The U.S. Supreme Court heard arguments Monday on a case that focuses on water access for the Navajo Nation but could impact battles for the resource across the West.
For 20 years, the Navajo Nation’s fight for water has been circulating through lower courts. The foundation of the case reaches back more than 150 years, involving the treaties that established the reservation, decades of court decisions and the United States’ legal responsibilities to the Navajo Nation. The state of Colorado and other tribes, including those with reservation land in Colorado, are keeping a watchful eye on the outcome.
“The United States thinks that it alone decides whether it has made good on its promises. But that’s not how promises work,” said Shay Dvoretzky, the attorney arguing on behalf of the tribal nation during oral arguments Monday. “A promise is a solemn duty, and the United States’ duty is to see that the nation has the water it needs and the United States promised.”
Conflicts over water distribution in the West are intensifying as the Colorado River Basin experiences its worst drought in 1,200 years. In the midst of the 23-year drought, almost a third of Navajo homes lack running water. Spanning Arizona, New Mexico and Utah, the reservation consists of 27,000 square miles and is slightly larger than West Virginia.
The average person on the Navajo reservation uses 7 gallons of water a day, Dvoretzky said. The U.S. average is 80 to 100 gallons. In New Mexico, the average is 81 gallons; Utah, 169; and Arizona, 146, he said.
While the tribe has finalized negotiations for some of its water rights, it is still trying to assess its water needs and secure its rights in other areas, including the lower Colorado River, which runs right next to the reservation.
In a 1964 Supreme Court case, the U.S. government, acting on behalf of tribes, secured water claims to the river for five tribes, not including the Navajo Nation. In 2003, the Navajo Nation sued the federal government as the tribe’s trustee, arguing that the government had failed in its trust obligation by not taking steps to provide water to the tribe.
The case was kicked around lower courts, and in February 2022, the Ninth Circuit Court of Appeals determined the Navajo Nation could move forward with its complaint. That’s when the Department of Interior and several states, including Colorado, asked the Supreme Court to consider the case. The court will hand down its opinions by the last day of its term, around the end of June.
Now, the justices are weighing key questions in the case. They must determine whether the Ninth Circuit has jurisdiction to allow the tribe to move forward with its claim to ask the federal government to make a plan to meet its water needs.
And, in a question with greater potential impact for other tribes, the justices will weigh whether the federal government is legally obligated in its role as trustee to assess the tribal nation’s water needs — and whether the tribe can sue the government for a breach of trust.
In ordinary trust law, someone can create a trust for a beneficiary, like a child or nephew, said Peter Ortego, general counsel for the Ute Mountain Ute Tribe. The trust comes with a whole set of rules, and the trustee manages it for the beneficiary.
“If those moneys are misspent, or those promises aren’t kept, that beneficiary can sue the trustees, the people who are managing the funds,” Ortego said. “They can say, ‘You didn’t manage it right, so now you need to fix it.’ That’s basically what this is.”
The Ute Mountain Ute and Southern Ute Indian tribes, the two tribes with reservation land in Colorado, filed a joint “friends of the court” brief in support of the Navajo Nation’s claim.
The tribes’ water rights in Colorado have been quantified and approved by Congress with court decrees saying their water rights are in the hands of the federal government as trustee. The Ute Mountain Ute Tribe is still going through court proceedings for water rights related to its reservation land in New Mexico and Utah.
The tribes argued that the case’s impacts might not be limited to just water. They could extend to the trust assets of every tribe and to the United States’ implied management duties for those assets. That could impact property record keeping, proper plugging and abandonment of orphaned oil and gas wells, and rights-of-way for utilities and broadband access.
“The worst outcome is that there is no trust responsibility at all, and only Congress can say when the executive branch has any obligation to a tribe at all,” Ortego said. “Then that way it’s going to come down purely to statute, and I think we’re going to have a hell of a nightmare if that happens.”
During oral arguments Monday, the Navajo Nation argued that a 1868 treaty promised the tribe a permanent homeland. The tribal nation’s treaties give it rights to water and impose duties on the government to secure water, Dvoretzky said.
