Water rights battle in Southwest U.S. tests nation’s commitment to Indian trust responsibility

U.S. Supreme Court to hear Navajo Nation case with broad implications for Tribal rights

The phrase Water is Life is a self-evident truth. It’s readily apparent in the southwestern United States, where a growing population and the climate crisis are taxing water supplies.

The Navajo Nation spreads across three southwestern states: New Mexico, Arizona and Utah. Its been dealing with a water crisis for a long time. It sued the United States, saying the federal Indian trust responsibility requires it to assess the Navajo Nation’s water supply and to address the shortfall if it isn’t sufficient.

On April 28, 2021, the U.S. Court of Appeals for the Ninth Circuit agreed, writing that the U.S. Department of the Interior and its Bureau of Indian Affairs (BIA), have ” an irreversible and dramatically important trust duty requiring them to ensure adequate water for the health and safety of the Navajo Nation’s inhabitants.”

The U.S. Department of Justice, and the state of Nevada and others appealed to the U.S. Supreme Court in an effort to reverse that decision. On Nov. 4, the Court agreed to hear the case. The schedule hasn’t been set.

The central issue before the Supreme Court is whether the federal Indian trust responsibility includes guaranteeing Tribal access to water as an essential piece of its commitment to provide Tribes a permanent homeland.

Federal Indian Trust Responsibility

The Navajo Nation is located near the four corners’ region, where Utah, Arizona, Colorado, and New Mexico meet. Image: awmcphee via Wikimedia Commons.

The federal Indian trust responsibility is little understood by mainstream America. The U.S. Supreme Court first articulated it in Cherokee Nation v. Georgia (1831). It said the federal government had exclusive responsibility for relationships with Tribes, not states. The decision used the term “domestic dependent nations” to describe the U.S. government’s relationship with Tribes, a term that has stuck.

In effect, the United States claimed Native Nations as its dependents, to whom it owes a duty of care like a parent to a child.

The court’s decision in Seminole Nation v. United States (1942) called the Indian trust doctrine a legal obligation whereby the United States “has charged itself with moral obligations of the highest responsibility and trust’ toward Indian tribes …” according to the BIA.

“The federal Indian trust responsibility is also a legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources,” the BIA said. “… Over the years, the trust doctrine has been at the center of numerous other Supreme Court cases, thus making it one of the most important principles in federal Indian law.”

One exception came in the 1950s, when President Eisenhower tried to end the country’s special trust relationship with Native Nations, including dissolving reservations. It was called the Termination Era,

President Nixon reversed that policy. In his 1970 Special Message on Indian Affairs, he said:

For their part, the Indians have often surrendered claims to vast tracts of land and have accepted life on government reservations. In exchange, the government has agreed to provide community services such as health, education and public safety, services which would presumably allow Indian communities to enjoy a standard of living comparable to that of other Americans.

This goals, of course, has never been achieved. But the special relationship between the Indian tribes and the Federal government which arises from these agreements continues to carry immense moral and legal force.

Richard Nixon

A long-standing legal battle.

A dam on the Colorado River created Lake Mead east of Las Vegas. Water levels have been dropping. Photo: National Park Service.

Water battles are nothing new in the region.

As far back as the 1950s, the State of Arizona had concerns that the state of California was taking more than its fair share of water from the Colorado River. In 1952, it filed an action against California in the U.S. Supreme Court, seeking to establish a fair water distribution.

More parties got involved, including other states. The Court approved a 1964 Consent Decree apportioning waters in the Colorado River “between Upper Basin States (Colorado, Wyoming, Utah, and New Mexico) and the Lower Basin States (Arizona, Nevada, and California). The Court also ruled “the United States had reserved water rights for five Indian reservations,” but those did not include the Navajo Nation.

The Navajo Nation is experiencing significant drought impacts, according to the U.S. Environmental Protection Agency (EPA). “Some shallow wells have run dry and have reduced drinking water supplies. There have been reported losses of agricultural crops and livestock, as well as important medicinal and cultural plants and animals.”

The Navajo Nation first filed its own suit in 2003, a Reuters story said. It wants the Interior Department to assess whether the Little Colorado River provides enough water to meet the Navajo Nation’s needs. “If not, the Nation says the government must develop a plan to supply water from other sources.”

Water shortages will only get worse

According to the EPA:

“Drought conditions are already common in the Southwest and drought periods are expected to become more frequent, intense, and longer.”

The Southwest faces two unique water challenges.

First, the area is very dependent on surface waters, such as Lake Mead. Surface waters “are vulnerable to evaporation.” Even a small temperature increase or small precipitation drop “can seriously threaten natural systems and society.”

Second, water demands are highest in the spring and summer. When the mountain snowpack melts slowly, it provides water at this critical time. However, over the last half-century, there’s been less late-winter snow and snow melt is happening earlier.

The Courts decision in the Navajo case could have broader impacts. The Southwest United States is home to 182 federally recognized tribes and communities.

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