Environmental, Natural Resources, & Energy Law Blog

Water Rights and Tribal Law: Arizona et al v. Navajo Nation et al

Renee Shapiro

Emerging Topics Blog

12/5/23

Introduction

The Navajo Nation stretches 27,000 miles throughout the states of New Mexico, Arizona and Utah. According to the tribe, of the 170,000 residents, only one in three has access to clean, reliable drinking water.[1] A decades-long drought, exacerbated by climate change, has parched the American Southwest, creating the driest conditions in centuries. This reality has only exacerbated a decades-long fight for the Navajo Nation to gain clarity and control over their water rights in the Colorado River. In the case brought by the Navajo Nation to assert its water rights, both the Tribe and the United States government agree that Indian reservations have the right to water, but the question decided at the Supreme Court is how far the federal government must go in reserving that right. In its decision issued on June 22, 2023, the Supreme Court held that because the 1868 treaty that established the Navajo Reservation did not impose specific action to secure water for the Tribe, no breach-of-trust occurred and thus did not require the United States to take any action in securing water for the Tribe.[2]

In my blog, I will address why I believe the Supreme Court has erred in its 5-4 decision against the Navajo Nation and outline the implications this case will have for the day to day lives of those in the Navajo reservation, and for Indian Law as a whole. Had the Supreme Court ruled in favor of the plaintiffs, the outcome of this case would have been very different, leading to far-reaching implications for the Navajo Nation’s water resources, the stability of water rights, and the water allocation system.

Colorado River Background and Tribal Litigation

The Colorado River system was first divided among 7 basin states by the 1922 Colorado River Compact. The compact divided the water in half between the upper and lower basins, but did not allocate the river’s flows among individual states or federal lands. Since that time, the river’s allocation has been directed by a compilation of federal treaties, statutes, regulations, common law rulings, multi-state agreements and Supreme court designations- often referred to as the “Law of the River”.[3] Despite the fact that the Colorado River borders large portions of the Navajo Nation, the federal government has never asserted which water rights on the main stem the Nation holds. In the western United States, which prioritizes first-in-time users, Indian water rights should take priority over all, as tribal nations lived on this land long before water rights systems were even a concept.[4] Despite this understanding that dictates water law in the western United States, many tribal water rights have been unadjudicated and ignored by the federal government.

The current case began over 20 years ago with Department of the Interior v. Navajo Nation when the Nation sued the federal government for its lack of action in helping the tribe quantify its water rights on the Colorado River.[5] The tribe cited a breach of trust under the Winters Doctrine of 1908 as the basis for its claim. Eighteen years later, the United States Court of Appeals for the Ninth Circuit sided with the Navajo Nation.[6] In March 2022, the Department of the Interior appealed the ruling to the Supreme Court, which on June 22, 2023 overruled the appellate court’s decision.[7] The Supreme Court held that the 1868 treaty reserved necessary water for the purpose of the Navajo Reservation but included no language that requires the United States to take affirmative action in securing said water for the Tribe.[8]

Analysis: The Supreme Court’s majority was incorrect

In his dissent, signed by Justices Sotomayor, Kagan and Jackson, Justice Gorsuch made the case for Indigenous rights and the Navajo Nation. Gorsuch cited the 1868 Treaty of Bosque Redondo, which established the Navajo as a sovereign nation, and said the treaty’s provision to make the Navajo Reservation a “permanent home” implied also providing adequate water rights to meet the needs of the reservation. Gorsuch outlined the Navajos claim in the case as a request to simply quantify the Navajo Nation’s mainstem Colorado River water rights held in trust by the US government.[9] Gorsuch’s dissent accurately notes that the majority decision misses the main point brought forth by the Navajo Nation: to determine the amount of water required to make the Navajo Nation a permanent home. “If it turns out the United States has misappropriated those water rights,” Gorsuch wrote, “the Tribe wants the federal government to come up with a plan to set things right.”[10] The Justices in the majority sided with the states of Arizona, Colorado and Nevada, agricultural water providers and municipalities which argued that if the Navajo Nation had been successful in this case, the Department of the Interior would be required to consider the potential impacts on the Navajos unadjudicated rights in its daily operational decisions and build infrastructure to mitigate the Nation’s daily water struggles. The Tribe’s and dissent’s response is that asking the federal government to assess what it holds in trust and to ensure that it is not misappropriating water that belongs to the Tribe has nothing to do with building pipelines or farming land.[11]

