Supreme Court to weigh Navajo Nation water rights fight in Arizona
David G. SavageMarch 20, 2023
The Supreme Court will hear a major water rights dispute from Arizona on Monday to decide whether the federal government has broken its promises to the Navajo Nation for more than 150 years.
Nearly a third of the Navajo households do not have running water and must rely on water that is trucked in.
And for that, t T
he
y Navajo Nation b
lames the U.S. government for having breached its duty of trust that came with
an the treaty in
1868
treaty thatwhich
established their reservation in what is now
the
northeast
corner of
Arizona and smaller
portionsparts
of south
east
ern Utah and north
east
ern New Mexico.
That treaty “promised both land and water sufficient for the Navajos to return to a permanent home in their ancestral territory,”
attorneys for the Navajo Nationtheirattorneys
told the court. “Broken promises. The Nation is still waiting for the water it needs.”
But
The case comes before the justices
after during an era of drought in the West and
100 years
after litigation over execution of
the Colorado River
Compact as well as high court decrees
that divided
its
water
s
among seven
states including California, Arizona and Nevada.
It also comes in an era of drought in the West.
At issue now is whether the Navajo
s Nation
can press ahead with a lawsuit that seeks a federal plan to supply
its residents’their
unmet need for water.
They The Navajo Nation
won a preliminary victory in the 9th Circuit Court of Appeals in 2021, which said
itthey
had a claim for breach of trust, noting
that
the 1868 treaty referred to agriculture.
“The Nation’s right to farm reservation lands … gives rise to an implied right to the water necessary to do so,” the appeals court said. However, it stopped short of deciding whether this included “rights to the mainstream of the Colorado River or any other specific water sources.”
But in the fall,
the
Supreme Court agreed to hear appeals from both
the
Interior Department and Arizona that seek to toss out the 9th Circuit’s decision.
U.S. Solicitor Gen.
eral
Elizabeth B. Prelogar argued the 1868 treaty said nothing about water and established no specific duties for the government related to water. Moreover, the Navajo
s Nation hashave
been given water rights from two tributaries of the Colorado River, including San Juan River in Utah, she said.
Lawyers for Arizona, joined by the Metropolitan Water District of Southern California, said the high court’s decrees have allocated the waters from the lower Colorado River, and it is too late for lawsuits that seek new rights to the same water.
The cases are Arizona vs. Navajo Nation and Department of Interior vs. Navajo Nation.
