Navajo Nation water attorney sees seeds of optimism in SCOTUS defeat

By: - August 4, 2023 4:05 am

The San Juan in Shiprock in 2015. This river is connected to the Colorado River and flows into the Navajo Nation and New Mexico. (Photo by Marisa Demarco/Source NM) 

Last month, the U.S. Supreme Court ruled against the Navajo Nation in a landmark water rights case.

The Nation had called on the federal government under its treaty obligations to the tribe to assess Navajo water needs and make a plan to fulfill them if necessary, but the court’s decision was that the government had no obligation to do that.

It was a blow to a place where nearly a third of people don’t have reliable access to clean water.

But as the Navajo Nation Council celebrated 100 years of governance earlier this month, President Buu Nygren raised the Supreme Court ruling in his opening speech.

“Many feel this 5-4 ruling was a loss for us, but it wasn’t,” he said.

That is because, according to President Nygren: “Both the majority and dissenting opinions noted correctly that the Navajo Nation has a claim to the water rights in the mainstream Colorado River.”

And the majority opinion notes that the Navajo, “may be able to assert the interests they claim in water rights litigation, including by seeking to intervene in cases that affect their claimed interests.”

The dissenting opinion, written by Justice Neil Gorsuch, included this note:

“After today, it is hard to see how this Court (or any court) could ever again fairly deny a request from the Navajo to intervene in litigation over the Colorado River or other water sources to which they might have a claim.”

Michelle Brown-Yazzie is the Assistant Attorney General for the Navajo Nation Department of Justice Water Rights Unit. She sat down with KUNM to expand on what the ruling means for the future of the fight for water rights on Navajo.

“I grew up with my grandmother, my grandfather, my parents, all of my aunts and uncles being advocates for our community,” she said. “And that’s something that we all have to do, in order to ensure that our children, our children’s children, have a future as Navajos. And so water is life. And water is so important to ensure our future and to continue to thrive, our nation to thrive. And so, that’s why I do what I do.”

Brown-Yazzie said that contained in the court’s majority opinion were the seeds of optimism for her work.

“Well, the court did recognize that the US government does hold water in trust for the Navajo Nation,” she said. “And the majority opinion stated that Congress and the President have the authority to enact laws to assist the nation in pursuing its water needs.

“So to us, what this means is that the Nation can explore the pursuit of legislation, and it is our intent to urge Congress and the administration to make good on their treaty obligations with the Navajo Nation.”

She said that the minority opinion, in which Justice Gorsuch stated that a future request from the Navajo Nation to intervene on cases related to water rights in the Colorado river was likely to succeed, was important.

“Because our rights in the Colorado River have never been adjudicated, our water rights have not been quantified. And we know that we do have water rights in the Colorado River,” she said.

“Back when there was the Colorado River Compact, that was established in 1922, tribes were not invited to be a part of that decision-making,” she said. “And then you also have Arizona v. California, the big case over the Colorado River for the upper basin states and the lower basin states, tribes were not really included. In fact, the Navajo Nation had attempted to intervene, and was denied. ”

That case was settled in 1963. But Brown-Yazzie said it is possible the Nation will try again.

“We are weighing our options,” she said. “This is a very important time for the Navajo Nation to make these big decisions.”

For the moment, her focus is a lawsuit in Arizona over rights to a tributary of the Colorado, the Little Colorado River. Although the case has dragged on for decades, Brown-Yazzie said a first phase of the trial began in April this year.

“I do not think that the Supreme Court affects our Little Colorado River adjudication in any negative way,” she said. “I think that what the Supreme Court opinion does is just show that there’s more litigation ahead of us unless we can come to some sort of an agreement.”

And she thinks it would be better to come to a settlement, as the Navajo Nation did over use of the San Juan river about 20 years ago. That settlement ultimately led not just to legal rights to water, but to the building of infrastructure to get water to people on the reservation.

“In the past couple of years, we’re starting to see the infrastructure to deliver water to Navajo communities where there hadn’t been water delivered before,” said Brown-Yazzie. “We’re starting to see it come to fruition. And it really is changing communities, and it’s changing the lives of Navajo people.”

This story was first published by KUNM. It is republished here with permission.

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Alice Fordham, KUNM
Alice Fordham, KUNM

Alice Fordham joined the news team in 2022 after a career as an international correspondent, reporting for NPR from the Middle East and later Latin America and Europe. She also worked as a podcast producer for The Economist among other outlets, and tries to meld a love of sound and storytelling with solid reporting on the community. She grew up in the U.K. and has a small jar of Marmite in her kitchen for emergencies.