In the Navajo Nation, a man fills a tank for drought-stricken livestock with water from a local rancher. David McNew/Getty
This article, which was first published by Gristand, has been reprinted on Climate Desk as part of a cooperation.
The Navajo Nation signed two treaties with the United States in 1849 and 1868. The treaties established a reservation as the Navajos’ permanent home as long as they permitted settlers to dwell on the majority of their traditional land, which included a large portion of what is now New Mexico, Arizona, Utah, and Colorado. The treaties stipulated that the government would give the Navajo people seeds and farming equipment so they could grow food on the reservation.
Representatives for the Navajo Nation appeared before the Supreme Court on Monday to make their case that these treaties obligate the federal government to give water to their reservation, most likely from the hotly contentious Colorado River, after 20 years of litigation.
The Biden administration and a number of western states’ attorneys were on the other side, arguing that a finding in favor of the Navajo Nation would upend the legal environment surrounding the Colorado River at a time when states are already struggling to deal with drought. Future water availability in the Navajo tribe may depend on how the issue is resolved.
According to Jay Weiner, water counsel for the Quechan Indian Tribe of the Fort Yuma Indian Reservation, if the Supreme Court concurs with the Biden administration that there is no judicially enforceable obligation to do anything with water, that would be a seriously consequential and very damaging decision.
Arizona v. Navajo Nation’s two-hour oral argument depended on a number of issues that seemed to split the nine-member court in two, making it difficult to predict the extent and course of the justices’ eventual rulings. The Colorado River litigation will cease if the Navajo lose, forcing them to hunt elsewhere for a solution to their long-standing water access issues. If they win, however, they will have a limited but manageable road to securing a major water settlement on the river.
The Navajo reservation, which spans New Mexico, Arizona, and Utah, is largely bordered by the Colorado River and has an area comparable to West Virginia. Yet, the Navajo Nation lacks the legal authority to draw water from the river. The tribe has the ability to pump groundwater and draw some water from tributaries of the river, but it lacks the infrastructure to supply water to its residents.
As a result, many areas of the reservation experience major problems with water availability. The average daily water use of tribal members is seven gallons or about one-twentieth of what residents of the nearby state of Arizona use on a daily basis. Many tribal members depend on deliveries of bottled water for their basic health needs.
According to Weiner, progress in the west has historically and systemically neglected and ignored indigenous nations for the better part of a century and a half. Off-reservation towns have received billions of dollars for infrastructure projects of various types at the expense of oppressed tribes.
On Monday, the Supreme Court was asked to decide whether the treaties between the United States and the Navajo Nation obligate it to find the tribe more water. In a historic 1908 case known as Winters, the Supreme Court declared that when the government establishes an Indian reserve, it accepts a responsibility to provide water to that reservation for agricultural use.
The Navajo claim that the government has fallen short of fulfilling this duty. The tribe contends that because a large portion of the reservation borders the main stem of the Colorado River, it should have the right to use that water even if it only has limited access to water from a few Colorado River tributaries.
The Navajo Nation’s case appeared to convince at least four justices. Justice Neil Gorsuch pressed the government’s attorney, Frederick Liu, on the topic of the government’s obligations. Judge Neil Gorsuch frequently aligns with his three liberal colleagues on Indigenous matters.
He told Liu that it was obvious that the treaty required them to immediately deliver some water to this tribe. What am I overlooking? Gorsuch’s line of thinking regarding the treaty was repeated by the three liberal justices of the court as well as by Amy Coney Barrett, a conservative, suggesting a potential majority in the Navajos’ favor.
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The issue for the Navajo Nation is that other areas of water law would conflict with the delivery of water to Navajo inhabitants if the United States fulfills its commitments under Winters. As the lower Colorado River’s water was allotted by the Supreme Court decades ago, the Navajo Nation may need to take water from one or more of the seven states that use the river in order to satisfy its treaty obligations.
He questioned Liu about the effects on non-reservation residents’ access to water. The other conservative justices questioned Shay Dvoretzky, the attorney for the Navajo Nation, on the types of remedies the group was looking for and if the US would be required to build pipelines or other infrastructure to meet the tribe’s Winters rights.
There are many possible outcomes, according to Weiner: five votes in favor of the Navajo nation could signify a strong and comprehensive reaffirmation of tribal water rights, or it could appear as a more limited affirmation of the tribe’s treaty rights with limited implications for the Navajo Nation and Indian Country in general.
The Navajo tribe would still be able to battle for their water rights in a lower court, where the Biden administration and western states will be sure to fight back, but no new water rights would be granted to the tribe as a result. Even if that legal action is successful, securing water will involve protracted settlement talks with states like Arizona as well as the building of large amounts of new infrastructure, which might take decades.
The question in the case, according to Weiner, will be how much harm the court could do to tribal rights if a majority of the justices rule in favor of the Biden administration and the states.
The Nation could still create new infrastructure to pump groundwater, for example, but its fight to secure new water rights would be over for the foreseeable future if the least harmful decision against the Navajo were to end the decades-long campaign for water rights from the Colorado River main stem. Future Winters litigation may be affected if the Navajo is found to be the subject of a more general ruling.
It’s an important case because it might have an impact on not only the Navajo Nation and water rights but also the entire body of law that governs whether or not tribes can hold the United States accountable for promises made in treaties, according to Weiner.
