on Mar 17, 2023
at 12:08 pm
The Little Colorado River Gorge on the border of the Navajo Nation reservation. (Victoria Ditkovsky via Shutterstock)
Thirty percent of Navajo Nation citizens have no running water. Navajos use 8-10 gallons of water a day, about a tenth of what the average American uses. Meanwhile, the water level at Lake Powell, the massive reservoir created by the Glen Canyon Dam on the Utah-Arizona border, is at historic lows, threatening its ability to generate power. The federal government has ordered the seven Colorado River states to reduce their water usage by one-fifth. After 23 years of drought, the desert southwest is in a water crisis.
The Navajo Nation reservation is about the size of Ireland or West Virginia, with large portions bordered by the Colorado River. Yet, the Navajo Nation does not have water rights to the main stem of the river. Over one hundred years ago, the Supreme Court found that the creation of Indian reservations arising from Indian land cession treaties in the arid west necessarily created Indian reserved water rights. These rights, known as Winters rights after the 1908 decision, ensure that a reservation has enough water to maintain its land.
Under western water law, which prioritizes first-in-time users, Indian water rights take priority over all others. After all, tribal nations were there first. The biggest water rights settlements of the last several decades would not be possible without the participation and consent of tribal nations. But the Colorado River adjudications and settlements are different because they are older, dating back to the early- to mid-20th century, a time when the United States asserted the power to make decisions for tribal nations on what water rights to claim. The United States never brought the Navajo Nation’s claim to water from the main stem of the Colorado River. Under Winters, Navajo water rights are likely to be enormous. They have been the elephant in the room of Colorado River water apportionment for a century.
Two decades ago, before the southwest water crisis reached its current state of urgency, the Navajo Nation sued the United States to require the government to assess Navajo water needs and develop a plan to meet those needs. After years of litigation and negotiation, the Nation prevailed in the U.S. Court of Appeals for the 9th Circuit. The federal government and the states of Arizona, Colorado, and Nevada, which intervened below, successfully sought Supreme Court review.
The first issue in Arizona v. Navajo Nation is whether the federal government breached a trust obligation to the Nation arising out of two treaties, dating back to 1849 and 1868. The second issue before the court is whether the relief sought by the Nation is foreclosed by the court’s 1963 decision and 1964 order in Arizona v. California, governing the apportionment of water from the Colorado River. Because these issues are jurisdictional, the Nation must persuade the court on both issues to prevail. A related issue arising from the so-called “Law of the River” – that is, the entire legal regime governing rights to the waters of the Colorado River – is whether the Nation’s claims are barred by the federal government’s previous assertion of water rights for the Nation.
The federal government’s duties to the Nation under the treaties
The federal government and tribal nations share federally reserved water rights in the western United States that arise from the cession of lands by tribal nations. Historically, the United States represents both federal and tribal reserved water rights, which take priority over all users (and are therefore very unpopular in the west). For tribal nations like the Navajo, water apportionment rights include the water needed to fulfill the purposes of Indian reservations, which are primarily agricultural. The federal government raised water apportionment claims of 25 tribal nations to the Colorado River in Arizona v. California, way back in 1952. However, although the Navajo Nation borders portions of the Colorado River, the federal government chose not to assert the Nation’s interests in the main stem of the river, instead claiming only Colorado River tributary water for the Nation. At the same time, the government also blocked the Nation’s efforts to intervene on its own behalf to make a claim to the main stem.
The Nation’s complaint, brought under Section 702 of the Administrative Procedure Act, asks the court to compel the Secretary of the Interior to determine the amount of water needed to fulfill the purposes of the Navajo Nation reservation beyond what is already appropriated under the Law of the River. The government argues that to prevail on a breach-of-trust claim, the Nation must point to a specific treaty, statutory, or regulatory provision that imposes a fiduciary duty on the United States to make that determination. For the government, the mere existence of Winters rights does not require the government to take the action demanded by the Nation.
The 9th Circuit rejected that argument, noting that the government relied on a very different kind of breach-of-trust cases, limiting monetary relief under federal waivers of immunity in the Tucker Acts. The Nation backs the lower court’s decision, asserting that the Winters rights guaranteed by the Navajo treaties of 1849 and 1868 supply the needed jurisdictional hook. They argue that the jurisdictional threshold under the APA is less demanding than statutes allowing for money damages.
Several “friend of the court” briefs support the Navajo Nation on this issue. The Coalition of Large Tribes points out that Congress has approved several major tribal water rights settlements, usually after the federal government made determinations on water necessary to fulfill the purposes of other Indian reservations, which it argues is all that the Nation is seeking at this point.
Whether the “Law of the River” forecloses the Nation’s claim
The Law of the River originated in 1922, when Congress approved an interstate compact between California, Arizona, and Nevada apportioning Colorado River water between those states. Arizona refused to ratify the 1922 compact. Instead, Arizona invoked the Supreme Court’s original jurisdiction in 1952 to adjudicate water apportionment. As a result, beginning in 1963, the Supreme Court has issued orders in the Arizona v. California matter establishing broad parameters for the apportionment of Colorado River water among the United States, seven states, other public and private waters users, and 25 tribal nations. The court retains jurisdiction over any modifications to the apportionment to this day. Federal statutes, treaties, and interstate compacts form additional portions of the Law of the River.
Arizona, Colorado, Nevada, and Utah claim that only the Supreme Court can grant the relief requested by the Navajo Nation. The 1964 Arizona v. California decree asserted exclusive Supreme Court jurisdiction over the water rights apportioned within that suit. In the view of the states and the federal government, this means that the Navajo Nation’s claim is barred because what the Nation is really claiming is an adjudication of its Winters rights to the main stem of the Colorado River.
The Nation disagrees, arguing that an APA claim to require the government to assess and act on the Nation’s water needs and rights is not a claim to re-open Arizona v. California. The 9th Circuit agreed with the Nation, perhaps believing that the United States could, theoretically, draw from federal water rights to fulfill its promises to the Nation without upsetting the current Colorado River apportionment.
A related issue raised below involves the possible preclusive effect of the federal government’s previous assertion of water rights for the Navajo Nation. Nevada v. United States elevated the principle of res judicata in western water rights adjudications. Nevada foreclosed tribal water rights claims made decades after a settlement between the United States and other water users when the federal government chose to bring only limited tribal water rights claims. Although the parties in the current stage of litigation have downplayed the res judicata issue, the issue may become critical on remand if the court affirms.
Only one amicus of note supports the states and federal government. Western Water Users and Trade Associations argue that an acknowledgment of the Navajo Nation’s rights to the main stem would threaten the stability of water rights throughout the west. Several western water law scholars with practical experience, by contrast, counter that western water law supports the Nation’s position. Additionally, the Digdeep Right to Water Project and the Utah Tribal Relief Foundation emphasize the pervasive water insecurity faced by Navajo Nation citizens.
For a narrow claim that would order the United States to merely assess the scope of the Navajo Nation’s water rights and draft a plan to implement them, this case is unusually dramatic. From the government’s perspective, the relief granted by the 9th Circuit is a serious violation of the separation of powers. The United States has effectively chosen not to act to study the Navajo Nation’s water rights, but the 9th Circuit’s order would require the government to take an action it has until now refused to take. Lurking in the background of this case is the larger question about whether tribal nations can sue the federal government to enforce the trust responsibility owed by the United States to Indians and tribes. There are therefore enormous stakes for western water law and for federal Indian law.