Navajo Nation’s push for water rights splits justices on high court

WASHINGTON — A divided Supreme Court confronted on Monday the question of whether the government must do more to provide water for the Navajo Nation in northern Arizona.

And the answer, by the narrowest majority, appeared to be yes.

Most of the justices said they were wary of even considering plans to take more water from the mainstream of the drought-stricken Colorado River. But five of them, led by Justices Neil M. Gorsuch and Elena Kagan, mostly agreed with a lawyer who said there was a 150year history of broken promises to the Navajo Nation.

A treaty signed in 1868 promised a “permanent home” where Navajo Nation residents could farm and raise animals.

“Is it possible to have a permanent home, farm and raise animals without water?” Gorsuch asked.

No, said Frederick Liu, an attorney in the solicitor’s general office. He added that the treaty did not impose a legal duty on federal government to supply more water to the reservation or even to study the problem.

Nearly a third of Navajo households do not have running water and must rely on water that is trucked in. Two years ago, the 9th Circuit Court of Appeals ruled that the Navajo Nation could bring a breach-of-trust claim against the U.S. government for failing its duty under the treaty.

At issue Monday was whether to overturn that decision or instead to allow the Navajo Nation to press ahead with a lawsuit that seeks a federal plan to supply its residents’ unmet need for water.

During the two-hour argument, Justices Amy Coney Barrett, Ketanji Brown Jackson and Sonia Sotomayor sounded as though they leaned in favor of allowing the Navajo Nation’s suit to proceed.

Four others were decidedly skeptical. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh questioned reading the 1868 treaty as imposing new duties now. The treaty itself did not mention water.

They also noted that the Colorado River is the main source of water in the region, but its waters have been allocated to seven states, including California and Arizona.

Washington attorney Shay Dvoretsky, representing the Navajo Nation, said the court did not need to consider the Colorado River at this stage of the case.

“Today the average person on the Navajo reservation uses just 7 gallons of water a day. The national average is 80 to 100 gallons,” he said. “The Nation asks only that the United States, as trustee, assess its people’s needs and develop a plan to meet them.”

For more than a decade, the Navajo Nation has been fighting its water rights claims in federal court. It won a preliminary victory in the 9th Circuit Court of Appeals in 2021, which said it 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. Elizabeth B. Prelogar argued that the 1868 treaty said nothing about water and established no specific duties for the government related to water.

Moreover, the Navajo Nation has been given water rights from two tributaries of the Colorado River, including the 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.

The justices are likely to hand down a decision in June.