Supreme Court agrees to hear Indian tribe’s bid to access water from the Colorado River: 9th Circuit previously sided with the Navajo Nation, allowing the lawsuit to proceed

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The Supreme Court agreed Nov. 4 to hear a dispute about whether an Indian tribe has the right to draw water from the Colorado River.

The case pits the Navajo Nation, a large Indian reservation occupying territory in Arizona, New Mexico, and Utah, against the states of Arizona, Nevada, Colorado, the Metropolitan Water District of Southern California, and the U.S. Department of the Interior.

One hundred years ago an interstate compact spelled out the water rights relating to the Colorado River. The tribe, based in the arid Western part of the United States, says it needs access to the river because many of its members rely on wells for water. The tribe sued in 2003 seeking access to the main section of the river and litigation has been pursued since then.

The often-reversed U.S. Court of Appeals for the 9th Circuit ruled in February that the tribe could move forward with its lawsuit.

The Navajo Nation urged the Supreme Court in a brief (pdf) not to take up the appeal by the state and federal governments and the water district.

The 9th Circuit was correct in its holding that the tribe should be allowed to pursue its claim “that the United States owes the [Navajo] Nation a fiduciary duty to assess, protect, and preserve the Nation’s water rights,” the tribe said. The Supreme Court need not get involved in the case because the circuit court’s “conclusion does not conflict with any decision of this Court or any other court of appeals.”

The Biden administration disagreed, saying the 9th Circuit erred in “finding the existence of a judicially enforceable duty.”

“Nothing in the supposed sources the court of appeals cited imposes any specific and affirmative duties on the federal government on behalf of the Navajo Nation with respect to the water of the Colorado River or the basin more generally, much less a duty to conduct the sort of broad-ranging inquiry the Navajo Nation seeks,” U.S. Solicitor General Elizabeth Prelogar argued in court papers (pdf).

“The court of appeals’ decision conflicts with this Court’s precedents and with decisions of other courts of appeals. And if allowed to stand, the decision below will undermine Congress’s role in ‘implement[ing] national policy respecting the Indian tribes,’ … while imposing a regime of general judicial oversight of the United States’ relationship with Indian tribes,” Prelogar wrote, citing the Supreme Court’s 2011 ruling in U.S. v. Jicarilla Apache Nation.

The states, which are also aligned against the Navajo Nation in the case, argued that if the 9th Circuit ruling stands, it will hinder their ability to access water when drought restrictions have made it scarce.

The case is actually two cases that have been consolidated, Arizona v. Navajo Nation, court file 21-1484, and Department of the Interior v. Navajo Nation, court file 22-51. The court provided no reasons for why it granted the petitions. At least four justices have to vote to hear a case in order for it to proceed. A date for oral argument has not yet been set.

This article by Matthew Vadum appeared Nov. 4, 2022, in The Epoch Times.