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Western water wars at high court focus on Navajo Nation

Out of the arid American Southwest is a case headed to the Supreme Court dealing with the hottest commodity in the region: water. 

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. 

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After a decadeslong pause for settlement negotiations failed to resolve the dispute, a federal judge ruled for the government and dismissed the case in 2013. In a partial reversal, however, the Ninth Circuit revived the suit, finding the Navajo Nation had a breach-of-trust claim. 

The appeals court rescued the case for a second time after the district court dismissed on remand. The government and states asked the justices if the federal government had a duty to assess the Navajo Nation’s water needs. The court agreed to hear the case in November. 

While acknowledging the general trust relationship between the United States and tribes, the government claims it never expressly accepted any specific trust duty to the Navajo Nation. 

“The United States has a general trust relationship with Indian tribes,” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s brief. “But the existence of that general relationship does not itself establish any judicially enforceable duties against the United States.” 

Along with whether the federal government should have to fight for the Navajo’s water rights, the justices will decide if the tribe’s claims are an attempt to circumvent the court’s ruling in Arizona. The states claim allowing the Navajo Nation’s breach-of-trust claim would intrude on the justices’ own jurisdiction established in Arizona, and the court should reverse the Ninth Circuit’s ruling. 

“If upheld, the Ninth Circuit’s opinion threatens the security and reliability of the flows in the lower Colorado River by requiring the secretary of the interior to ensure that unadjudicated rights of the Navajo Nation must be protected prior to making any management decisions concerning the river system,” Rita Maguire, an attorney representing Arizona, said in an email.  

The Navajo Nation describes its need for water in dire terms. It says members use about 7 gallons of water per day — the American average is 80 — because of scarce resources. This scarcity, the tribe claims, resulted in higher Covid-19 death rates than anywhere in the nation because Navajo members did not have enough water to wash their hands. 

They also say so much bad faith lines the path that brought them where they are today. 

“How did we get here, in this country, in the twenty-first century? Broken promises,” Shay Dvoretzky, an attorney with Skadden, Arps, and Slate representing the nation, wrote in their brief.

The Navajo Nation argues that the government agreed to provide it with sufficient water for its reservation when it entered into treaties with the tribe in 1849 and 1868.

“The Nation is still waiting for the water it needs,” Dvoretzky wrote. “This case arises from the Nation’s breach-of-trust claim seeking an order requiring the United States to honor its treaty promises by assessing the Nation’s water needs and developing a plan to meet them.” 

The reality of the tribe’s water scarcity was persuasive enough to encourage Utah to settle its disputes. It’s possible the justices might be swayed by this argument as well. 

“It was hard to look at that suffering and say, no, you don’t get any water,” Craig said. “I mean, it became a basic human right at that point, and I think that is likely to be a factor that sways some of the justices. This has gone on for a century now, and we've just seen what it means in terms of suffering for the tribe. We can't turn a blind eye to that anymore. So I'm slightly optimistic that they find a way to get the tribe its water.” 

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