Supreme Court to Consider Navajo Nation’s Water Rights in Arizona

On Monday, the Supreme Court will hear a major water rights dispute in Arizona to decide whether the federal government has broken its promises to the Navajo people for more than 150 years.

Nearly a third of Navajo households do not have running water and have to rely on truckloads of water. The Navajo Nation accuses the US government of violating its debt of trust in an 1868 treaty that established their reservation in what is now northeast Arizona and small parts of southeast Utah and northeast New Mexico.

The treaty “promised both land and water sufficient to enable the Navajos to return to a permanent home in their original territory,” Navajo Nation attorneys told the court. “Broken promises. The nation is still waiting for the water it needs.”

The case came to trial during a drought era in the West and 100 years after the implementation of the Colorado River Agreement, which divided the water between seven states, including California, Arizona and Nevada.

The question now is whether the Navajo will be able to file a lawsuit that seeks a federal plan to provide residents with unmet water needs.

The Navajo Nation won a preliminary victory in the 9th Circuit Court of Appeals in 2021, which said it had a breach of trust suit, noting that the 1868 treaty was about agriculture.

“The right of a nation to farm land on reservations … gives rise to an implied right to the water necessary to do so,” the appeals court said. However, he has not decided whether this includes “rights to the mainstream of the Colorado River or any other specific sources of water.”

But in the fall, the Supreme Court agreed to hear appeals from both the Department of the Interior and Arizona, which are seeking to overturn the 9th Circuit’s decision.

U.S. Solicitor General Elizabeth B. Prelogar argued that the 1868 treaty was silent on water and did not establish specific water-related responsibilities for the government. In addition, the Navajo Nation has received water rights from two tributaries of the Colorado River, including the San Juan River in Utah, she said.

Lawyers for Arizona, joined by the Metropolitan Water District of Southern California, said high court orders have set aside waters from the lower Colorado River and it is too late for lawsuits that seek new rights to the same water.

Cases Arizona vs. Navajo Nation and Department of the Interior v. Navajo Nation.