Future of Navajo water rights heard in Supreme Court

WINDOW ROCK

The Supreme Court seemed divided on Monday as it weighed a dispute involving the U.S. government and the Nation’s quest for water from the Colorado River.

Arizona v. Navajo Nation is complicated, and it appeared a majority of the nine-justice court could allow the Nation’s claim to move forward in a limited form, with much depending on the vote of conservative Justice Amy Coney Barrett.

The Nation argued that it didn’t have enough water and that the federal government was at fault.

Unraveled treaties

Water rights amongst many Indigenous tribes continue to be held in the tangles of courts from unraveled treaties over the last hundred years.

These aggregated cases before the Supreme Court scratch the surface of the complex myriad of original treaties and how the current government interprets them.

The disputes in the highest court are to determine if the U.S. has a legal obligation to the Nation that can be enforced through the courts under the Navajo Treaty of 1868 that promised Diné Bikéyah an irrevocable homeland.

Frederick Liu, the assistant to the solicitor general, began his opening argument, wasting no time in setting the climate on the federal views of the claims of Diné Bikéyah.

“The dispute is whether the U.S. owes the Navajo Nation a judicially enforceable affirmative duty to assess the tribe’s water needs, develop a plan to meet them, and then carry out that plan by building water supply infrastructure on the reservation, the answer to that question is no,” Liu said.

Liu adds to the federal hesitance of the Navajo’s claims, saying, “It is about water for an ongoing and indefinite basis, not for a limited period of time, and the dollar amount, there is no limit.”

The U.S. Supreme Court case Winters v. United States (1908) clarified water rights for Indigenous reservations, established a doctrine to define the rights to water and set a standard for the U.S. to acknowledge Indigenous water rights to sustain survival and self-sufficiency.

Winters rights are defined by the federal government and enforced and controlled by federal law when reservations were established by a treaty, statute, or executive order, and water rights were not specifically mentioned. A reservation of water rights was implied, and these water rights apply to water sources that are either within the reservation or bordering it.

According to The Native American Rights Fund, 37 tribal governments, the National Congress of American Indians, the Affiliated Tribes of Northwest Indians, and the San Luis Rey Indian Water Authority filed an amicus brief Feb. 8 supporting the Navajo Nation in Arizona v. Navajo Nation.

The brief urges the Supreme Court to respect the Winters water rights doctrine, which the court established 115 years ago, and enforce the tribe’s trust relationship with the U.S. concerning water for the Nation.

Water is necessary

In the Winters decision, the court recognized that when the U.S. creates an Indian reservation, it also reserves the water necessary to fulfill the purposes of the reservation.

“In creating a reservation, the federal and tribal governments understood that adequate water is essential to the purpose of a homeland,” explained Heather Whiteman Runs Him, the director of the Tribal Justice Clinic at the University of Arizona Rogers College of Law.

“This has been settled law for over a century, and it is absolutely the case for the Navajo Nation,” she said.

Shay Dvoretzky, the attorney arguing on behalf of the Navajo Nation, began his oral arguments starting with the treaties the Senate ratified with the Nation. The 1868 treaty that the U.S. promised the Navajos a permanent homeland with both parties understanding the U.S. also promised the Navajos water it needed to sustain life and the desert-like conditions of the southwest.

“Those treaties are specific resources of law that give the Nation rights to water and impose duties on the government to secure that water, but for years the U.S. has failed to fulfill that promise,” Dvoretzky said.

“We’re here because the U.S. says it doesn’t have to do anything to secure the water it promised, even though the U.S. also states it speaks for the Navajos as trustee of the Nation’s water rights,” he said.

Dvoretzky pointed out a vast comparison between an average person’s water usage in the Nation, using a daily total of only 7 gallons of water a day to the national average usage at a whopping 80 to 100 gallons, highlighting the gap and need for water on the Nation as its people lack the resources to obtain water and are left to conserve what they collect in between water hauling trips.

“The Nation and its people feel the water shortage in the southwest,” Dvoretzky said. “The Nation asks only that the U.S., as trustee, assess its people’s needs and develop a plan to meet them in consultation with the Nation.”

He continued, “As the court recognized in Winters, if you have a permanent homeland for agriculture, both of which are features of the reservation, you can’t carry out the purpose of agreement without also having water, so it didn’t need to be spelled out because it was an essential component of fulfilling the purpose of the agreement.”

Defending water rights

Six of the nine Supreme Court justices hold the conservative majority with a weighted vote hinging on Barrett.

Barrett hearing the pleas from both sides and asking direct, firm, and thorough questions, illuminated the task ahead for Diné Bikéyah in its ability to protect and defend its water rights.

Barrett said conceptually, she is trying to decide if the Nation’s argument feels more like a breach-of-contract claim versus a breach-of-trust, asking Liu if there is a claim that the Navajo could have brought for breaching the treaty.

Liu responded, “If the Navajo Nation wanted to take advantage of common law trust principles, for example, if they tried to hold us to a duty of prudence of duty of loyalty, then they would have to prove something more than just any old treaty duty.

“They’d have to show that that duty also bore the characteristics of a conventional fiduciary relationship,” he said.

Justice Neil Gorsuch gave a synopsis to Liu that the Navajo were not allowed in the Arizona v. California case or at any other time to assert Winters rights and have any rights in the mainstream adjudicated because the government opposed the Nation’s motion to intervene in Arizona v. California.

He continued to explain that the consent decree suggests it does not resolve the rights of any Indian tribe except as expressly provided in the decree, which does not include the Navajo, leading him to question Liu if the Navajo intervene, would the government oppose it again.

Liu responded to Gorsuch, saying, “We might oppose it.”

“That’s partly why the Navajo can bring a motion to reopen the decree if they want to,” Liu said, to which Gorsuch replied, “You’re going to oppose it again. You just made that clear standing at the lectern.”

Barrett told Liu, “Seems to me that the strongest arguments made on behalf of the Navajo are in the nature of you breached the treaty, it was broken promises, you promised us (Navajo) a permanent home, and you’re not.”

Support from Navajo

A show of support from local naat’áanii from Diné Bikéyah attended the hearings in Wáshindoon.

Navajo Nation President Buu Nygren, Vice President Richelle Montoya, Speaker Crystalyne Curley, Council delegates Eugenia Charles-Newton and Brenda Jesus, and Navajo Nation Attorney General Ethel Branch made the journey to Wáshindoon to represent the future of Diné in this critical case.

Former Navajo Chairman Peter MacDonald and Navajo Nation Water Rights Commission Chair Joelynn Ashley also attended.

In a public press release on social media, Curley expressed her views and shared reflections from her childhood concerning accessible water then and how it hasn’t changed in the current day.

“This case goes beyond the fiduciary duty of the federal government. The outcome of this hearing may determine the livelihood of our Navajo people now and for all future generations,” Curley said. “The right to water centers on our right to a permanent homeland through our treaties and the prayers of our ancestors since time immemorial.”

“As a child, I grew up in a home without running water, and to this day, we still have over 30 percent of our people who don’t have access to clean running water in their homes,” she said. “Our leaders long ago fought for our right to our homeland, including the right to water, the right to life.”

The U.S. Supreme Court will hear closing arguments next month and expects to deliver a ruling in June 2023.

---