On Friday, the U.S. Supreme Court agreed to hear two appeals concerning water rights of the Navajo Nation in a case revolving around western water law and tribal law.
The Supreme Court granted consolidated certiorari review Nov. 4 to the U.S. Department of the Interior and four states — Arizona, Nevada, Colorado and California — after a panel of the 9th Circuit Court of Appeals agreed that the Navajo Nation had grounds to file an amended complaint against the federal government for breach of trust based on claims that the government didn’t consider its implicit water rights under the Winters Doctrine.
Specifically, the Navajo Nation argued that the federal government failed to calculate the amount and sources of water needed to make the Navajo Nation a permanent homeland for the tribe and failed to protect the sovereign interest of the tribe by not securing water to meet those needs.
The 9th Circuit’s decision in 2021 left the door open for the Navajo Nation and other tribes to bring claims against the federal government for failing to protect their interests in proportioning water rights in the Colorado River Basin.
In granting the petition for certiorari, the U.S. Supreme Court will consider three questions: Without a definitive source of law directing it to do so, does the federal government have an affirmative, judicially enforceable fiduciary duty to the Navajo Nation to assess and address its needs for water? Was the 9th Circuit’s ruling in violation of the Supreme Court’s exclusive jurisdiction over water right allocation from the Colorado River? And does the Navajo Nation have a claim for breach of trust based on unqualified, implied water rights under the Winters Doctrine?
The appeal stems from a 2003 lawsuit by the Navajo Nation, a 27,000 square-mile reservation that expands across Utah, Arizona and New Mexico, against the federal government. Arizona, Nevada, Colorado and California intervened in the lawsuit to represent their interests in the proportionment of water in the Colorado River Basin.
The crux of the Navajo Nation’s case rests on the U.S. Supreme Court’s 1908 ruling in Winters v. United States, which established the Winters Doctrine. The Winters Doctrine found that when the federal government establishes a reservation, it implicitly sets aside enough water rights to fulfill the needs of the reservation’s residents and make it a homeland for the tribe.
When water rights to the Colorado River Basin were first put on paper in the 1922 Colorado River Compact, western states along the basin (the Upper Basin states of Colorado, New Mexico, Utah and Wyoming and the Lower Basin states of Arizona, California and Nevada) were all named as parties for proportionment. But the water rights of the Navajo Nation and other reservations and tribes also in the basin weren’t considered.
After a conflict between two of the Lower Basin states made its way up to the U.S. Supreme Court, the court in a 1964 decree established Winter rights for five tribes but not the Navajo Nation despite its request to intervene in the case.
Since the initial filing in 2003, the Navajo Nation has amended its complaint several times, and in 2021 the 9th Circuit agreed the tribe wasn’t jurisdictionally blocked from filing a breach of trust claim against the federal government.
The U.S. Supreme Court’s ruling will likely impact more than just the Navajo Nation. Out of the 30 tribes within the Colorado River Compact’s geographic region, 12 still don’t have quantifiable water rights. And with shrinking water levels and aridification in the Colorado River Basin and the western U.S., the interests of both the Navajo Nation and compact states are on the line in the case.
The Supreme Court will likely hear the case and issue its decision next year.