The Navajo Nation has long struggled with being marginalized and excluded from water allocation conversations regarding the Colorado River. Despite their historical ties to the river and its significant impact on their communities, the Navajo Nation has often been overlooked or sidelined in decision-making processes. As water scarcity becomes more pressing in the Southwest, the Navajo people have faced challenges in accessing and managing water resources.
On June 22, 2023, the U.S. Supreme Court made another decision that continues the Navajo Nation's battle for water.
In his opening argument before the Supreme Court in March, attorney Shay Dvoretzky discussed a treaty agreement between the U.S. government and the Navajo Nation, ratified over a century ago. Dvoretzky was representing the Navajo Nation in its case against the State of Arizona.
"In the 1868 treaty, the United States promised the Navajos a permanent homeland. Both parties understood that in promising the Navajos their land, the United States was also promising them the water it needed to sustain life in the arid Southwest," said Dvoretsky.
Dvoretsky also emphasized that the federal government has played the role of trustee regarding Navajo water rights. The federal government has spoken for the tribe in water rights cases and prevented the Navajo from intervening in cases on their own behalf. For those reasons, Dvoretzky argued that the U.S. has a legal obligation to protect and secure water for the tribe.
But in a 5-4 ruling, the Supreme Court disagreed. Justice Brett Kavanaugh wrote for the majority, saying the Navajo Treaty of 1868 contained no language that the U.S. must secure water for the tribe.
"...The Navajos contend that the treaty requires the United States to take affirmative steps to secure water for the Navajos—for example, by assessing the tribe's water needs, developing a plan to secure the needed water, and potentially building pipelines, pumps, wells, or other water infrastructure… we conclude that the treaty does not require the United States to take those affirmative steps," wrote Kavanaugh.
Peter Ortego is General Counsel for the Ute Mountain Ute tribe. He says the right to water is implied in the 1868 treaty, even if it's not explicitly mentioned.
"If the Navajo had claimed that the trust responsibility included, say, air to breathe, is the United States not in responsibility to make sure that the Navajo have air to breathe? Because I don't recall the treaty saying specifically that they would provide them air," said Ortego.
Through historic treaty agreements, tribal nations gave up some sovereign autonomy in exchange for protections from the U.S. These include financial assistance and relief, like federal support for tribes during the COVID-19 pandemic. Ortego says the recent ruling against the Navajo Nation creates a legal gray area–and that it's now less clear what the U.S. must provide to tribes/
"Many branches of the United States will probably struggle in future administrations to provide the level of trust responsibility they would like to, but because of this ruling, they'll very easily be able to be taken away from services they would ordinarily provide," said Ortego.
If federal courts continue to weaken the legal responsibilities of the U.S. as a trustee to tribes, tribal attorneys like Peter Orego will have to be more assertive. In his dissenting opinion for the minority, Supreme Court Justice Neil Gorsuch said as much.
"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," wrote Gorsuch.
