Supreme Court divided over Navajo Nation water rights claim involving #ColoradoRiver: Major water rights case could have impact across America’s West — ABC News #COriver #aridification

The Colorado River from Navajo Bridge below Lee’s Ferry and Glen Canyon Dam. The proposed Marble Canyon Dam would have been just downstream from here. Jonathan P. Thompson photo.

Click the link to go to the ABC News website (Devin Dwyer). Here’s an excerpt:

The U.S. Supreme Court on Monday (March 20. 2023) appeared narrowly divided over whether to allow the Navajo Nation to sue the federal government for help expanding their reservation’s access to water at a time when the precious resource has been in tight supply across the drying American West. After oral arguments that stretched almost two hours, there appeared to be at least five justices supportive of allowing the tribe to purse a claim, but there was no clear consensus from the bench on the scope of the government’s duty to provide water the Navajo seek…

At issue is an 1868 treaty in which the U.S. agreed to provide the Navajo, who had been forced off native lands, with a new “permanent home.” The tribe claims the agreement implicitly requires the government to assess the Navajo’s water needs and develop a plan to meet them for farming and living; the government disputes that it ever agreed to explicitly provide the reservation with a certain amount of water…

A federal district court sided with the government, denying the Navajo Nation’s claim, saying it had failed to identify a “specific, applicable, trust-creating statute or regulation that the government violated.” A federal appeals court reversed, reasoning that the reservation could not exist without adequate water and therefore an obligation to supply it was implied. Justices Neil Gorsuch, Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor all seemed sympathetic to the tribe’s case.

“Clearly, there is a duty to provide some water to this tribe under the treaty, right?” Gorsuch asked Biden administration Assistant to the U.S. Solicitor General Frederick Liu. “Could I bring a good breach-of-contract claim for someone who promised me a permanent home, the right to conduct agriculture and raise animals if it turns out it’s the Sahara Desert?”

“I don’t think you would be able to bring a breach of contract claim,” Liu replied. Gorsuch reacted with disbelief…

Attorney Shay Dvoretzky, representing the tribe, insisted the government has an “affirmative duty to ensure access to water” and that it had broken that promise for generations…An attorney for three states in the case – Arizona, Colorado and Nevada – argued the Navajo Nation should never have been able to bring the claim in the first place, since the Supreme Court has asserted exclusive jurisdiction over disputes involving the Colorado River in a series of decisions and decrees over decades…

They also argue that allowing the tribe to claim expanded water rights over the Colorado would upset pre-existing agreements and ultimately mean less water available to those communities that have come to rely on it. Justice Samuel Alito appeared most concerned about the potential “real-world impacts” of the case on preexisting water allocation agreements.

Navajo Nation. Image via Cronkite News.

Click the link to read “The Supreme Court wrestles with questions over the Navajo Nation’s water rights” on the National Public Radio website (Becky Sullivan). Here’s an excerpt:

…the Navajo Nation says it has not been able to fully represent its own interests in disputes over water. Instead, they say they’ve been blocked in court by the U.S. federal government, which says it represents tribal interests in water disputes. The tribe’s claim stems from federal policies that forcibly relocated tribes and their citizens westward and onto reservations, including the Navajo Treaty of 1868, said Heather Tanana, a law professor at the University of Utah.

“When they established these reservations, that came with the promise that those lands would be permanent homelands for the tribe and their people,” said Tanana, who is a citizen of Navajo Nation. “And I think everyone would agree you can’t have a homeland of any kind without water.”


The U.S. has argued that a broad ruling in favor of the Navajo Nation could force the federal government to conduct an assessment of the tribe’s water needs and build water supply infrastructure. Those responsibilities belong to the tribe, the government says.

“Just as the 1868 treaty didn’t impose on the United States a duty to build roads or bridges, or to harvest timber, or to mine coal, the 1868 treaty didn’t impose on the United States a duty to construct pipelines, pumps or wells to deliver water,” said Frederick Liu, an assistant to the solicitor general, addressing the court.

Several of the court’s conservatives, including Justices Samuel Alito and Brett Kavanaugh, appeared sensitive to that concern during Monday’s hearing, which prompted assurances from Shay Dvoretzky, the attorney arguing on behalf of the Navajo Nation.

“The government hypothesizes a parade of horribles where the government would have to be building pipelines across miles and miles and miles of territory,” [Shay] Dvoretzky said. “We’re not talking about anything like that.”

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