PHOENIX — The U.S. Supreme Court rejected a claim by the Navajo Nation on Thursday that the United States held an obligation to determine the tribe’s water needs and secure supplies to meet those needs. The 5-4 decision represents a setback for the tribe, which still lacks reliable water sources in many communities.
Writing for the majority, Justice Brett Kavanaugh said the U.S. treaty with the Navajo Nation “said nothing about the affirmative duty for the United States to secure water.”
“Rather, Congress and the President may enact — and often have enacted — laws to assist the citizens of the western United States, including the Navajos, with their water needs,” he wrote.
Kavanaugh was joined in the majority by Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett. Dissenting were Justices Neil Gorsuch, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
The Navajo Nation is the largest Indigenous tribe on the Colorado River without defined water rights. Navajo leaders have negotiated with state and federal leaders for decades in an attempt to secure water, but have never reached an agreement.
At issue is whether the United States has a treaty-based duty to assess the Navajo Nation’s water needs and develop a plan to meet them. One of the questions is whether a lower federal court order requiring the U.S. to develop that plan would conflict with the court’s landmark decree in Arizona vs. California, a decision that has shaped the use of Colorado River water for decades.
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States with allocations on the river, including Arizona, Nevada, and Colorado, along with some water districts in California, argued that if the court requires the federal government to set aside water for the Navajo Nation, other users on the river will be forced to give up shares of water.
The states are already faced with a river that no longer delivers the water it once did, shrunken by more than two decades of drought and the growing effects of climate change. Arizona is in its second year of reduced allocations and is in ongoing talks with other states and the federal government to potentially made do with less.
Of the 22 federally recognized tribes In Arizona, 14 have secured water settlements and much of the water used to satisfy the agreements were carved out of the state’s allocation. About 46% of the water that flows through the Central Arizona Project is allocated to tribes, according to CAP officials.
‘Indian water rights are based on sovereignty’
Navajo Nation President Buu Nygren and Speaker Crystalyne Curley expressed their disappointment in the decision.
“Today’s ruling is disappointing and I am encouraged that the ruling was 5-4,” said Nygren. “It is reassuring that four justices understood our case and our arguments.”
He said Navajo Nation lawyers will continue to analyze the opinion, and he remains undeterred in obtaining quantified water rights for the Navajo Nation in Arizona. He also said the Navajo Nation established a water rights negotiation team earlier this year and are working very hard to settle the tribe’s water rights in Arizona.
“My job as the President of the Navajo Nation is to represent and protect the Navajo people, our land, and our future,” said Nygren. “The only way to do that is with secure, quantified water rights to the Lower Basin of the Colorado River. I am confident that we will be able to achieve a settlement promptly and ensure the health and safety of my people. And in addition, the health and productivity of the entire Colorado River Basin, which serves up to thirty tribes and tens of millions of people who have come to rely on the Colorado River.”
Before the decision, former Navajo Nation President Jonathan Nez said with the recent rulings made by the court, especially one last week that upheld the Indian Child Welfare Act, the justices could go either way. He talked about the research needed for justices to rule on Indian rights and law, and had hoped the outcome on the water case would be similar to the one for ICWA.
“It’s difficult to negotiate terms into a settlement during a drought,” Nez said. “Because everyone is wanting water in the Southwest with the state and all.
“Indian water rights are based on sovereignty,” he added. “Our Treaty of 1868 and Winters doctrine, saying we Navajo tribe should have basic necessity to provide for a permanent homeland.”
The Navajo Nation has over 400,000 people, he said, and while not all live on the reservation, many can say they are planning on coming home someday.
“We are trying to create a permanent homeland for the Navajo people,” said Nez. “It’s not just drinking water. I know a lot of these water rights discussions are quantification for drinking water, but as Native people, water is life, and it’s not just drinking about agriculture, farming, and livestock and animals.”
He said at the onset of the pandemic, people realized that 30-40% of Navajos did not have running water and that the priority when it came to hauling water was for animals and farms, with whatever was left over for personal hygiene.
“Sometimes that wasn’t a lot, or sometimes it was none for personal hygiene, no wonder we got hit hard during COVID when the CDC and feds were telling us to wash our hands with soap and water,” said Nez. “Not many people in tribal communities had that blessing.”
Rep. Raúl Grijalva decried the ruling, calling it “a dangerous decision that moves us backward to our shameful past in which treaties were promises not worth the paper they were written on.”
“Ruling against the Navajo Nation in this way while we face a third decade of intensifying drying of the West is especially egregious,” said Grijalva, D-Ariz. “This decision will only further complicate an already tense water allocation negotiation process that has too often shut tribes out.”
He called on Congress to pass legislation to secure water for the Navajo Nation.
