From Law Week Colorado (Hank Lacey):
A federal appeals court has rebuked the U.S. government for failing to properly consider the interest of Native American nations in developing allocation guidelines for the Colorado River Basin’s waters and ordered it to prioritize obligations assumed when it signed a treaty with the Navajo Nation in 1868. The April 28 ruling by the 9th U.S. Circuit Court of Appeals may boost Native American negotiating clout as the basin’s states ponder how to address impacts of ongoing drought in the region.
Coming 18 years after the Navajo Nation (Naabeehó Bináhásdzo) first sued the Department of Interior in an effort to assure that its interests are protected by the federal government in any move to reallocate Colorado River waters, the decision opens the door to a possible federal district court decision directing the Biden administration or a successor about how to fulfill trust and treaty responsibilities owed to the Navajo Nation.
“We hold that the Nation has successfully identified specific treaty, statutory, and regulatory provisions that, taken together, anchor its breach of trust claim,” wrote Judge Ronald Gould of Seattle in the court’s majority opinion. Among the reasons the court relied upon to support that conclusion are the Treaty of Bosque Redondo, under which the Navajos surrendered a significant portion of their historical territory in exchange for a promise of a “permanent homeland,” a long-standing doctrine of water law based on a 1908 Supreme Court decision and the Department of Interior’s “pervasive control” over the river.
The decision does not mean that the Navajo Nation will be given a specified amount of water. “They’re not seeking a quantification of tribal water rights,” said Mark Squillace, the Raphael J. Moses Professor of Natural Resources Law at the University of Colorado Law School. “What the tribes seem to be claiming is that the federal government has basically dropped the ball in terms of its responsibility to protect the tribe and the tribe’s interest in clean water. It is still the case, I believe, that quite a number of people on the reservation don’t have access to clean drinking water. They don’t have water that is piped into their homes.”
Squillace said that situation is ironic because the tribe has paper water rights. “Here’s this nation that has Winters rights … that would almost certainly guarantee them enough water, certainly for their domestic purposes but for other purposes as well, and yet they basically have to truck water to their home in order to have access to clean drinking water,” he said…
According to a 1976 ruling by the Supreme Court, Winters v. United States means that the federal government must assure Native American reservations of “appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.” Although Native American water rights are guaranteed by federal law, their extent must be determined in state courts under a 1952 statute known as the McCarran Amendment. While the Navajo Nation has some of its water rights under that doctrine quantified as a result of settlements with New Mexico and Utah, the tribe has not reached agreement with Arizona on exactly how much Colorado River water it is entitled to use…
Instead, the decision largely relies on the 1868 Treaty. “Water was not explicitly mentioned,” said research professor Heather Tanana of the University of Utah S.J. Quinney College of Law. But “the treaty itself says it should receive a liberal construction at all times and in places. No community can survive without water.”
The array of statutes, regulations and cases that govern allocation and use of the Colorado River itself also do not provide the Nation with any specific amount of usable water…
Navajo Nation president Jonathan Nez acknowledged that point in a statement released after the 9th Circuit’s decision was issued. “Water resources are becoming a greater concern for the southwest portion of the United States,” he said. “Over 150 years after the signing of the Treaty of 1868 between the Navajo people and the United States, we are still having to fight for water allocations.”
The Navajo Nation is larger than ten U.S. states and Puerto Rico and covers an expanse of 71,000 square kilometers that stretches across northeastern Arizona and parts of New Mexico and Utah.