[The Supreme Court will have to sort through more than 150 years
of byzantine rules and regulations to determine the fate—and the
future—of a drying West.]
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NAVAJO NATION IS TAKING ON THREE STATES AND THE FEDERAL GOVERNMENT
FOR THE RIGHT TO COLORADO RIVER WATER  
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Matt Ford
March 9, 2023
The New Republic
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_ The Supreme Court will have to sort through more than 150 years of
byzantine rules and regulations to determine the fate—and the
future—of a drying West. _

A water pump outside the home of Janlee Hudson, who only has water
from a sink, on the Navajo Nation reserve. The Supreme Court will have
a chance to resolve the water rights disputes that the tribe hopes to
settle., Spencer Platt / Getty Images

 

The Supreme Court is extremely strict about what can be brought into
its chambers during oral arguments. In addition to obvious items like
guns and knives, visitors must leave just about every other personal
item outside when they enter. Cameras, cell phones, laptops, and the
like are left outside—even if you’re a reporter. No snacks or
drinks can be brought in. Not even water.

On March 20, however, the entire Colorado River will be looming over
the justices when they hear oral arguments in _Arizona v. Navajo
Nation._ The case, which dwells at the intersection of Native treaty
rights and water rights, will mark the court’s latest foray into the
byzantine rules and regulations that govern limited supplies of water
in one of the driest parts of the country. For the Navajo Nation, the
court’s decision on its nineteenth-century treaty rights could have
serious consequences for its future.

One half of the case’s origins involves the treaty rights promised
to the Navajo Nation when it agreed to reside on the reservation in
the late nineteenth century. In 1848, the federal government signed
its first treaty with the Navajo people where it promised to delineate
a permanent reservation for them within their historical homelands and
legislate to secure their “permanent prosperity and happiness.”
That, tragically, did not come to pass.

Instead, United States troops forcibly relocated the majority of
Navajo men, women, and children from Arizona to eastern New Mexico in
a brutal and violent military campaign in the mid-1860s. In 1868, the
remaining leaders began negotiations with General William Sherman, who
acted on behalf of the U.S., to end the deadly imprisonment. Central
to the negotiations, the Navajo Nation told the court, was a mutual
desire by both sides to supply the Navajo with arable land where they
could farm and ranch. Access to water was a necessary precondition to
those hopes.

“The result was the 1868 Treaty, which established the Navajo
Reservation and promised opportunities and tools for farming and funds
for thousands of animals to replenish the Navajo herds,” the tribe
said in its brief for the court
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“The Treaty, in short, promised both land and water sufficient for
the Navajos to return to a permanent home in their ancestral
territory.” Over time, the initial land grant grew to encompass a
significant portion of what is now northeastern Arizona, making it the
largest Native American reservation in the United States.

In the Navajo Nation’s eyes, the U.S. has not yet lived up to its
promises to help the tribe become self-sufficient. It told the court
that 30 percent of its members don’t have access to running water,
forcing them to seek it from distant nonpotable sources at
considerable cost and effort. “While the average American uses
80–100 gallons of water per day for household needs, Navajo Nation
members use about seven,” the tribe noted. “The resulting
difficulty in maintaining hand hygiene contributed to a Covid-19 death
rate higher in the Nation than in many other parts of the United
States. And droughts have only made things worse.”

The other half of the case’s history springs from a century of
broader legal squabbles over water rights for the Colorado River, the
most important waterway in the southwestern U.S. Seven states formed
an interstate compact in 1922 to settle the division of rights. The
Colorado River Compact effectively divided the river and its waters
into two portions, with Colorado, New Mexico, Utah, and Wyoming
forming the upper half and Arizona, California, and Nevada forming the
lower. It did not resolve, however, how much water should be allocated
among the states within each half. Arizona and California went to the
Supreme Court in 1952 over the question, drawing other states and the
federal government into the dispute.

Lawsuits between the states themselves fall under the high court’s
original jurisdiction, meaning no lower court hears the
case. _Arizona v. California_ and its related cases are among the
most complicated disputes in the court’s history, and it serves no
purpose to summarize them at any great length here. What matters in
this particular case is that the U.S. intervened on behalf of five
Southwestern tribes in the Lower Colorado River basin to provide them
with adequate access to water, which the court granted.

The Navajo Nation was not among those five tribes. Instead, the
federal government asserted a claim on their behalf for water rights
from the Little Colorado River, a tributary of the main waterway, over
the tribe’s objection at the time. The Supreme Court did not address
those specific claims in its labyrinthine decision and largely focused
on the more immediate disputes between the various states. But the
justices took care to note that the decree did not affect “the
rights or priorities, except as specific provision is made herein, of
any Indian Reservation.”

In 2003, the Navajo Nation sued the federal government on multiple
grounds, including a breach-of-trust claim. That claim sprang from the
government’s failure to properly secure the reservation’s water
rights despite the treaty promises made in 1968. “This case is about
this promise of water to [this] tribe under [these] treaties, signed
after [these] particular negotiations reflecting this tribe’s
understanding,” the tribe told the court. “A promise is a promise.
And a promise in a treaty, the U.S. concedes [in its own brief for the
court], is binding.”

