Supreme Court hears Navajo Nation case for access to Colorado River water
Kaelan Deese
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The Supreme Court will hear oral arguments Monday in a case with major implications for how water from the drought-stricken Colorado River is shared and how the U.S. government honors obligations to Native American tribes.
The water fight stems from the U.S. government and the Navajo Nation’s more than 150-year-old treaties that reserved the tribe a “permanent home,” a vow the tribe says includes a vast water supply. Now, the tribe says that promise has been broken and that its people are suffering as a consequence of that severed deal.
SUPREME COURT TO HEAR WATER DISPUTE BETWEEN NAVAJO AND GOVERNMENT AMID HISTORIC DROUGHT
In the wake of the drought, nearly a third of residents in the tribe’s Western U.S. territory lack access to reliable and clean drinking water in their homes, according to a 2021 Columbia University journal.
“You drive to Flagstaff, you drive to Albuquerque, you drive to Phoenix, there is water everywhere, everything is green, everything is watered up,” said Rex Kontz, deputy general manager of the Navajo Tribal Utility Authority. “You don’t see that on Navajo.”
But the federal government disputes the claim that the promise to a permanent home includes water, arguing that more water for the drought-stricken tribal territory would undercut other areas across Arizona, California, and Nevada that are also suffering from a drought.
The Biden administration argues in a brief that under Supreme Court precedent, the United States can only be brought to court by the tribe when it has a so-called expressly accepted responsibility, such as a relevant law or regulation it has enacted.
“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 court of appeals therefore erred in permitting the Navajo Nation’s claim to go forward,” attorneys for the Justice Department wrote, referring to a previous decision by the 9th U.S. Circuit Court of Appeals.
While the federal government objects to the tribe’s request, the Navajo Nation argues there are no “magic words” that require the U.S. to act on a treaty and that its existence should be enough to prompt a response.
The tribe cited the Supreme Court’s 2020 decision in McGirt v. Oklahoma, which found that tribes maintained much jurisdiction over federal crimes committed on their lands in the state.
However, the court’s ideological composition changed with the death of Justice Ruth Bader Ginsburg and the installment of the 6-3 conservative majority. Two years after the McGirt decision, the court scaled back that precedent in Oklahoma v. Castro-Huerta, allowing the state to prosecute nontribal members who commit crimes against tribal members on reservations.
If the Navajo Nation were to win the dispute, it wouldn’t directly result in more water for the nearly 175,000 people who live on the reservation, which is one of the largest in the nation. Rather, the tribe wants the Department of the Interior to account for the tribe’s needs in Arizona and determine a plan to satisfy those needs.
As it stands, the tribe typically relies on groundwater to serve their homes and businesses. The tribe wants more ways to gain access to surface water, including the Colorado River and its tributaries, to help remote developments that are far away from any direct water sources.
Several amicus briefs support the Navajo Nation’s stance. The Coalition of Large Tribes wrote that Congress has approved several major tribal water rights settlements in the past.
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“In many cases the key issue is not how much water is available, but how much money Congress is prepared to appropriate to enable that water to reach the people who need it. The history of the litigation over the Lower Colorado River Basin clearly attests to this reality,” the coalition wrote.
The Supreme Court will hear two consolidated cases over the dispute on Monday at arguments beginning at 10 a.m. EST. A decision over the dispute is expected by the summer.