Colorado tribes are worried that a U.S. Supreme Court ruling last month against the Navajo Nation in a Colorado River water rights case may narrow the federal government’s broad, historic responsibility to provide them with aid.
In Navajo Nation vs. Arizona Dept. of the Interior, the tribe was seeking to sue the federal government to require it to assess the tribe’s water rights along the Colorado River and help to create a plan to develop them for the 170,000 tribal members who live there.
Instead, in a 5-4 decision released June 22, the court ruled the federal government isn’t responsible for such actions, saying the treaties between the U.S. and the tribe didn’t explicitly require it.
“The 1868 treaty did impose a number of specific duties on the United States, but the treaty said nothing about any affirmative duty for the United States to secure water,” Justice Brett Kavanaugh wrote in the majority opinion.
Tribal leaders say the decision is a step toward diminishing the overall responsibilities of the federal government outlined in the treaties. That could impact how much the U.S. government is required to help with tribal projects related to other natural resources and climate resiliency work, said Daniel Cordalis, tribal partnership manager for the Colorado River Sustainability Campaign.
“What a permanent homeland for tribal members means now, it’s pretty vague,” said Cordalis, who is also a member of Navajo Nation. “Tribes might find it a lot harder to get the United States to help them and work with them on some of these projects, if they don’t have to threaten the power of a trust claim behind them.”
The Navajo Nation reservation is the largest in the U.S., spanning 16 million acres across parts of Arizona, New Mexico and Utah and bordering southwest Colorado.
A threat to treaties
The decision from the Supreme Court is somewhat in conflict with how the Biden administration has handled other tribal relations, said Peter Ortego, general counsel for the Ute Mountain Ute Tribe, which is in southwestern Colorado and northern New Mexico and neighbors the Navajo Nation in the Four Corners region.
“It looks like the federal government is respecting that trust responsibility and trying to do something positive,” he said, “and now the courts have said they don’t have that trust responsibility.”
The opinion could change the way the federal government sees its responsibility to other tribes, Ortego said. The federal government recognizes 574 American Indian tribes and Alaska Native entities in the U.S.
“We shouldn’t be playing games with these things,” he said. “This was a permanent situation, the nation was at war and now they’re saying the treaties signed to get out of that war are not worth more than the paper and ink they’re written on.”
Leaders of the Southern Ute Tribe, which has a reservation in southern Colorado, said they would be working to enact legislation to ensure the trust responsibility is upheld.
The opinion “is reflective of this court’s continued assault on the trust responsibility that the federal government owes to tribes,” the Southern Ute Tribe wrote in a statement.
Tribes already felt their treaties weren’t respected and the decision takes that a step further, Ortego said.
“What happens if the treaties go away?” he said. “If (tribes) don’t feel they have the protections of those treaties, what options do they feel like they have?”
A “simple ask”
The case began in 2003 when the Navajo Nation sued the federal government, saying it had violated its trust agreement from an 1869 treaty to establish a “permanent home” by not protecting their nation’s water rights.
That case bounced around lower courts for years until it ended up in front of the U.S. Supreme Court. The case was argued in March.
Colorado joined Arizona, Nevada and parts of California in asking the court to rule against the Navajo Nation, arguing agreement with the tribe would undermine existing agreements for the Colorado River.
If the Navajo Nation wants access to water from the lower Colorado River now, Congress must act or the tribe needs to ask the Supreme Court to reopen a prior case that allocated water between states, said attorney Rita McGuire, who represented southwestern states that opposed the tribe, according to The Associated Press.
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Justices John Roberts, Clarence Thomas, Samuel Alito and Amy Barrett joined the majority opinion and Thomas also wrote a concurring opinion. Justice Neil Gorsuch wrote the dissenting opinion, which was signed by Justices Sonia Sotomayor, Elena Kagan and Ketanji Jackson.
Gorsuch argued that the court was rejecting a request the Navajo Nation never made.
“The Navajo have a simple ask: They want the United States to identify the water rights it holds for them. And if the United States has misappropriated the Navajo’s water rights, the Tribe asks it to formulate a plan to stop doing so prospectively,” he wrote.
The Navajo Nation can still conduct their own assessments of their water rights, but without the resources and help from the federal government.