Navajo Nation’s Quest for Water and Justice Comes to Supreme Court

The tribe’s lawsuit alleged that the federal government had failed in its duty “to determine the extent to which the Navajo Nation needed water from the Colorado River to make its lands in Arizona productive.”

Arizona-based U.S. District Court Judge Murray Snow dismissed the suit in 2019, saying the tribe had failed to demonstrate that a duty of trust had been breached. He also raised questions about whether a ruling for the tribe would violate the Supreme Court’s findings in the long-running Arizona v. California.

The San Francisco-based 9th U.S. Circuit Court of Appeals in April 2021 revived the tribe’s lawsuit, finding that the tribe was not seeking direct access to the waters of the Colorado River and therefore the lawsuit did not involve the various Arizona rulings. c.California.

“The Nation’s claim, properly understood, is an action for breach of trust – not a claim to judicially quantify its water rights,” the court concluded. The appeals court then found that the tribe could pursue its breach of trust claim.

The federal government and the states then appealed to the Supreme Court, which agreed in November to take up the case.

“Cloud of Uncertainty”

Solicitor General Elizabeth Prelogar, representing the federal government, argues in court documents that the tribe failed to emphasize the duty of trust the federal government owes the tribe when it comes to providing access to water from a specific source.

“The United States has a general relationship of trust with Indian tribes. But the existence of this general relationship does not itself establish any legally enforceable obligation against the United States,” she wrote.

She said if the Supreme Court were to rule in favor of the tribe, it would force the government to violate a 1964 ruling that was part of the Arizona v. California. This decision limited the circumstances under which the federal government could divert water from the lower Colorado River.

Federal officials declined to comment on the litigation.

The states involved in the case – Colorado, Arizona and Nevada – also reject the tribe’s arguments. The Colorado attorneys said in that state’s brief that a ruling for the tribe would result in “immediate and long-term disruptions to the coordinated management of the Colorado River.”

The states point out that they are already implementing a 2007 agreement on water shortages as well as a drought emergency plan adopted in 2019.

The states, federal government and three California water districts involved in the litigation all argue that a victory for the tribe would involve rights to the main channel of the Colorado River.

Rita Maguire, the attorney arguing before the Supreme Court on behalf of the States and California Water Districts in the case, said in an interview that while the tribe is now focused on the government’s general obligation to ensure the access to water,” it is clear that the Navajos seek a water right on the lower Colorado River.

Any change in how water is allocated “could cause damage to other states,” she said. A decision for the tribe would give them priority over others, and that “creates a cloud of uncertainty”, she added.

Tribal officials are aware they likely face an uphill battle in the Supreme Court, which is historically not favorable to Native Americans. Last year, the court ruled 5-4 against the Oklahoma tribes in a decision that expanded state authority over their territory.