Supreme Court denies Navajo Nation water rights claim

By: - June 22, 2023 1:31 pm

A tap drips water at a spigot on land of the Navajo Nation in the town of Thoreau on June 06, 2019 in Thoreau, New Mexico. Due to disputed water rights and other factors, up to 40% of Navajo Nation households don’t have clean running water and are forced to rely on weekly and daily visits to water pumps. The problem for the Navajo Nation, a population of over 200,000 and the largest federally-recognized sovereign tribe in the U.S., is so significant that generations of families have never experienced indoor plumbing. Rising temperatures associated with global warming have worsened drought conditions on their lands over recent decades. The reservation consists of a 27,000-square-mile area of desert and high plains in New Mexico, southern Utah and Arizona. Photo by Spencer Platt | Getty Images

The Navajo Nation continues its fight for water after the U.S. Supreme Court ruled Thursday that the United States has no treaty obligation to identify and account for the Navajo Nation’s water rights in the Colorado River.

The Supreme Court indicated that the 1868 treaty between the Navajo Nation and the federal government contained no language saying that the government was responsible for helping the Navajo Nation secure water rights.

“The 1868 treaty reserved necessary water to accomplish the purpose of the Navajo Reservation,” Supreme Court Justice Brett Kavanaugh said in the opinion. “But the treaty did not require the United States to take affirmative steps to secure water for the Tribe.” 

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The 5-4 decision overturns the U.S. Court of Appeals for the Ninth Circuit ruling from April 2021, indicating that an Arizona federal judge was wrong to dismiss litigation by the Navajo Nation without letting the tribe file an amended complaint that would ask the U.S. Department of the Interior to secure the Navajo Nation water rights.

In the court’s decision, Kavanaugh wrote that the 1868 treaty establishing the Navajo Nation included granting the tribe the land, minerals below the land’s surface, the timber on the land, and the right to use needed water on the reservation. 

The question in Arizona v. Navajo Nation concerns reserved water rights, Kavanaugh wrote, meaning that it focuses on the water rights implicitly reserved to accomplish the purpose of the reservation. 

“The Navajos’ claim is not that the United States has interfered with their water access,” Kavanaugh said. “Instead, the Navajos contend that the treaty requires the United States to take affirmative steps to secure water for the Navajos.”

The affirmative steps could include assessing the Navajo Nation’s water needs, developing a plan to secure the needed water, and potentially building pipelines, pumps, wells or other water infrastructure.

“In light of the treaty’s text and history, we conclude that the treaty does not require the United States to take those affirmative steps,” Kavanaugh said. “And it is not the Judiciary’s role to rewrite and update this 155-year-old treaty.”

Navajo Nation leaders expressed their disappointment in the Supreme Court ruling but said they would continue fighting for their tribe’s water rights. 

“As our lawyers continue to analyze the opinion and determine what it means for this particular lawsuit, I remain undeterred in obtaining quantified water rights for the Navajo Nation in Arizona,” Navajo Nation President Buu Nygren said. 

Nygren said his job as president of the Navajo Nation is to represent and protect the Navajo people and their land, but the only way that is achieved is by securing water rights to the Lower Basin of the Colorado River.

The Navajo Nation has the largest tribal land mass in the country, consisting of 27,000 square miles in Arizona, New Mexico and Utah. The tribe has more than 300,000 citizens, with about 175,000 living on the Navajo Nation.

The Navajo Nation established a water rights negotiation team earlier this year, according to Nygren, and they are working hard to settle the Navajo Nation’s water rights in Arizona. 

“I am confident that we will be able to achieve a settlement promptly and ensure the health and safety of my people,” Nygren said. “And in addition, the health and productivity of the entire Colorado River Basin, which serves up to thirty tribes and tens of millions of people who have come to rely on the Colorado River.”

Speaker of the 25th Navajo Nation Speaker Council Crystalyne Curley said that long ago Navajo leaders fought for their people to be able to return to their homeland and have always fought to protect their rights, including water rights.  

“Through the sacrifices and prayers of our ancestors, we secured the right to have access to water based on our treaties,” Curley said. “Our leaders negotiated the terms of our treaties in good faith with the federal government.” 

“Today’s ruling will not deter the Navajo Nation from securing the water that our ancestors sacrificed and fought for — our right to life and the livelihood of future generations,” she added.

As climate change and increasing resource demands put additional stress on water supplies, Navajo leaders stated that the Navajo Nation’s battle for water rights is a critical reminder of the importance of protecting access to this essential resource for all communities.

The Navajo Nation’s suit received a wide range of support. 

In February, an amicus brief in support of the Navajo Nation was filed by 37 tribal governments, the National Congress of American Indians, the Affiliated Tribes of Northwest Indians and the San Luis Rey Indian Water Authority. 

The brief urged the Supreme Court to respect the Winters water rights doctrine and enforce the trust relationship under which the United States has an obligation to ensure water for the Navajo Nation. The Winters doctrine assures water rights for tribal nations to ensure their tribal lands are livable and productive.

“Water is necessary for all life, and when our ancestors negotiated agreements with the United States to secure our lands and our protection, water was understood and still is understood to be inseparable from the land and from our peoples,” NCAI President Fawn Sharp said.

“Today, the Supreme Court has once again assisted in the United States’ centuries-long attempts to try to get out of the promises they have made to Tribal Nations by stating that treaties only secure access to water but do not require the United States to take any steps to protect or provide that water to our people,” Sharp added.

The Native American Rights Fund noted that in the ruling, the Supreme Court agreed that Tribal Nations have water rights under the Winters doctrine. Nevertheless, the court concluded there was no obligation to take steps to secure or even identify the water needed for the tribal land.

“The U.S. government excluded Navajo tribal citizens from receiving a share of water when the original apportioning occurred, and today’s Supreme Court decision for Arizona v. Navajo Nation condoned this lack of accountability,” NARF Executive Director John Echohawk said. 

“Despite today’s ruling, Tribal Nations will continue to assert their water rights, and NARF remains committed to that fight,” Echohawk added.

In the court’s dissenting opinion, Supreme Court Justice Neil Gorsuch wrote that the court rejected a request the Navajo Nation never made. He indicated the case was not about compelling the federal government to take affirmative steps to secure water for the Navajo Nation.

“Respectfully, the relief the Tribe seeks is far more modest,” Gorsuch said, noting that the court does agree that the Navajo Nation received enforceable water rights by treaty. 

But he added that the U.S. holds some of those water rights in trust, and the extent of those water rights have never been assessed. 

Adding those pieces together, Gorsuch said the Navajo Nation made a simple request.

“They want the United States to identify the water rights it holds for them,” Gorsuch wrote. “And if the United States has misappropriated the Navajo’s water rights, the Tribe asks it to formulate a plan to stop doing so prospectively.”

Gorsuch indicated that there is nothing remarkable about any of this, and he would affirm the Ninth Circuit’s judgment and allow the Navajo Nation’s case to proceed.

Since the federal government does hold some of the Navajo Nation water rights in trust, Gorsuch wrote that “the government owes the tribe a duty to manage the water it holds for the tribe in a legally responsible manner.”

In this lawsuit, Gorsuch wrote that the Navajo Nation is asking the United States to fulfill part of that duty by assessing what water rights it holds for them. 

“The government owes the Tribe at least that much,” Gorsuch wrote.

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Shondiin Silversmith
Shondiin Silversmith

Shondiin Silversmith is an award-winning Native journalist based on the Navajo Nation. Silversmith has covered Indigenous communities for more than 10 years, and covers Arizona's 22 federally recognized sovereign tribal nations, as well as national and international Indigenous issues.

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