The tribe’s lawsuit alleged that the federal government had failed in its duty to «address the extent to which the Navajo Nation needs water from the Colorado River to make its Arizona lands productive.»
Arizona-based US District Court Judge Murray Snow in 2019 rejected the claim, saying the tribe had failed to show that any duty of trust had been breached. He also raised questions about whether a ruling in favor of the tribe would violate the Supreme Court’s findings in the long-running litigation between Arizona and California.
In April 2021, the San Francisco-based US Court of Appeals for the Ninth Circuit revived the tribe’s lawsuit, concluding that the tribe was not seeking direct access to the waters of the Colorado River and therefore the lawsuit did not involve the various decisions in Arizona v. California.
«The Nation’s claim, well understood, is an action for breach of trust, not a claim that seeks judicial quantification of its water rights,» the court concluded. The appeals court concluded that the tribe could continue with its breach of trust claim.
The federal government and the states then appealed to the Supreme Court, which agreed in November to take up the case.
‘Cloud of uncertainty’
Attorney General Elizabeth Prelogar, representing the federal government, argues in the court documents that the tribe has failed to point out any duty of trust that the federal government owes to the tribe when it comes to providing access to water from a specific source.
“The United States has a relationship of general trust with the Indian tribes. But the existence of that general relationship does not in itself establish any judicially enforceable duty against the United States,” she wrote.
She said that if the Supreme Court ruled in favor of the tribe, it would force the government to violate a 1964 decision that was part of the Arizona v. California. That ruling limited the circumstances in which the federal government could divert water from the Lower Colorado River.
Federal officials declined to comment on the litigation.
The states involved in the case, Colorado, Arizona and Nevada, also reject the tribe’s arguments. Colorado lawyers said in that state’s report that a ruling in favor of the tribe would cause «immediate and long-term disruptions in the coordinated management of the Colorado River.»
The states say they are already implementing a 2007 agreement on water scarcity, as well as a drought contingency plan adopted in 2019.
The states, the federal government and the three California water districts involved in the litigation argue that a victory for the tribe would entail rights to the main channel of the Colorado River.
Rita Maguire, the attorney arguing in Supreme Court on behalf of the states and California water districts in the case, said in an interview that while the tribe is now focusing on the government’s general obligation to ensure access to water, «it is clear that the Navajos are seeking a water right to the Lower Colorado River.»
Any change in how water is allocated “could cause damage to other states,” he said. A ruling for the tribe would give it precedence over others, and that «creates a cloud of uncertainty,» she added.
Tribal officials are aware that they will likely face an uphill battle in the Supreme Court, which is historically not friendly to Native Americans. Just last year the court ruled 5-4 against tribes in Oklahoma in a decision that expanded state authority over its territory.