfill the purposes of the reservation that the Treaty of 1868 established?”
Gorsuch said the U.S. acknowledged they hold water rights in trust for the Navajo Nation. Gorsuch cited previous water treaties and suits, starting with the Colorado River Compact of 1922, which divided the river’s water among the states but left Tribes out of the water they could claim as their own. Gorsuch said a Tribe may bring suit when the federal government fails to provide an accurate accounting of water rights.
Gorsuch said the court has misinterpreted the nature of the complaint and the Nation is not asking for the federal government to build pipelines or aquifers. Instead, the Nation is bringing a breach of trust claim to secure water rights.
Gorsuch said what the Nation had been subjected to trying to gain their water rights is equivalent to the experience of spending time at the Department of Motor Vehicles.
“The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another,” Gorsuch wrote. “To this day, the United States has never denied that the Navajo may have water rights in the mainstream of the Colorado River (and perhaps elsewhere) that it holds in trust for the Tribe. Instead, the government’s constant refrain is that the Navajo can have all they ask for; they just need to go somewhere else and do something else first.”
SCOTUS concluded while the 1868 Treaty and the subsequent Winters Doctrine called for the necessary water for the purpose of the reservation, it did not require the U.S. to secure water for the Nation. The court reversed the decision from the 9th Circuit Court of Appeals.
Background
The Nation sued the federal government in 2003, bringing a claim under the National Environmental Policy Act and a breach of trust claim for failing to consider the Tribe’s Colorado River water rights.
The 9th Circuit Court of Appeals reversed a lower court ruling in 2021, ruling that although it is undetermined if the Nation’s water rights under the Winters Doctrine entitle the Nation to the mainstream of the Colorado River, the Nation can base its breach of trust claim on this argument. SCOTUS agreed to hear the case in November 2022.
SCOTUS’ decision in the case of Winters v. United States gives Tribes water rights as of the date the federal government created the reservation. This means Tribal rights are nearly always senior to those of most other current Western water users, and Tribes do not lose the rights for non-use.
Reaction
Navajo Nation President Buu Nygren said in a statement he is disappointed with the ruling, but that it was “reassuring” four justices “understood our case and our arguments.” Nygren said the Nation’s lawyers are analyzing the opinion and are working towards a settlement.
“As our lawyers continue to analyze the opinion and determine what it means for this particular lawsuit, I remain undeterred in obtaining quanti ed water rights for the Navajo Nation in Arizona,” Nygren said. “The Navajo Nation established a water rights negotiation team earlier this year and we are working very hard to settle our water rights in Arizona.”
Other Tribal organizations said the decision was a setback, but they will continue to assert their water rights.
“The U.S. government excluded Navajo tribal citizens from receiving a share of water when the original apportioning occurred and today’s Supreme Court decision for Arizona v. Navajo Nation condoned this lack of accountability,” said Native American Rights Fund (NARF) Executive Director John Echohawk. “Despite today’s ruling, Tribal Nations will continue to assert their water rights and NARF remains committed to that fight.” — Charles Wallace, WLJ contributing editor
