The Supreme Court on Monday morning heard oral arguments in Arizona v. Navajo Nation, a case revolving around whether the U.S. government is obligated to fulfill Native American reservations’ water needs.
At issue is an 1868 treaty under which the federal government guaranteed the nation’s agricultural needs, which the Navajo Nation argues includes water rights. Tribal governments in the suit also cite the so-called Winters doctrine, based on the 1908 Winters v. United States court case, which established that the creation of a Native American reservation also reserves the water necessary for its purposes.
Complicating matters, however, is the allocation since then of rights to the Colorado River between the seven states in the river’s basin.
In oral arguments, the U.S. argued that treaty obligations did not include an obligation to develop specific water infrastructure.
“Those affirmative duties aren’t part of the treaty and because the government has never expressly accepted those duties, the Navajo Nation’s breach of trust claim can’t proceed,” said Frederick Liu, assistant to the U.S. Solicitor General, in arguments Monday morning.
Justice Sonia Sotomayor seemed particularly skeptical toward Liu’s arguments, saying, “I don’t understand, if the treaty promises water, where you get the idea that that is unenforceable. That’s quite an odd agreement the tribe enters into, isn’t it? They agreed to go back to a piece of their homeland — and the bargain they got in return was, we, the United States, took away all of your other land, we gave you this piece of land, here, survive, even if it turns into desert conditions.”
In response, Liu said “the promise that we have allegedly breached here isn’t about violating those [water] rights, it’s about violating affirmative duties.” Sotomayor still appeared dubious on the distinction.
In arguments on behalf of the state of Arizona, Rita Maguire argued that the Winters obligation “is an intent; it does not define an affirmative duty.”
Justice Elana Kagan replied that “rights usually have a correlative duty.”
Justice Clarence Thomas asked Liu for clarification on where, besides the river, the Navajo Nation would be expected to obtain water. In response Liu named aquifers and groundwater.
Andrew Curley, a member of the Navajo Nation and an assistant professor at the University of Arizona’s School of Geography, Development & Environment, told The Hill Liu’s response was indicative of the federal government’s attitude toward the nation.
“What the tribe is asking for is surface water rights, and surface water is treated differently than groundwater,” he said. “That’s what the government is saying in 2023, that tribes have less rights than any other community in the southwest.”
In his arguments on behalf of the Navajo Nation, meanwhile, Shay Dvoretzky said that “the United States agrees that on paper the nation has treaty rights to the water its people need, [but] we’re here because the United States says it doesn’t have to do anything to secure the water it promised.”
Curley said the court “sound[ed] like it doesn’t know too much about water law and especially the history of deprivation and colonialism in the region.”
“It sounded like some basic issues needed clarification, some basic histories were neglected,” he added.
The stakes, Curley said, are particularly high for Indigenous people in the region, considering the ongoing drought in the western U.S.
“The way that the government is treating water is very concerning because it’s treating it as a bundle of rights alongside timber and land and other kinds of resources, which diminishes its importance in the region,” he said. “I think it‘s concerning for everyone in the region to think about water as something that’s a simple right to deplete.”