After 20 years of battling for the right to draw water from the Colorado River, the Navajo Nation takes its case to the U.S. Supreme Court on Monday.
The river, which is in danger of collapsing under the strain of drought and overuse, runs along the border of the Navajo Nation in northern Arizona. But the tribe has never had a right to use that water on its reservation.
Before the Supreme Court on Monday, the Navajo Nation will argue the federal government has failed to live up to its duty to provide the tribe with an adequate supply of water.
“In mainstream discourse, we have been talking about depletion of the Colorado River, the reservoirs, the water and how much everybody has to cut back,” says Andrew Curley, a professor in the school of geography at the University of Arizona, and a member of the Navajo Nation. “Well, we’ve been cutting back for more than 100 years because we have no access or rights to the Colorado River, even though we’ve been living here before the United States was an idea.”
The Winters Doctrine
In 1908, the Supreme Court decided a case that became known as the Winters Doctrine. It made clear that when the government creates an Indian reservation, it also reserves the water necessary to live there.
The Navajo Nation’s lawyers wouldn’t speak on the record, but they’ve said the government has not met that responsibility.
The Navajo Nation spans a high-desert plateau in northern Arizona, parts of Utah and New Mexico. Up to a third of its 165,000 residents have no indoor plumbing, and many people must drive for miles over rough roads to fill up 55-gallon drums of water.
“What the Navajo Nation is asserting is that the United States has a responsibility to do something to move the ball forward enabling Navajo people to have access to safe, secure sources of water,” says Heather Whiteman Runs Him, an attorney who filed an amicus brief on behalf of 37 tribes in support of the Navajo Nation. “That’s part of the trust responsibility of the federal government.”
That breach-of-trust claim is at the heart of today’s hearing at the Supreme Court after the 9th Circuit Court of Appeals allowed the tribe’s case to move forward.
The litigation began all the way back in 2003.
How the states will respond
Lawyers for the tribe are not asking for a direct allocation of river water. Instead, they want the government to officially assess the tribe’s need for water, and to consider that need as it manages the river.
The legal approach that the Navajo Nation is taking, “which is following this breach-of-trust-claim against the government, is not really what they’re seeking,” says Rita Maguire, who will argue against the tribe on behalf of Arizona, Colorado, Nevada and several California irrigation districts. “What they’re seeking is a right to the Lower Colorado River.”
Maguire’s legal team doesn’t dispute that the Navajo Nation has a right to water. But she says a Supreme Court case from the 1960s — Arizona v. California — affirmed the tribe’s right to draw water from the tributaries, not the main branch of the river.
That case established guidelines for managing the river that are still in use today, and Maguire says that is especially relevant now.
In a time of unprecedented drought, the seven Colorado River Basin states are fighting over their share of water, while the Department of the Interior has warned that without deep cuts the entire system is in danger of collapsing.
“Papers are thick with articles about the fact that both Lake Powell and Lake Mead are at record lows,” says Maguire, who argues that a ruling in favor of the Navajo Nation will put more strain on the system. “The [Interior] Secretary is going to have to frankly take into consideration the Navajo’s interest before parties that actually have had vested rights in the river for decades.”
If the tribe wants to relitigate the decision from the 1960s, it needs to take that up with the Supreme Court in a separate case, says Maguire. For its part, the federal government claims there is no specific law or treaty that requires them to do what the tribe is asking for.
What’s at stake
If the Supreme Court justices rule broadly against the tribe, it could undermine the 1908 Winters Doctrine, according to Daniel Cordalis, a tribal water-rights attorney and a member of the Navajo Nation. “The fear of getting things in front of the court is that you don’t know where any court is going to stop. What we have left of our rights is so important that having them subject to scrutiny is scary.”
But a narrower ruling could have implications, too. Cordalis says the case could redefine or weaken the obligations the federal government has with tribes across the country, including how it protects tribal rights to healthcare, education, or fisheries.
“Any tribal case that goes before the Supreme Court, everyone is just on pins and needles,” Coradlis says.
Meanwhile, tribes, states and the federal government are preparing for another round of difficult negotiations over the management of river’s reservoirs in times of drought. Several of the existing frameworks expire at the end of 2026.
University of Wyoming law professor Jason Robison says tribal water rights, many of which have not been fully settled by the courts, must be considered when the new management rules are written up. “To do otherwise would be myopic,” says Robison, who also serves on the Water and Tribes Initiative in the Colorado River Basin. “To act like those water rights don’t exist when drafting the new rules not only would be foolish, it would be a perpetuation of water colonialism in the Colorado River Basin.”
This article was originally published on WBUR.org.
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