The U.S. has not fulfilled that promise and argues that it doesn’t have to, even though it says it speaks for the Navajo Nation as trustee of its water rights, he said.
The tribe says the U.S. is legally required to assess its water needs, develop a plan to meet them, and then carry out that plan by building water supply infrastructure, said Frederick Liu, an assistant to the solicitor general representing the federal government.
The feds disagree, Liu said.
“Just as the 1868 treaty didn’t impose on the United States a duty to build roads or bridges or to harvest timber or to mine coal, the 1868 treaty didn’t impose on the United States a duty to construct pipelines, pumps or wells to deliver water,” he said.
The Navajo Nation is free to develop its own infrastructure, including drilling to access groundwater, the cheapest source of water on the reservation, Liu said during the oral argument.
That kind of argument was frustrating to Ortego, listening at home in Towaoc on the Ute Mountain Ute reservation.
“They don’t have the clout, the ability to do what the U.S. can,” he said. “Whatever ability the Navajo Nation has to do that, doesn’t mean every tribe does. Most tribes are very resource poor.”
The states argued that the tribe should never have been able to bring the claim in the first place, citing jurisdictional issues within the court system. They also said that a key court decision from 1908 gave tribes the right to water, but past court cases have not explicitly decided the scope of federal duties related to those rights.
“There is no need for this matter to proceed — or for this court to address the breach-of-trust issue — because the district court lacked jurisdiction to enter the relief the Navajo Nation requests,” the state of Colorado said in a brief submitted to the court.
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The Supreme Court justices homed in on the federal government’s implicit or affirmative duty to the tribal nation and the applicability of breach-of-trust or breach-of-treaty claims.
“Could I bring a good breach-of-contract claim for someone who promised me a permanent home, the right to conduct agriculture and raise animals if it turns out it’s the Sahara desert?” said Justice Neil Gorsuch.
Justices Samuel Alito and Brett Kavanaugh asked about the real-world impacts on other water users, like Arizona residents. Alito also asked how similar the Navajo Nation’s treaty is to other treaties related to adjacent bodies of water.
“Most treaties set aside a reservation that is intended to be a permanent homeland, and many treaties also have provisions that supply support for agriculture,” Liu said in response. “So, if this court were to conclude that there were judicially enforceable duties that arose out of provisions like that, I think we would be facing similar suits across reservations in the country.”
Nobody likes to be sued, and when the federal government is sued, especially by tribes, it tends to rely on the floodgates defense, said Melody McCoy, a staff attorney for the Native American Rights Fund. The fund helped draft a “friends of the court” brief supporting the Navajo Nation in the case.
“‘If you decide this case, you’re necessarily deciding something that is going to open the floodgates to more tribes suing us,’” she said, explaining the defense. “That’s not unique to the United States; that’s a common litigation defense.”
The impacts on the Navajo Nation and other tribes will depend on the Supreme Court’s justifications for its decision, McCoy said.
It’s unusual for the court to take a case that applies only to a single tribal nation. Typically, the court makes decisions that apply more broadly to multiple tribes.
But it might choose to narrow its scope to water, as opposed to other resources that the U.S. holds and manages in trust for tribes, like oil and gas, timber, sand and gravel, minerals and money.
“What the court is going to say is something about the trust relationship between the U.S. and tribes,” McCoy said. “When the tribe is saying that the U.S. as trustee has not fulfilled its trust, what remedies are available to tribes as beneficiaries of the trustee relationship?”
For Ortego, the Ute Mountain Ute tribal lawyer, the fact that the federal government was, again, arguing against keeping its promises to tribes was “an embarrassment to the country.”
“The United States, on what it gleefully calls Manifest Destiny, invaded the western half of this country and forced the people who were already there onto lands that were sometimes not even their original lands … and made promises to them,” he said. “And to this day, (the government) is fighting those promises to the point that they will even go in front of the United States Supreme Court and argue that those promises don’t mean anything.”