Supreme Court to Hear Case on Navajo Nation Water Rights

Published: Mar. 17, 2023 at 6:15 PM EDT
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WASHINGTON (Gray DC) - The Supreme Court is set to hear a case on Monday about water rights for the Navajo Nation in the drought-stricken west.

The reservation is arguing that the United States has to provide residents with adequate water under a treaty from 1868.

But the Biden administration, Arizona, Nevada, Colorado and some California water districts say that the treaty does not give the Navajo Nation the right to more water.

“The case is about the united states failure to fulfill its treaty promises to the Navajo Nation. The United States promised the Navajo Nation permanent homeland and adequate water to live in that homeland,” said Lenny Powell, a lawyer at Jenner & Block representing a group of leading historians who submitted a legal brief in support of the Navajo Nation.

Powell says the tribe is asking the government to assess the nation’s water needs and develop a plan to fulfill those needs and argues that the 1868 treaty promised enough water for the Navajos.

The case comes amid growing tensions in the West where water is scare because of drought.

“The average Navajo household is limited to about seven gallons of water per day, which is less than 1/10 of the national average. Now, that’s clearly not enough. So the Navajo Nation is asking that the United States to assess the nation’s water needs and develop a plan to fulfill those needs,” said Powell.

Arizona is arguing that more water for the Navajo Nation means less water for everybody else.

The 9th U.S. Circuit Court of Appeals ruled in favor of the Navajo Nation in February, saying it could sue the government for failure to carry out its duty.

The Biden administration and the group of states appealed to the Supreme Court, saying the Navajo Nation has not identified any treaty or regulation calling for water needs to be readdressed.

“The United States position is that they don’t have any affirmative duties to act on behalf of the tribe’s water rights because they’re not quantified,” said Derrick Beetso, Director of the Indian Gaming and Tribal Self-Governance Programs at the Sandra Day O’Connor College of Law at Arizona State University, which filed an amicus brief supporting the Navajo Nation on behalf of the Diné Hataalii Association of traditional healers.

Beetso said that the Navajo Nation has not be included in planning for how to allocate water from the Colorado River.

“So the states like Nevada, Colorado, California, Arizona and in other quantified water rights as well, are the only ones that are factoring into the management picture. Meanwhile, you have a vested property right for the Navajo Nation, which has yet to be quantified,” said Beetso.

Other tribes with unmet water needs might be able to bring claims like this one if the Navajo Nation succeeds.

The petitioners in the case did respond to a request for comment.