Navajo Nation Isn’t Asking the Supreme Court For Much

Decades of severe drought have made the Colorado River’s water a precious, dwindling resource. Since the turn of the century, the river’s flow has declined about 20 percent, and could approach 40 percent by 2050. Rising temperatures from climate change mean that drought conditions will likely worsen. Lake Mead and Lake Powell, two of the nation’s largest reservoirs, reached historic lows in 2021, and may not fill again in the lifetimes of anyone reading this sentence.

The states through which the river runs—Arizona, California, Colorado, Nevada, New Mexico, and Utah—along with the federal government on behalf of various tribes, have battled over rights to the Colorado River for years. But the government’s advocacy for the Navajo Navajo, which spans parts of Arizona, New Mexico, and Utah, wasn’t particularly thorough. Even though the river flows along the Nation’s northwest border, the government never staked the Nation’s claim to the river’s mainstem—only to certain offshoots of it. When the tribe tried to intervene on its own behalf in 1963, the Department of the Interior blocked them from doing so. As a result, the Navajo Nation has faced water shortages for years. Nation residents use an average of seven gallons of water per day; the U.S. average is 82 gallons per person. 

Five decades later, the tribe is still fighting for its share of the Colorado River. Earlier this week, the Supreme Court heard oral argument in the latest chapter of this fight, Arizona v. Navajo Nation. At issue is the government’s promise in an 1868 treaty to provide the Navajo with a “permanent homeland.” Water rights aren’t explicitly laid out in the treaty, but the Nation argues that a “permanent home” necessarily includes adequate access to water. They want the government to assess the Nation’s water needs and come up with a plan for actually meeting them.

The states that have joined the lawsuit, Arizona, Colorado, and Nevada, all oppose the Nation’s request because they stand to lose water rights on an already-shrinking river that can no longer satisfy the states’ needs, let alone anyone’s new requests.The case could have ramifications beyond the Navajo Nation’s water supply: A dozen other indigenous tribes have unresolved claims to the Colorado River. If the Nation wins, they could use the same argument—that the federal government needs to assess water needs to fulfill the treaties between them—to win a slice of the river, too.

Colorado River water is particularly valuable because most of the land where the river drains is arid: Without adequate water, much of the development of the Southwest would not have been possible. And at oral argument, justices across the ideological spectrum pushed back against the notion that the government can keep on depriving the Nation of these benefits. Justice Amy Coney Barrett seemed sympathetic to the idea that the government violated its treaty, calling it the Nation’s “strongest argument” that the government is failing to deliver on its “permanent home” promise. Justice Sonia Sotomayor characterized the government’s argument as one that would render its obligation to protect tribal water rights “meaningless.” 

Much of the questioning came down to what constitutes a “permanent home,” particularly for Native communities who have been already subjected to centuries of state-sanctioned duplicity, mistreatment, and violence. Justice Clarence Thomas suggested that the provision of a “permanent home” includes an obligation “to bring water to land where there is no water.” Justice Elena Kagan similarly expressed skepticism that a meaningful treaty with the government would not include an implicit promise to “do what’s necessary to make the land livable.” 

Justice Neil Gorsuch asked perhaps the most pointed question. “Is it possible to have a permanent home, farm, and raise animals without water?” he asked the government’s lawyer, who, perhaps cutting his losses, simply responded, “No.”

Part of the problem for the states’ argument here is that Navajo Nation isn’t asking for special treatment; they’re asking to be treated the same as everyone else. “The Nation, not the states, was cut out of Arizona v. California by the federal government and left without water,” the Nation’s lawyer told the justices. “The United States thinks that it alone decides whether it has made good on its promises. But that’s not how promises work.” 

As a resource necessary for life is dwindling, Arizona v. Navajo Nation is the Nation’s bid to ensure that the Navajo can live permanently on their land as promised. As the lawyer told the justices on Monday, “The Nation is here for its fair share, through a fair process.”