Navajo Nation water rights case heard before Supreme Court

The latest case involving Indian Country was argued Monday before the Supreme Court.

Arizona v. Navajo Nation, like many cases heard before the high court, is complicated and this case in particular deals with the tribe’s water rights as it relates to the Colorado River.

The two issues at hand are whether the U.S. Court of Appeals for the 9th Circuit erred in its judgment allowing the Navajo Nation “to proceed with a claim to enjoin the secretary of the U.S. Department of the Interior to develop a plan to meet the Navajo Nation’s water needs and manage the mainstream of the Colorado River in the Lower Basin” and can the tribe “state a cognizable claim for breach of trust consistent with this Court’s holding in Jicarilla based solely on unquantified implied rights to water under the Winters Doctrine” according to a document on the Supreme Court’s website.

The Winters Doctrine stems from a 1908 decision that states when Congress reserves land, it also reserves water sufficient to fulfill the purpose of the reservation.

Representing the United States, assistant to the U.S. Solicitor General Frederick Liu said that while the government may have a moral and political responsibility to address the tribe’s water needs, it does not have a judicially enforceable affirmative duty to do so.

Citing the Navajo Nation treaty of 1868, Liu added the treaty does not impose on the government a “duty to construct pipelines, pumps, or wells to deliver water.”

Rather, the tribe is free to develop its own infrastructure and access groundwater and aquifers instead of the main stem of the Colorado River.

“What the Navajo Nation cannot do, however, is to impose on the United States a duty that the government has never expressly accepted. Accordingly, the judgment below should be reversed,” Liu said in his opening statement.

Liu was pressed by Justice Elena Kagan on how the tribe’s water rights are unenforceable when they are included in the treaty.

“You’re saying, those rights are unenforceable, and I guess I don’t understand if the treaty promises water, where do you get the idea that that is unenforceable?” Kagan asked.

“The treaty does have vast water rights in the tribe, and those rights are enforceable including by the tribe, but the promise that we have allegedly breached here isn’t about violating those rights. It’s about violating affirmative duties to supply the water to the tribe,” Liu responded.