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The Navajo Nation Fights for Water Rights in the Supreme Court.pdf (75.69 kB)

The Navajo Nation Fights for Water Rights in the Supreme Court

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posted on 2023-07-28, 18:30 authored by Grace Higgins

On March 20th, the Supreme Court heard a case regarding the Navajo Nation’s water rights. Approximately one-third of the Nation’s population does not have access to clean drinking water [1]. Lack of access to water affects almost every part of life in the Nation, from cooking to healthcare.

In 2003, the Nation filed suit against the U.S. Department of Interior, the Secretary of the Interior, the U.S. Bureau of Reclamation, and the Bureau of Indian Affairs in the District Court of Arizona. They alleged the failure to determine the Nation’s water necessities violated the National Environmental Policy Act (“NEPA”) and constituted a breach of trust between the U.S. government and the Nation [2].

The Nation’s claims were based on an 1849 treaty, an 1868 treaty, and previous rulings by the Supreme Court. The 1849 treaty states the U.S. government would act to “secure the permanent prosperity and happiness” of the Navajo people [3]. The Nation argues this implies the government owes them a duty to ensure sufficient water resources. The 1868 treaty includes articles with agricultural provisions and states the reservation would be the tribe’s “permanent home” [4]. The Nation argues that agricultural abilities and a “permanent home” rely on water access, so the government is obligated to secure water for the tribe.

The Nation also cites Winters v. United States in support of its claim. Winters established that when Congress reserves land for a reservation, sufficient water is also implied with the creation of a reservation [5]. The Nation argues under Winters that the government has a duty to provide them with sufficient water.

The government argues the Nation has not identified a specific commitment of the government to provide the Nation with water. In United States v. Jicarilla Apache Nation, the Supreme Court ruled that a trust relationship between the government and a tribe requires the government’s explicit acceptance of particular duties [6]. The government argues the Nation has not identified a specific trust relationship with the government to provide water.

The Nation borders the Colorado River, a valuable water source for the western United States. If the U.S. government were to asses the Nation’s water rights, they would likely determine it is necessary to provide the Nation with water from the river. However, the Supreme Court has already allocated all of the Colorado River’s water under Arizona v. California to Arizona, California, Nevada, and other indigenous reservations [7].

Any claim involving Arizona v. California also falls under original jurisdiction, meaning the case has to be tried directly at the Supreme Court. After the Nation’s case reached the Ninth Circuit Court of appeals, it was remanded to the district court because the appellate court did not believe the Nation had substantial claims under the NEPA. The district court ruled it did not have the authority to rule on the case due to Arizona v. California’s original jurisdiction. The case reached the Court of Appeals again, where the judges reversed that determination, but the district court’s decision added another layer to the Nation’s case [2]. If it is determined that the Nation’s case falls under Arizona v. California, it has to be re-tried in the Supreme Court.

The Court of Appeals also ruled the government has a fiduciary duty to ensure adequate water to the Nation under Winters and the two treaties. The petitioners appealed the case and it was consolidated into Arizona v. Navajo Nation, after externalities, like the state of Arizona, joined the case [2].

The Supreme Court appears split over the case. During oral arguments, the three liberal justices and Justice Gorsuch appeared sympathetic to the Nation’s case [8].

Gorsuch has more practice dealing with native law because he was a federal judge in the western U.S. for many years [9]. In previous cases, he has sided with tribes despite the views of his fellow conservative justices.

Justices Alito, Thomas, and Roberts seemed cautious of ruling in the Nation’s favor as they asked more questions concerning the impact of the ruling in the Nation’s favor on surrounding states. Justice Barrett could be a toss-up in this case as she appeared skeptical of the government’s arguments but rules conservatively on many issues.

If the court decides in the Nation’s favor there are major implications for the future of water rights cases and water availability in western states. Other indigenous tribes may see a victory by the Nation as a means to pursue their water rights from the government. This would put more obligations on the government towards tribes. Ruling in favor of the Nation would also require the government to create a plan to supply sufficient water for the tribe. The government would likely source the water from the Colorado River which also provides water to California, Nevada, Arizona, and other reservations. Allocating water from the drought-stricken Colorado River to the Nation would take away resources from these other states and tribes.

A ruling against the Nation, though, would also have drastic consequences for the tribe. Without clean water, the Nation’s population will continue to suffer.

Whatever the Supreme Court rules, there will be drastic implications for the future of water rights in the United States.



American University (Washington, D.C.); Juris Mentem Law Review


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