Approximately 15% of Navajo Nation residents do not have running water and rely on water from regulated water sources or other sources such as livestock wells to fill their needs, according to the Environmental Protection Agency.
On March 20, the Supreme Court of the U.S. (SCOTUS) heard arguments in a water rights dispute spanning 150 years on whether the federal government broke its promise to the Navajo Nation.
The case, Arizona v. Navajo Nation, concerns two issues: treaty rights establishing the Navajo Nation’s homeland and access to adequate water for agriculture in 1868, and whether access to water granted to the Tribe conflicts with a previous court decree.
The 1868 Treaty between the U.S. and Tribal leaders established the Navajo Nation reservation in northeastern Arizona and northwestern New Mexico. According to the filed brief, the treaty provided land and water for the re-establishment of agriculture to return to a permanent home. The Tribe asserts the government has not honored the treaty.
Shay Dvoretzky, on behalf of the Navajo Nation, stated in his opening arguments the U.S. has failed to fulfill its promise in the 1868 Treaty by promising water to sustain life in the arid desert.
“The United States thinks that it alone decides whether it has made good on its promises,” Dvoretzky said. “But that’s not how promises work. A promise is a solemn duty, and the United States’ duty is to see that the Nation has the water it needs and the United States promised.”
Chief Justice John Roberts asked why water was not mentioned in the treaty when the number of sheep, cattle and seeds was mentioned. Dvoretzky replied water was “something that was simply inherent in the permanent homeland.”
Justice Samuel Alito wondered if there was insufficient language in the treaty regarding a permanent homeland. Dvoretzky said the agriculture provisions and the historical context are inherent in the term “permanent homeland” and that comes from the court’s decision in the Winters Doctrine.
Frederick Liu, arguing for the federal government, told the court the government is not obligated to build infrastructure such as roads, pipelines or wells and “because the government has never expressly accepted those duties, the Navajo Nation’s breach-of-trust claim can’t proceed.” Liu continued the Navajo Nation cannot impose on the U.S. a duty that the government has not accepted.
The 9th Circuit Court of Appeals reversed a lower court ruling in 2021, stating 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 1908 regarding 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.
The justices also asked Liu about the Winters Doctrine, to which he replied, “I think there are ways to resolve this suit without violating the decree. Even if the Court believes there is a duty, there are forms of relief that fall—that are short of ordering a delivery of water from the lower Colorado to the Navajo Nation.”
Justice Sonia Sotomayor asked Liu if the government has trust over water for the Tribes and whether the government told the Navajo Tribe it could not intervene in Arizona v. California because it represented the Tribe’s interests. Liu said the court agreed and denied intervention. “But, as the Court has since made clear, including in Arizona v. California itself, Tribal participation in water rights disputes shouldn’t be discouraged,” Liu said.
In Arizona v. California, the government represented water claims from 25 Tribal Nations. Still, the Navajo Nation was not allowed to intervene on its own behalf in the main portion of the Colorado River, with the government citing the Tribe has access to the river’s tributaries. The decision established the “Law of the River” to divide Colorado River usage among the Lower Basin states of Arizona, California and Nevada.
When questioned by Justice Clarence Thomas about where the Tribe could access water, Liu replied there is an aquifer under reservation land they could access, along with water from Upper Basin states, despite being next to the Lower Colorado River.
Thomas asked if the Tribe had suggested a source other than the lower Colorado River. Dvoretzky replied that the first step is how the government will satisfy its rights under the Winters Doctrine and determine where the water will come from.
Justice Alito presented the question that if the Tribe had the means to take whatever quantity of water it needed for a permanent homeland, how much could it take? Dvoretzky said the Tribe has priority rights, but there would be a negotiated resolution and methodologies for accessing the water needs of the Tribe.
“We are asking for the United States to ensure that there is adequate water available,” Dvoretzky replied when asked if the Tribe was asking for water infrastructure. “I think that that invokes—that is meant to invoke the Winters rights. Right now, there is no water even to pipe. That is what we are asking them to assess. How much water do we need and how is it going to be made available?”
A decision in the case is expected by the end of June before SCOTUS breaks for its summer recess. — Charles Wallace, WLJ editor
