The tribe’s lawsuit alleged that the federal government had violated its duty “to the extent that the Navajo Nation needed water from the Colorado River to make their Arizona lands productive.”
Judge Murray Snow of the US District Court in Arizona dismissed the claim in 2019, saying the tribe had not shown that any duty of trust had been breached. He also raised questions about whether a ruling for the tribe would violate Supreme Court findings in the long-running Arizona v. California litigation.
In April 2021, the 9th US Circuit Court of Appeals based in San Francisco revived the tribe’s lawsuit, concluding that the tribe was not seeking direct access to the waters of the Colorado River and that the lawsuit therefore implicated various decisions in Arizona v. California No.
“The nation’s claim, properly understood, is an action for breach of trust—not a claim asserting a judicial amount of its water rights,” the court concluded. The appeals court found that the tribe could pursue a claim for breach of its trust.
The federal government and states then appealed to the Supreme Court, which agreed to take up the matter in November.
‘Clouds of uncertainty’
Solicitor General Elizabeth Prologer, representing the federal government, argued in court papers that the tribe failed to indicate any duty of trust that the federal government owed to the tribe to provide access to water from a specific source. The matter comes
“The United States of America has a common trust relationship with Indian tribes. But the mere existence of that common relationship does not establish judicially enforceable duties against the United States,” she wrote.
She said that if the Supreme Court rules in favor of the tribe, it would force the government to violate a 1964 decision that was part of the Arizona v. California case. That ruling limited the circumstances in which the federal government could divert water from the Lower Colorado River.
Federal officials declined to comment on the litigation.
The states involved in the case — Colorado, Arizona and Nevada — also reject the tribe’s arguments. Colorado lawyers said in that state’s brief that a decision for the tribe would create “immediate and long-term disruption to the coordinated management of the Colorado River.”
States point out that they are already implementing the 2007 agreement on water scarcity as well as the Drought Contingency Plan adopted in 2019.
The states, the federal government and three water districts involved in the litigation in California argue that a victory for the tribe would vest rights to the main channel of the Colorado River.
Rita Maguire, the attorney who argued the case in the Supreme Court on behalf of the states and California’s water districts, said in an interview that although the tribe is now focusing on the government’s general obligation to ensure access to water, “it is clear that The Navajo are demanding water for the Lower Colorado River.
He said any change in the way water is allocated “could harm other states”. He said that a decision for the tribe would give it priority over others, and that “creates a cloud of uncertainty”.
Tribal officials know they may face an uphill battle in the Supreme Court, which has historically not been friendly to Native Americans. Just last year, the court ruled 5-4 against the tribes in Oklahoma, expanding the state’s authority over their territory.
