U.S. Supreme Court questions feds on Navajo water treaty obligations

The first day of the court's new term in Washington
People walk across the plaza of the U.S. Supreme Court building on the first day of the court's new term in Washington, U.S. October 3, 2022. REUTERS/Jonathan Ernst
  • Decades-long dispute involves water rights in U.S. West

(Reuters) - U.S. Supreme Court Justices Sonia Sotomayor and Neil Gorsuch on Monday appeared skeptical of the federal government's argument that it has no obligation to develop a plan to provide the Navajo Nation with an adequate water supply.

The court’s nine justices heard oral arguments in two related appeals raised by the U.S. government and a coalition of Western states to a lower court’s decision that revived a long-running dispute brought by the Navajo Nation against the U.S.

The 9th U.S. Circuit Court of Appeals’ 2021 order said there is an “irreversible and dramatically important trust duty” implied by 175 years’ worth of treaties and court decisions to ensure access to water from the Colorado River.

The federal government and states including Arizona and Nevada have claimed those treaties don't specifically address water at all. And enforceable obligations can't be read into implied water rights, they said.

Frederick Liu, an attorney for the federal government, argued Monday the United States’ trust obligations were “limited,” and said there’s nothing stopping the Navajo Nation from attempting to establish water rights on its own.

But Sotomayor said such an arrangement seemed strange.

“You don’t think there’s a fiduciary agreement at all?” said Sotomayor, a liberal justice. “That’s quite an odd agreement the tribe entered into, isn't it?”

Gorsuch, a conservative justice, questioned how the Navajo could directly address the water issue on its own. He said the federal government previously opposed Navajo involvement in Arizona v. California, a major 1960s water rights case in which the federal government acted as tribal trustee.

The Navajo Nation’s suit was filed in 2003. It aims to get the U.S. Interior Department to determine whether the Little Colorado River — a tributary that runs through the reservation that covers northeastern Arizona and parts of Utah and New Mexico — is sufficient “to fulfill the reservation’s purpose of establishing a permanent homeland for the Nation”.

If not, the Nation says the federal government needs to develop a plan to supply water from other sources.

A federal district judge in Arizona has twice dismissed the Nation’s claims, but the 9th Circuit reversed both times. Most recently, in 2021, the appeals court said the Navajo reservation’s purposes expressly included farming, which implied a right to adequate water.

The cases are Department of the Interior v. Navajo Nation and Arizona v. Navajo Nation, Supreme Court of the United States, Nos. 22-51 and 21-1484.

For the federal government: Frederick Liu of the U.S. Department of Justice

For the state parties: Rita Maguire

For the Navajo Nation: Shay Dvoretzky of Skadden, Arps, Slate, Meagher & Flom

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