Reflections on Sovereign Water Rights in the Wake of Navajo Nation v Arizona

July 26, 2023
Credit: Photo by Ian Hutchinson on Unsplash

As legal professionals, we have dedicated our lives to understanding, defending, and improving a system that has too often treated our communities and our people unfairly and unjustly. As indigenous people, we strive for the recognition and respect of our sovereignty, and we honor and pursue our responsibility as stewards of the lands and waters from which we come. Because water is life, our legal work has particularly focused on indigenous water rights.

Indian law, while not always just, is interpreted under a doctrine called the trust responsibility, which has remained fairly stable and predictable over the past several decades. The relationship between Tribes and the United States is typically described as the general trust relationship or the duty of protection. This dynamic obligates the federal government to take necessary actions to uphold the interests of Tribes, including fulfilling obligations established by treaties. Included in this legal relationship is the expectation that the establishment of Indian reservations includes the right to enough water to create a homeland for the people for whom the land is reserved. Under a Supreme Court decision in 1908, the Winters Doctrine directs courts to interpret the language contained in treaties in a way that the tribal negotiators themselves would have understood it, in part by implying a reservation of water to satisfy the purposes of the reservation. The practical implication of that logic and reasoning would lead one to conclude that no tribal negotiator would have considered an agreement to establish the lands of a reservation in the absence of water, whether the treaty was explicit about water or not.

Unfortunately, a decision by the US Supreme Court last month, in Navajo Nation v. Arizona, calls into question how these fundamental tenets of Indian law apply to the interpretation of all treaties.

The Colorado River and several of its major tributaries are the lifeblood of the Navajo Nation, flowing for hundreds of miles through the heart of the reservation. In fact, more than 30 Tribes have claims to the lifegiving waters of the Colorado River basin. Notwithstanding this tremendous bounty, more than 40% of the people of the Navajo Nation live without running water in their homes, and many more lack water to irrigate even modest domestic crops, which hinders economic development. Faced with these gross inequities, leaders of the Nation petitioned a federal court to require the federal government to determine the Nation’s water needs and to devise a plan to meet those needs.

The 9th Circuit Court of Appeals sided with the Nation, allowing them to proceed with a claim to enjoin the Secretary of the US Department of the Interior to develop a plan to meet the Navajo Nation’s water needs and ensure decisions around the management of the Colorado River would not interfere with that plan. Despite an otherwise progressive record of support for Tribes and indigenous people, the Department of the Interior, under Secretary Deb Haaland, appealed that decision to the US Supreme Court. In a 5-4 ruling, the court found that while the Navajo Nation has water rights under the Winters doctrine, the federal government does not have an affirmative duty to quantify or secure water for the Nation absent explicit direction to do so. The majority reasoned that the Nation’s treaty with the United States establishing the reservation in 1868 did not explicitly call upon the US government to take specific actions to secure water, nor have any subsequent legislative actions by Congress.

In his dissent, Justice Neil Gorsuch, joined by Justices Jackson, Kagan, and Sotomayor, wrote a thoughtful and clear defense of the traditional means of interpreting Indian treaties. He chastised the majority for failing to consider the historical context of the case and clarified that the Nation was merely asking that the United States “identify what rights it holds for them.”

Perhaps most disturbing was the separate concurrence of Justice Thomas, who urged the court to question the role and responsibility of the federal government as trustee. While this may be a bridge too far for the majority of the court, it foreshadows a dangerous future if more justices like Thomas make their way to the Supreme Court.

Tribes have served as important and unwavering stewards of the lands and waters of this continent since time immemorial. Undermining implied treaty rights to water or limiting the federal government’s duty to uphold treaties is not only unjust, but also removes an important check against unsustainable and unchecked exploitation of this critical resource. We urge those in the philanthropic community to stand with us, by investing in the legal, technical, political, and communications capacity of Tribes and indigenous led nonprofits, to continue to defend water sovereignty and water stewardship. Water is life.

Amy Bowers-Cordalis is the Executive Director and Founder of Ridges to Riffles, is a member of the Yurok Tribe, and sits on the board of the Water Foundation.

John Echohawk is the Executive Director and Founder of Native American Rights Fund, is a member of the Pawnee Tribe, and sits on the board of the Water Foundation.