Arizona v. Navajo Nation, which gets the water?

WINDOW ROCK

Tribal water needs are to be met to sustain reservation living for Native people, but the Navajo Nation isn’t getting its water needs met.

That’s according to the Winters Doctrine, the foundation of tribal water rights.

On Monday morning, the Navajo Nation headed to the Supreme Court to present arguments as to why the Nation needed its water rights met by the U.S. government.

Frederick Liu, representing the federal parties, opened the oral argument by recognizing the tribe has every right to water. Still, it didn’t have the right to ask the government to consider its water, create a plan, and execute it.

“What the Navajo Nation cannot do, however, is to impose on the United States a duty that the government has never expressly accepted,” Liu said.

Liu stated that the Nation arguing with the breach-of-trust claim could not move forward as a valid argument because the Navajo Treaty of 1868 never referenced the federal government to account for water accessible by the tribe.

Responding to Liu’s argument, Supreme Court Justice Neil Gorsuch said the treaty had provisions about agriculture in which it was promised that the Navajo people would have a permanent home and the ability to farm animals.

Liu agreed with Gorsuch on the written words of the Treaty of 1868. Gorsuch said because the tribe needs water to sustain its way of living on the reservation through agriculture, it deserves water.

“No,” Liu said.

Rights to water

With what seemed like contradicting statements from Liu, it wasn’t just Gorsuch who was confused. Justice Elena Kagan asked for clarification on the argument.

“You start by saying that the Indians have rights to water and that they get them by virtue of having rights to land, having a reservation of this kind, and the rights to water just go along with that. Is that a matter of the treaty, or are you saying it’s something else, that the rights arise some other way?” Kagan asked.

Liu said that it’s not that the tribe doesn’t deserve water rights, and the breach-of-trust claim violation is that the tribe can’t ask to get duties carried out by the U.S. government.

Justice Sonia Sotomayor said, “They agreed to sit to a land that would permit them to return to agriculture, and the bargain they got in return was we, the United States, took away all of your other lands, we gave you this piece of land here, survive. Even if it turns into a desert condition, where you admit significant water needs on the reservation, the tribe can’t do anything about it.”

Liu agreed but continued to emphasize because of the treaties signed, the Navajo Nation decided to handle its own affairs, meaning it cannot ask the U.S. government to be held accountable for something like access to water on the reservation.

“And if we look at the status quo that they wanted to be returned to, it was a status quo in which they could support themselves,” Liu said. “It was not a status quo in – there never was a status quo in which the United States was supplying the Navajo Nation with water or water infrastructure.”

To clarify some of the confusion stated previously, Rita Maguire, the attorney representing states in the Lower Colorado Basin and who oppose the tribe’s claims, said that much of the federal reserved rights in the conversation come from the Winters Doctrine, which stems from a 1908 decision that states when Congress reserves land, it also reserves water sufficient to fulfill the purpose of the reservation.

Maguire said, “It is an implied right. There is no duty that attaches to Winters.”

Future needs of the nation

The Winters Doctrine rights provide the benefit of the doubt to Native American tribes in understanding treaties, including other treaties that include implied water rights, said Kagan.

Contradicting, Maguire said that in the argument, the land reserved for the Navajo people included again, sustaining themselves, with the intent from the federal government to secure enough water to maintain the reservation. There was no specific duty given to the government.

“Our argument is they cannot have a right to the Lower Colorado River until they come before this Court and receive an adjudicated (formal) right,” Maguire said.

Following the state and federal government arguments, attorney Shay Dvoretzky, arguing on behalf of the Navajo Nation, took the stand.

Dvoretzky provided two ratification references to the Treaty of 1868 that gave the Navajo people a permanent home.

“Both parties understood that in promising the Navajos their land, the United States was also promising them the water it needed to sustain life in the arid southwest. Those treaties are specific sources of law that give the Nation rights to water and impose duties on the government to secure that water,” Dvoretzky said.

Where the U.S. government never kept its promise, said Dvoretzky.

According to Dvoretzky’s argument, the average Navajo person living on the reservation uses 7 gallons a day when the national average is 80 to 100 gallons a day per person, and the Navajo people continue to feel and see the drought penetrating their homelands.

Dvoretzky said, “The United States thinks that it alone decides whether it has made good on its promises. But that’s not how promises work.”

Kagan said the government’s argument includes the agreement that the Navajo Nation should be assured water, but it is not responsible for carrying out those duties on the reservation.

Dvoretzky disagreed, saying it is the government’s duty because of the case Arizona v. California, in which Arizona denied the Nation’s interference saying Arizona is in charge of the Nation’s water.

“So, the United States is controlling these Winters rights and, in certain instances, like Arizona versus California, blocking the Nation from asserting those rights for itself,” Dvoretzky said.

“The Nation asks only that the United States, as trustee, assess its people’s needs and develop a plan to meet them in consultation with the Nation,” she added.

Kagan asked Dvoretzky, “Both of those are not spelled out in the contract. You know, both of those are implied rights and duties. So how do we choose between them?”

Referencing the government has two duties: one, to not interfere with Nation’s water, and two, to ensure the Nation has access to water.

So how does the Supreme Court decide on which to choose? asked Kagan.

Dvoretzky said to answer Justice Kagan’s question, they need to choose based on the understanding of the treaties at the time by the Navajo Nation and the treaties’ interpretation favoring the Navajo Nation.

“We would like to have a seat at the table to be a part of that, which we’ve been cut out from,” Dvoretzky said on behalf of the Navajo Nation.

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