The court’s ruling and dissent
The court case, Arizona v. Navajo Nation, was not about whether the Navajo Nation, or any other tribal nation, was entitled to water. The Supreme Court ruled more than a century ago that tribes were assured enough water to meet their needs.
The question was whether the U.S. treaty with the Navajo Nation created a government obligation to determine what those needs were and devise a plan to find the water and potentially build pipelines or other infrastructure to distribute it.
In its Thursday ruling, the court said there was no such obligation.
The text of the treaty “says nothing to that effect,” Kavanaugh wrote. “And the historical record does not suggest that the United States agreed to undertake affirmative efforts to secure water for the Navajos — any more than the United States agreed to farmland, mine minerals, harvest timber, build roads, or construct bridges on the reservation.”
The court acknowledged the Navajo Nation’s claims to the Colorado River, which flows along the boundary of the Navajo Reservation. Kavanaugh referred to the drought on the river, and said that, “even though the Navajo Reservation encompasses numerous water sources and the Tribe has the right to use needed water from those sources, the Navajos face the same water scarcity problem that many in the western United States face.”
Kavanaugh also seemed to agree with the claims of some of the states on the river, which opposed the Navajo case.
“Allocating water in the arid regions of the American West is often a zero-sum situation,” he 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.”
In a lengthy dissent, Gorsuch said the court’s majority erred in its reading of the case and the law.
Navajo leaders “have a simple ask,” he wrote. “They want the United States to identify the water rights it holds for them. And if the United States has misappropriated the Navajo’s water rights, the Tribe asks it to formulate a plan to stop doing so prospectively.”
He said the government wields “considerable control” over the Colorado River, the water source closest to the Navajo Nation, but has failed to resolve what rights the tribe holds on the river. The original Colorado River Compact, he noted, did not allocate water among the tribes in the seven states on the river, and the federal government has repeatedly refused to resolve any of the tribe’s demands for water.
The government holds water in trust for the Navajo Nation and controls a water source to which the tribe contends it holds rights, Gorsuch wrote.
“Accordingly, the government owes the Tribe a duty to manage the water it holds for the Tribe in a legally responsible manner,” he wrote. The tribe’s lawsuit asks the United States “to fulfill part of that duty by assessing what water rights it holds for them. The government owes the Tribe at least that much.”
He also suggested the Navajo Nation should pursue other legal remedies.
“After today, it is hard to see how this Court (or any court) could ever again fairly deny a request from the Navajo to intervene in litigation over the Colorado River or other water sources to which they might have a claim.”
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Tribe has waited for a solution, but ‘it hasn’t happened’
Attorney Shay Dvoretzky, arguing the court case earlier this year on behalf of the Navajo Nation, told the justices that the tribe’s current water request is not unreasonable. The “relief that we are seeking here is an assessment of the nation’s needs and a plan to meet them,” he said.
“We’ve been waiting half a century for the political branches to solve this problem for the nation,” Dvoretzky argued. “It hasn’t happened.”
Indigenous communities were not included when the Colorado River was divided among the seven states a century ago, tribal officials argue. The states made agreements among themselves that left tribes with little or no water without settlments.
Arguing on behalf of the Biden administration, attorney Frederick Liu told justices that if the court were to side with the Navajo Nation, the federal government could face lawsuits from many other tribes.
A century-old Supreme Court ruling held that Indigenous communities had the right to enough water to meet the needs of their reservations, but those needs have never been quantified for the Navajo Nation.
Navajo officials argue that the federal government broke a promise to ensure that the tribe has enough water to meet the needs of its sprawling home in Arizona, New Mexico, and Utah. Tens of thousands of people across the Navajo Nation lack access to running water and must haul supplies from wells that tribal officials say are being overused.
Residents of the Navajo Nation are 67 times more likely than other Americans to live without running water, according to the DigDeep Navajo Water Project, a nonprofit has tried to fill the gap in research and solutions.
Nez, the former Navajo president, told the U.S. House of Representatives in 2020 that he attributed the high local toll of COVID-19 during the early days of the pandemic to the lack of water in the homes of Navajo people.
“Clean water is a sacred and scarce commodity,” he said.
Navajo officials say without a secured water source that a settlement would provide, conditions will never improve because groundwater is insufficient for long-term needs.
The federal government says it has helped the tribe secure water from the Colorado River’s tributaries and provided money for infrastructure including pipelines, pumping plants and water treatment facilities. But it says no law or treaty requires the government to assess and address the tribe’s general water needs.
The Gila River Indian Community secured one of the largest tribal water settlements in 2004 and has used the water to irrigate farms, which had been left dry other water users diverted the flows of the Gila River.
Contributing: Joan Meiners, Arizona Republic; The Associated Press