The Winters Doctrine is a guidepost for understanding tribes’ and the nation’s federally reserved water rights. The United States had established the Fort Belknap Indian Reservation in Montana for the Assiniboine and Gros Ventre tribes, and subsequently sued Wyoming irrigators who built canals and reservoirs on the Milk River upstream from the reservation that would disrupt access for the reservation.[12] When the issue was heard by the Supreme Court, it recognized that the 1888 agreement that created the Fort Belknap reservation did not mention water, but observed that “[t]he lands were arid, and without irrigation, were practically valueless.” The justices concluded that the implication or inference was that Congress intended to reserve enough water for the tribes to have a “permanent home.”[13]

The Winters framework has been the precedent and bedrock for determining tribal water rights for the last 115 years yet, it is clear in the case of the Navajo Nation, that having the water rights does not ensure having access to the water rights or even a specified allocation. When on the ground, 40% of tribal residents are not able to drink, bathe, and utilize healthy water, this issue of access is paramount. If the Supreme Court had ruled in favor of the tribe, it would have begun the process towards fully assessing the water owed to Navajo tribal members. In a legal sense, the Winters Doctrine posits that no Indian reservation can be established without guaranteed water allocation, a standard necessary for reservations to be productive and livable. Taking into context, as Justice Gorsuch did in his written dissent, the United States government’s history of forcibly removing indigenous people from their homeland, coercively pushing treaty agreements written in English, and systematically altering tribal sovereignty and ways of life for indigenous peoples, the least we can do now is do right by the trust relationship established between the federal government and Tribes. Guided by the principle that the Winters Doctrine has continued to ensure the vitality of the historical promises of the United States to reserve livable homelands for Tribal Nations by securing the water rights necessary to fulfill the purposes of those reservations, the United States’ trust duties to Tribal Nations should be followed through with federal action to make good on these promises.[14]

This idea was central in the Tribes assertion and clearly stated in the amicus brief filed by thirty-seven tribal governments, the National Congress of American Indians (NCAI), the Affiliated Tribes of Northwest Indians, and the San Luis Rey Indian Water Authority: “Applying the canons of construction this Court has developed as part of its federal Indian law jurisprudence, as well as the history and circumstances surrounding the creation of each individual reservation, the Winters Doctrine holds that the United States promised to provide water sufficient to fulfill the purposes for which the reservations were created.” [15]

Next Steps for the Navajo Nation

Disappointment in the United States federal government is nothing new for the tribes of the United States, and this Supreme Court decision can be added to that list for the Navajo Nation. For decades, the Navajo Nation has used multiple legal challenges to gain clarity on their non-adjudicated water rights, and once again, they are being told to look to other sources for an answer. As suggested by the majority in the Supreme Court decision, perhaps a legislative solution may be the Nation’s best next step. Earlier this year, the Biden Administration allocated $580 million to implement tribal water settlements across the Country. In announcing that investment, Secretary of the Interior Debra Haaland observed that the funding was necessary for “the Interior Department [to] continue to uphold our trust responsibilities and ensure that Tribal communities receive the water resources they have long been promised… .”[16] Infrastructure promises like Bipartisan Infrastructure Law and Reclamation of Water Settlements Fund have the potential to improve water realities in the Navajo Nation, but tribes should not, and are not, sitting back to let the federal government make decisions on their behalf. On November 13, 2023, the Native American Rights Fund and the Walton Family Foundation announced the creation of the Tribal Water Institute. The goal of the institute is to provide Tribal Nations resources and training to advocate for their water rights and develop water policy solutions. “Tribal Nations must be included in water decision making,” said Moira Mcdonald, Environment Program Director of the Walton Family Foundation. “Tribal Nations often have the most senior water rights in the Colorado River Basin and throughout the West. But they are under-represented in federal and state policy discussions. That is unjust and unwise. We need to listen to their voices. More inclusive decision-making will lead to greater benefits for the environment and society as a whole.”[17] Building a robust network of tribal leaders with knowledge on water law, policy and regulations will be a key step for ensuring water in Indian Country for generations to come.

