WASHINGTON (CN) — The fight for water in the West heads to the Supreme Court next week where the justices will decide if the government has a duty to give a tribal nation a share of the region's most precious resource.
For over a century, the Navajo Nation has been seeking recognition of get their water rights to the Colorado River. While states like New Mexico and Utah have come to settlements with the Navajo over water rights, Arizona has been a holdout in these negotiations. Now the Navajo want the federal government to step in on its behalf.
“What the Navajo Nation is doing in this case is saying that the United States, because of all these failures to get those water rights quantified, has breached a trust duty to the tribe,” Robin Craig, a professor of law at the USC Gould School of Law specializing in water issues, said in a phone call. “Why Arizona is not thrilled about it is because those water rights from the tribe would come off the top of its share of the Colorado River.”
Sometimes called the American Nile, the Colorado River serves around 36 million people, starting in the central Rocky Mountains of Colorado and flowing for around 1,300 miles through Colorado, Utah and Arizona. The river also borders the Arizona-Nevada and Arizona-California borders and passes into Mexico.
Established by an 1868 treaty, the Navajo Reservation spans over 17 million acres across three states — Utah, Arizona and New Mexico. The reservation shares a border with the mainstream of the Colorado River and includes land within the upper and lower basins.
The Navajo claim that in creating a reservation for them, the government agreed to provide them with water. This argument is supported by the 1908 case Winters v. United States, which says that Congress, when it reserves land, also reserves the water to support that land.
“In the Winters case, the Supreme Court said pretty clearly that Western tribes would not have ceded the huge lands that they roamed to the United States in these very arid places without understanding that water came with the reservation,” Craig said. “I mean, it would make no sense from the tribe's point of view to sign a treaty saying, OK, yeah, we'll confine ourselves to space without having water rights to go with it. So, the Navajo Nation is arguing that that Winters decision creates a duty on the part of the federal government to secure water for the tribe.”
Arizona has been reluctant to come to an agreement over tribal water rights because of what it could mean for its own limited water supply.
“Arizona has got the most tribes that have unquantified water rights of any of the Colorado River states, and the amount of water those tribes are potentially entitled to is huge — depending on how you calculate it, potentially larger than Arizona’s share of the Colorado River,” Craig said. “ So Arizona is in a tight spot is the bottom line.”
This will not be Arizona’s first water rights battle at the high court. Sixty years ago, the court decided Arizona v. California, settling water apportionment between Arizona, California and Nevada. The justices also put the secretary of the interior in charge of managing the division of water. While this ruling provided some tribes with water rights, the Navajo were one the few tribes left out.
Since its exclusion from Arizona, the Navajo Nation has been fighting for its rights to the Colorado River. The tribe sued the government in Arizona in 2003, claiming the failure to protect its water rights violated the National Environmental Policy Act of 1969 and the government’s trust obligations to the Navajo Nation. The suit was joined by Arizona, Nevada and Colorado.