Supreme Court Keeps Navajo Nation Waiting for Water

More than 150 years after the Navajo Nation signed treaties with the United States establishing its reservation and recognizing its sovereignty, the country’s largest tribe still struggles to secure the water guaranteed by those agreements.

Decades of negotiations with the state of Arizona have proven fruitless. The state has been uniquely aggressive in using the scarce resource as a bargaining chip to extract concessions from the Navajo Nation and other tribes, dragging out the talks while Indigenous communities await desperately needed water and infrastructure, a recent ProPublica and High Country News investigation found.

The Navajo Nation sued in hopes of accelerating the process. The case, launched 20 years ago, held the potential to reimagine how tribes secure their water rights. But the U.S. Supreme Court last week dashed those hopes by largely deferring to the status quo the tribe has dealt with for decades.

In a 5-4 decision, the court denied the Navajo Nation’s request that the federal government be forced to act in a timely manner to help the tribe quantify, settle and access its water rights. (While tribes negotiate with states for water, the federal government acts on tribes’ behalf by, for example, helping account for how much is needed and available.)

Writing for the majority, Justice Brett Kavanaugh said the tribe’s treaties do not impose “a duty on the United States to take affirmative steps to secure water for the Tribe.”

Dylan Hedden-Nicely, director of the Native American Law Program at the University of Idaho and a citizen of the Cherokee Nation, said that in light of the decision, “tribes should continue to be aggressive about pursuing their water rights and hope — at least from a political perspective — in holding the U.S. to its trust obligations to protect tribes’ land and water.”

Now, the Navajo Nation faces the same arduous paths to accessing water: either negotiate with Arizona or fight in state court.

The tribe was on the cusp of a settlement with Arizona in 2010, but the deal died in Congress because it was deemed too expensive. Two years later, another attempt was rejected by the tribal council after Arizona officials insisted it include a lease extension for a controversial coal mine. Then, in 2020, state lawmakers suggested imposing yet another condition on tribes: making the renewal of tribes’ casino licenses contingent on their water deals being finalized.

Navajo Nation leadership has since said that talks with the state have fizzled, especially as the region’s drought has worsened.

Following the court’s decision, Navajo Nation President Buu Nygren said he’s hopeful Arizona’s new governor, Democrat Katie Hobbs, will come back to the negotiating table. During her campaign, Hobbs promised to work with tribes on their water claims, but since taking office her administration has been largely silent on the issue.

Hobbs did not respond to requests for comment on the ruling or ProPublica and High Country News’ recent investigation into Arizona’s water rights negotiating tactics.

If negotiations remain stalled, the other option is continuing a water adjudication case in state court that began in 1978, involves 14,000 claims and has no end in sight.

Long Road to the Supreme Court

The Navajo Nation’s case began in 2003, when it sued to force the federal government to move more quickly in helping settle the tribe’s water rights as guaranteed by treaties and court cases. Arizona and other parties intervened in the case, which elicited briefs from four states, more than 100 tribes and 27 trade groups representing mining companies and other water-intensive industries.

“The government says, ‘Leave it to Congress, leave it to the political branches,’” Shay Dvoretzky, the Navajo Nation’s counsel, told the Supreme Court justices during oral arguments in March. “We’ve been waiting half a century for the political branches to solve this problem for the Nation. It hasn’t happened.”

A copy of the 1868 treaty at the heart of the case is displayed in the Navajo Nation’s tribal museum in its capital of Window Rock. The agreement, signed by 29 Diné representatives and U.S. Army Lt. Gen. William Tecumseh Sherman, allowed the Diné people to return to a part of their ancestral homeland after five years in exile and internment at Bosque Redondo in New Mexico.

Although water rights are not explicitly mentioned in the document, there is a promise of a “permanent home” and tools and land to establish an agricultural economy. In court, the Navajo Nation argued this indicated both parties understood water would be available for the reservation to which they were confined.

Nygren said the vision of the Diné leaders who signed the 1868 treaty has only been partially realized. The Navajo Nation has an enrolled membership of more than 400,000 people, but fewer than half live on the reservation, in part because of a lack of reliable water sources.

The court’s decision flies in the face of tribal leaders’ understanding of the treaties, Speaker of the Navajo Nation Council Crystalyne Curley said in a statement. “Through the sacrifices and prayers of our ancestors, we secured the right to have access to water based on our treaties,” she said. “Our leaders negotiated the terms of our treaties in good faith with the federal government.”

Justice Neil Gorsuch, who was joined by the liberal justices in dissenting, agreed that the treaties provide “enforceable water rights” that have yet to be quantified despite the Navajo Nation’s efforts.
“The Navajo have tried it all. They have written federal officials. They have moved this Court to clarify the United States’ responsibilities when representing them. They have sought to intervene directly in water-related litigation,” Gorsuch wrote. “At each turn, they have received the same answer: ‘Try again.’”

In response to the court’s opinion, Nygren said his administration would continue talks with Arizona to “ensure the health and safety of my people.”

Winters Doctrine Spared

The U.S. Department of the Interior released a statement responding to the ruling in which it affirmed its trust responsibility to tribes while saying it would balance the needs of tribal and non-tribal water users.

The Arizona Department of Water Resources, the state’s representative on matters of tribal water, said in a statement that the agency was “grateful” for the ruling because it did not disrupt how the Colorado River system is managed.

While the decision preserved the status quo, it did not upend the court’s own 115-year-old precedent that is the foundation of tribes’ water claims, as some feared it could have. That legal precedent, called the Winters Doctrine, was established in 1908 when the court ruled tribes were entitled to water to create a permanent homeland on their reservations and satisfy their treaties with the United States.

In penning the majority opinion, Kavanaugh walked a line between protecting the Winters Doctrine and declining to expand the federal government’s trust responsibility to tribes.

Had the Winters Doctrine been picked apart, it would have thrown into question the future of every tribe with unsettled water rights. Fourteen of the 30 federally recognized tribes in the parched Colorado River Basin, where the Navajo Nation’s fight for water originated, still have at least some outstanding claims to water, according to a ProPublica and High Country News analysis. Only 39 tribal water settlements have federal approval anywhere in the country, according to a March count by the Congressional Research Service. There are 574 federally recognized tribes.

“Tribal nations have been trying to hold the United States accountable for its failure as a trustee for a long time, and it’s an uphill battle,” said Matthew Campbell, deputy director of the Native American Rights Fund and an enrolled member of the Native Village of Gambell. “This case continues that trend.”

The court’s majority opinion seemed to equate the water shortage facing tribes like the Navajo Nation to what states face in the West. But that framing belies the inequities on the ground, where a third of the families on the reservation do not have access to clean, piped water and must haul it from wells or purchase bottled water, according to DigDeep, a nonprofit that filed an amicus brief in support of the Navajo Nation’s case.

That view also sets aside the fact that many tribes hold senior priority water rights, meaning they are legally guaranteed water over other users. “The Navajo Nation has far less water and less developed water on the reservation than you see off the reservation,” said Derrick Beetso, a professor of law at Arizona State University and citizen of the Navajo Nation.

Bringing their case to the courts, Nygren said, was not an easy choice. The Navajo Nation proceeded because the federal government was not taking its need for water seriously. After the March oral arguments in the case, he said, “It should not have come to this court.”

-Anna V. Smith, Umar Farooq, Mark Olalde for ProPublica