The Ninth Circuit Court of Appeals agreed and, after nearly a decade
of litigation, ruled in favor of the Navajo Nation in 2021. “The
Treaty’s farming-related provisions, which sought to encourage the
Nation’s transition to an agrarian lifestyle, would have been
meaningless unless the Nation had sufficient access to water,” the
three-judge panel noted in its opinion. Indeed, as the court noted, it
would have been virtually impossible for Navajo farmers to grow crops
in the arid Southwest without ready access to irrigation. The court
rejected the Interior Department’s claim that no such promise
existed and that the Ninth Circuit’s ruling would interfere with
the _Arizona v. California_ litigation that had parceled out the
Colorado River’s existing water rights.

The Justice Department asked the Supreme Court to intervene. In its
brief, it argued that the federal government has no duty to secure
water rights for the Navajo Nation from the mainstream of the Lower
Colorado River. It also disputed that the treaties bound the U.S. by
any specific obligations to act. “The [Ninth Circuit] relied on
provisions in the 1868 Treaty relating to farming on the original
Navajo Reservation, but those provisions did not impose any duty on
the United States relating to water—let alone any duty resembling
the duty that the Navajo Nation asserts here,” the
department claimed
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The tribe strongly disagreed. It noted that treaty promises are
typically read by courts in the context in which the treaty signers,
including the Navajo leaders, would have understood them. “The
United States, for its part, recognized the unsuitable living
conditions at Bosque Redondo and acceded to the Navajos’ request to
return to their homeland,” the Navajo Nation explained to the court.
“When it signed the 1868 Treaty, the United States knew that water
access was crucial to the survival of Indians living in the Colorado
River Basin.”

Since it could have implications for water rights allocations of other
jurisdictions along the Colorado River, a coalition of states
intervened on the federal government’s side to argue against the
Navajo claim. They insisted that the Ninth Circuit and other lower
courts had erred by departing from the framework established in
the _Arizona v. California_ litigation and other agreements, which
are collectively known as the Law of the River for clarity’s sake.

To that end, the coalition of states urged the Supreme Court to reject
the claim on practical and procedural grounds. “Having different
courts dividing (or re-dividing) a limited resource invites chaos, as
neither users nor system operators will have the certainty that a
water adjudication is supposed to provide to attract the investments
needed to reclaim desert lands for irrigation and to develop and
maintain an urban civilization,” the states argued
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The Navajo Nation countered, however, that the states’ intervention
is premature at best because the 1868 treaty guaranteed water rights
without specifying the Colorado River as the source. “If the suit
succeeds and the government ultimately determines that it may need
Colorado River water to fulfill its promise, then the parties might
need to return to this Court,” the tribe argued. “But the
Nation’s claim does not depend on rights to Colorado River water. It
thus does not fall within the narrow category of issues implicating
this Court’s retained original jurisdiction.”

In making its argument to the court, the Navajo Nation also took pains
to note that the court need not issue a ruling that could alter water
rights claims beyond the Colorado River. “Requiring the United
States to fulfill its specific treaty promise to provide the Nation
with adequate water goes no further than interpreting these treaties
with this tribe in this case,” the Navajo Nation told the court.
“As this Court has recognized, different treaties with different
tribes, even with similar language, may mean different things in light
of the negotiations and historical context.”

At the same time, a ruling against the tribe could have implications
for water rights cases involving tribes outside the region. A
coalition of prominent tribes filed a friend-of-the-court brief
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favor of the Navajo Nation, where they urged the justices to abide by
the principles the court previously laid out in the 1908
case _Winters v. United States._ That case established that the U.S.
holds an implied trustee relationship over water rights for tribal
reservations, since those reservations could not logically exist or
prosper without access to water.

The tribes urged the justices to uphold the Ninth Circuit’s ruling
and help enforce a trust that many tribes understood to exist when
they signed treaties with the U.S. in the nineteenth century. If the
court does not act, they noted, tribes could face even greater hurdles
in protecting their water rights from encroachment by other parties.
“A trustee that does not even know the scope of the property with
which it has been entrusted to preserve and manage, or take the
necessary steps to figure it out, is no trustee at all,” they noted.

The Supreme Court’s track record on tribal rights cases in recent
years is somewhat mixed
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as I’ve previously noted. In a series of cases about the continued
existence of reservations in Oklahoma, the court first recognized that
more than half of the state was Indian country in 2020, then sharply
curtailed tribal sovereignty in a follow-up case two years later. Oral
arguments in _Arizona v. Navajo Nation_ will give further insight
into whether the latter ruling was an isolated precedent, or if the
court is more broadly unwilling to hold the U.S. to the promises it
made more than a century ago.

_MATT FORD is a staff writer at The New Republic._

_THE NEW REPUBLIC was founded in 1914 as an intellectual call to arms
for public-minded intellectuals advocating liberal reform in a new
industrial age. Now, two decades into a new century, TNR remains, if
anything, more committed than ever to its first principles—and most
of all, to the need to rethink outworn assumptions and political
superstitions as radically changing conditions demand._

_Cofounder Herbert Croly declared that TNR was an
“experiment”—and today we rededicate that experiment, and our
magazine’s legacy, to the urgent challenges of reclaiming the
democratic faith amid dangerous, deranging new upheavals in our common
world._

_Please go to newrepublic.com/subscribe
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* Navajo Nation
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* Indigenous Rights
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* water rights
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* Supreme Court
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* treaties
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