References

[1] Providing Safe Drinking Water in Areas with Abandoned Uranium Mines | US EPA. (2023, May 16). Environmental Protection Agency. Retrieved November 14, 2023, from https://www.epa.gov/navajo-nation-uranium-cleanup/providing-safe-drinking-water-areas-abandoned-uranium-mines

[2] 21-1484 Arizona v. Navajo Nation (06/22/2023). (2023, June 22). Supreme Court. Retrieved October 27, 2023, from https://www.supremecourt.gov/opinions/22pdf/21-1484_aplc.pdf

[3] Schick, T. (2023, June 26). Supreme Court Keeps Navajo Nation Waiting for Water. ProPublica. Retrieved October 27, 2023, from https://www.propublica.org/article/supreme-court-navajo-nation-water-rights-scotus

[4] Fletcher, M. L. (2023, March 17). As drought persists in the west, justices to consider Navajo Nation’s rights to Colorado River. SCOTUSblog. https://www.scotusblog.com/2023/03/as-drought-persists-in-the-west-justices-to-consider-navajo-nations-rights-to-colorado-river/

[5] Navajo Nation v. U.S. Dep’t of the Interior, 996 F.3d 623. (2021, April 28). Casetext. Retrieved November 14, 2023, from https://casetext.com/case/navajo-nation-v-us-dept-of-the-interior-5

[6] Id.

[7] 21-1484 Arizona v. Navajo Nation. (2023, June 22). Supreme Court. Retrieved October 27, 2023, from https://www.supremecourt.gov/opinions/22pdf/21-1484_aplc.pdf

[8] Id.

[9] Id.

[10] Arizona v. Navajo Nation, 21-1484, 32. (2023, June 22). Supreme Court. Retrieved October 27, 2023, from https://www.supremecourt.gov/opinions/22pdf/21-1484_aplc.pdf

[11] Arizona v. Navajo Nation, 21-1484, 43. (2023, June 22). Supreme Court. Retrieved October 27, 2023, from https://www.supremecourt.gov/opinions/22pdf/21-1484_aplc.pdf

[12] Winters v. United States, 207 U.S. 564 (1908). (n.d.). Justia US Supreme Court Center. Retrieved November 21, 2023, from https://supreme.justia.com/cases/federal/us/207/564/

[13] Glennon, R. (2023, June 24). US not required to ensure water access for Navajo Nation: Supreme Court. Fast Company. Retrieved October 29, 2023, from https://www.fastcompany.com/90914251/navajo-nation-water-access-water-rights-supreme-court

[14] Brief of Tribal Nations and Indian Organizations as Amici Curiae in Support of the Navajo Nation. (2023, February 8). Retrieved November 21, 2023, from https://www.narf.org/nill/documents/20230208az-v-navajo-amicus-tribes.pdf

[15] Brief of Tribal Nations and Indian Organizations as Amici Curiae in Support of the Navajo Nation, 2. (2023, February 8). Retrieved November 21, 2023, from https://www.narf.org/nill/documents/20230208az-v-navajo-amicus-tribes.pdf

[16] Bipartisan Infrastructure Law Supports $580 Million Investment to Fulfill Indian Water Rights Settlements. (2023, February 2). DOI.gov. Retrieved November 21, 2023, from https://www.doi.gov/pressreleases/bipartisan-infrastructure-law-supports-580-million-investment-fulfill-indian-water

[17] First-of-its-Kind Tribal Water Institute. (2023, November 13). Native American Rights Fund. Retrieved November 21, 2023, from https://narf.org/tribal-water-institute/