Supreme Court fights questions over Navajo people’s water rights

On Monday, the U.S. Supreme Court heard arguments in a case that could change the already tense struggle for water rights in America’s scorched Southwest.

For more than 20 years, the Navajo Nation has fought for access to water from the lower Colorado River, which flows directly along the reservation’s northwestern boundary.

TThe Navajo Reservation spans 27,000 square miles in Arizona, Utah, and New Mexico. Nearly a third of the 170,000 people living there do not have access to clean and reliable drinking water, the tribe says.

Thousands of people who live without running water have to travel miles to fill barrels and jugs with water for drinking, cooking, bathing and cleaning. Others rely on unregulated wells.

But the issue of access to the Colorado River is extremely controversial.

A decade-long drought exacerbated by climate change has created the driest conditions in the American Southwest in centuries. The region’s water supply is shrinking due to a sharp increase in population and agricultural production.

The river, which provides water to 40 million people throughout the southwest, has already been blocked. The seven states that rely on the river have long been involved in litigation over the reservoir. Recently, they have struggled to reach an agreement on how to reduce water consumption.

But the Navajo says they cannot fully represent their interests in disputes over water. Instead, they say they have been blocked in court by the US federal government, which claims to represent tribal interests in water disputes.

The tribe’s claim stems from federal policies that forcibly moved tribes and their citizens west and onto reservations, including the 1868 Navajo Treaty, said Heather Tanana, a law professor at the University of Utah.

“When they created these reservations, they promised that these lands would become a permanent home for the tribe and its people,” said Tanana, a citizen of the Navajo Nation. “And I think everyone will agree that without water there can be no homeland.”

Both the tribe and the US government agree that Indian reservations, including the Navajo, have a right to water.

Now the Supreme Court must decide how far the federal government’s duty to preserve this right extends.

“Is the federal government the trustee and the Navajo Nation the beneficiary so that the normal principles of trust law can apply?” said Gregory Ablawski, who specializes in federal Indian law at Stanford Law School. Usually, he explained, the beneficiary can sue the trustee for mismanaging the trust—in this case, the water.

Sympathy for the tribe’s plight came from Judge Neil Gorsuch, a frequent Native rights advocate who often clashed with his fellow Conservatives over Indian treaty cases.

“Can I make a good breach of contract claim against someone who promised me a permanent home, the right to farm and raise animals, if it turns out to be the Sahara desert?” Gorsuch asked during Monday’s oral argument. (No, the government lawyer replied.)

The US argued that a general decision in favor of the Navajo people could force the federal government to assess the tribe’s water needs and build water infrastructure. These duties belong to the tribe, the government says.

“Just as the 1868 treaty did not oblige the United States to build roads or bridges, cut timber, or mine coal, the 1868 treaty did not oblige the United States to build pipelines, pumps, or wells to carry water,” said the assistant general. Attorney Frederick Liu, addressing the court.

Several court conservatives, including Judges Samuel Alito and Brett Kavanaugh, were sensitive to those concerns during Monday’s hearing, prompting reassurances from Shai Butler, a Navajo Nation attorney.

“The government is hypothesizing a parade of horrors where the government will have to build pipelines across miles and miles and miles of territory,” Dvoretsky said. “We’re not talking about anything like that.”

States that rely on the Colorado River, including Arizona, California and Nevada, also oppose the tribe’s efforts, saying diversion of water to the reservation will come at the expense of their states’ population and economy.

According to experts, a positive decision will not immediately solve the tribe’s problems with access to water. But it would allow the tribe’s legal efforts around the Colorado River and other waterways to move forward.

“Not enough water. But that doesn’t mean that the Navajo people don’t have real rights to be secured, that they should be able to develop their water and then play on par with all the other stakeholders in the pool,” said Tanana of the University of Utah.