What the Supreme Court heard in a major case on Tribal water rights

On Monday, the Supreme Court heard oral arguments in Arizona v. Navajo Nation, a case revolving around the dispute between the U.S. government’s obligation to fulfill the Native American reservation’s water needs.

Water is a critical resource for the Navajo Nation. A third of some 175,000 people who live on the country’s largest reservation don’t have running water in their homes.

“Today, the average person on the Navajo Nation reservation uses just seven gallons of water a day. The national average is 80 to 100 gallons [per day],” said Washington attorney Shay Dvoretzky, representing the Navajo Nation at the high court. “The Nation only asks that the United States, as trustee, assess its people’s needs and develop a plan to meet them.”

At the heart of the issue is an 1868 treaty the federal government signed guaranteeing support for the Navajo Nation’s agricultural needs and promising a “permanent home” for residents to farm and raise animals, which the Navajo Nation argues include water rights. The tribe contends that the U.S. government has failed to live up to this guarantee to provide it with adequate supply of water, drawn from the Colorado River.

The Nation also cites the 1908 Winters doctrine in the suit, which established that the creation of a Native American reservation also reserves the water necessary for its purposes.

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“Is it possible to have a permanent home, farm and raise animals without water?” Justice Neil Gorsuch asked during Monday’s hearing.

No, responded Frederick Liu, assistant to the U.S. Solicitor General. He explained that the treaty did not press a legal duty on the federal government to supply more water to the reservation, or to even analyze the issue.

“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,” said Liu.

Justice Sonia Sotomayor skeptically responded to Liu’s arguments. “I don’t understand, if the treaty promises water, where [did] you get the idea that that is unenforceable?” she asked Liu.

Liu said “the promise that we have allegedly breached here isn’t about violating those rights. It’s about violating affirmative duties to supply the water to the tribe.”

Sotomayor later added that the agreement the tribe entered with the U.S. government is an “odd” one.

“[The Navajo Nation] agreed to go back to a piece of their homeland, they agree to sit to a land that would permit them to return to agriculture, and the bargain they got in return was, ‘we the United States took away all of your other lands. We gave you this piece of land. Here, survive. Even if it turns into desert conditions,’” Sotomayor pointed out. “Where you admit there are significant water needs on the reservation, but the tribe can’t do anything about it.”

Arguing on behalf of the state of Arizona, Rita Maguire claimed that the Winters obligation “is an intent. It does not define a duty for the federal government.”

Justice Elena Kagan replied to clarify that “rights usually have a correlative duty attached to them.”

The case also comes as many southwestern states face a water crisis.

The mainstream of the Colorado River, which is in danger of collapsing under the strain of drought and overuse, flows along the northwestern border of the tribe’s reservation, which extends into New Mexico, Utah and Arizona. The Navajo Nation has never had a right to use that water on its reservation.

In 2003, the Nation sued the federal government because it had failed to protect the tribe’s water rights to the river.

While a federal trial court dismissed their lawsuit, it won a victory in the 9th Circuit Court of Appeals back in 2021. The appeals court said the suit had a claim for breach of trust, pointing out the 1868 treaty’s reference to agriculture.

According to the Los Angeles Times, lawyers for Arizona along with the Metropolitan Water District of Southern California said that it’s too late for the tribe to seek new rights to the same water in these lawsuits, because the Supreme Court decrees have already allocated water supplies from the lower Colorado River Basin to each respective state.

The justices’ decision – due in June of this year – is going to have far-reaching implications, according to High Country News. Whether it’s a narrow ruling that applies solely to the Navajo Nation, or a much broader one that could affect tribal water rights across the country, the stakes are significant because it reserves an entire ecosystem for the Navajo Nation.

These things are not only important to sustain life within the reservation, but also to carry out traditional practices and ceremonies.