The Supreme Court heard a dispute on March 20 about whether an Indian tribe can draw water from the Colorado River over the opposition of several thirsty nearby states.
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.
The case is actually two proceedings that have been consolidated: Arizona v. Navajo Nation, court file 21-1484, and Department of the Interior v. Navajo Nation, court file 22-51.
Indian law and water law are complex.
The Supreme Court held in U.S. v. Mitchell (1983) that “a general trust relationship between the United States and the Indian people” has long existed. That the federal government has a duty to honor its treaty commitments is called the doctrine of trust responsibility.
About a 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 U.S. Court of Appeals for the 9th Circuit ruled in February 2022 that the tribe could move forward with its lawsuit, which prompted the affected jurisdictions and the federal government to ask the Supreme Court to intervene.
The Supreme Court found in Winters v. U.S. (1908) that creating Indian reservations from land that was part of Indian land cession treaties created Indian water rights. These rights make sure a reservation would have sufficient water to maintain its land. Under water law in the western states, tribal water rights enjoy precedence over all others, according to a summary of the case at SCOTUSblog by professor Matthew L.M. Fletcher of Michigan State University College of Law.
Tribes participated in many important settlements in recent decades but settlements regarding the Colorado River took place before that in an era when the federal government asserted it had the power to decide for tribes what water rights to claim, the summary stated.
“The United States never brought the Navajo Nation’s claim to water from the main stem of the Colorado River. Under Winters, Navajo water rights are likely to be enormous. They have been the elephant in the room of Colorado River water apportionment for a century,” Fletcher wrote.
During oral arguments March 20, U.S. Department of Justice attorney Frederick Liu said the federal government does not have a duty to the Navajo Nation to take care of its water needs.
The dispute here is about “whether the United States owes the Navajo Nation a judicially enforceable affirmative duty to assess the tribe’s water needs, develop a plan to meet them, and then carry out that plan by building water supply infrastructure on the reservation,” Liu said.
“The answer to that question is no. Just as the 1868 treaty didn’t impose on the United States a duty to build roads or bridges or to harvest timber or to mine coal, the 1868 treaty didn’t impose on the United States a duty to construct pipelines, pumps, or wells to deliver water. Those affirmative duties aren’t part of the treaty. And because the government has never expressly accepted those duties, the Navajo Nation’s breach-of-trust claim can’t proceed.”
As part of the trust relationship between the tribe and the government, “Congress and the executive have secured for the Navajo Nation hundreds of thousands of acre feet of water and … billions of dollars for infrastructure on the reservation.”
It is up to the tribe “to develop its own infrastructure projects, including by drilling water to access the cheapest source of water on the reservation, groundwater,” Liu said.
Several justices pushed back against Liu’s arguments.
Justice Neil Gorsuch, who is often sympathetic to Indian tribes, said that treaty provisions with respect to agriculture include “a promise that this will be a permanent home and that there will be [an] opportunity for raising animals.”
Gorsuch continued: “Is it possible to have a permanent home, farm, and raise animals without water?”
Justice Elena Kagan said she didn’t understand Liu’s argument that even though the treaty provides for access to water, the tribe cannot try to enforce those rights.
“If the treaty promises water, where do you get the idea that this is unenforceable?” she said.
Justice Samuel Alito expressed concern about the “real world impacts” of the tribe’s water claim.
Liu said if the Supreme Court were to find that treaty provisions created “judicially enforceable duties … I think we would be facing similar suits across reservations in the country.”
“There are 500 or so tribal reservations. The government has entered into about 30 or so water agreements since the late 1970s. There’s ongoing litigation in … courts across the country.”
“I think this would impose on the United States a sort of amorphous duty to … take another look at all those issues,” Liu said.
Navajo Nation attorney Shay Dvoretzky said the federal government has been shirking its responsibilities under two treaties that gave the tribe “rights to water and impose duties on the government to secure that water.”
“Both parties understood that in promising the Navajos their land, the United States was also promising them the water it needed to sustain life in the arid southwest.”
“But for years, the United States has failed to fulfill that promise. Today the average person on the Navajo reservation uses just seven gallons of water a day. The national average is 80 to 100 gallons,” Dvoretzky said.
“We’re here because the United States says it doesn’t have to do anything to secure the water it promised, even though the United States also says it speaks for the Navajos as trustee of the Nation’s water rights.”
The states accuse the tribe of trying to “take their water behind their back,” the lawyer said. “No, the Nation is here for its fair share, through a fair process,” he added.
Chief Justice John Roberts said a treaty spells out specific things needed for agriculture such as sheep, cattle, and seeds.
“Why wasn’t water mentioned?” Roberts said.
Water was implied, Dvoretzky said.
“Water was something that was simply inherent in the permanent homeland and … making it suitable, both as a permanent homeland and for the very purpose of agriculture.”
The court may issue a ruling by June.
This article by Matthew Vadum appeared March 20, 2023, in The Epoch Times.