The Supreme Court will review the Navajos’ demand for more water

As California and the Southwest face historic droughts, the Supreme Court on Friday agreed to review a 9th Circuit Court ruling that ruled the Navajo Nation had the right to take more water from the Colorado River.

The appeals court pointed to the 1868 treaty that gave the Navajo a “permanent home” on their reservation, and it ruled that the treaty “necessarily includes rights” to sufficient water for living and farming.

“It is clear that the reservation cannot exist as a viable homeland for the people without an adequate water supply,” wrote Judge Ronald Gould, but “many homes on the reservation lack running water.

Based on the treaty, the Navajo people have the right to file a “bad faith claim” against the United States and the Department of the Interior, he said. As parties to the treaty, the federal agencies have an “irrevocable and critically important fiduciary duty that requires them to ensure adequate water for the health and safety of the people of the Navajo Nation on their permanent home territory.”

The 3-0 ruling did not say how much extra water the Navajos were entitled to. The sprawling reservation has taken water from Utah’s San Juan River, a tributary of the Colorado, but the appeals court said the Navajo family has the right to file a claim for more water from the lower reaches of the main river.

Both the Biden administration and the state of Arizona asked the justices to review and overturn the appeals court ruling, and they were joined by other water authorities, including the Metropolitan Water District of Southern California.

Arizona lawyers said the 9th Circuit ruling “immediately threatens the security of existing rights” to water from the Colorado River. This water “is already fully allocated and is experiencing a major drought along with severely depleted storage in Lake Mead.”

They also said the ruling, if upheld, could give other tribes the same right to more water.

State lawyers said the 9th Circuit Court should have avoided the case entirely because the Supreme Court itself has overseen the allocation of water from the Colorado River for decades in the case of Arizona vs. California.

Lawyer Gen. Elizabeth B. Prelogar, a representative of the Department of the Interior, said the justice. that the 9th Circuit’s decision was clearly erroneous and should be overturned. She said the 1868 treaty did not include specific guarantees related to water rights, and she noted that the Navajo reservation was greatly expanded in the 20th century. The areas of Navajo Country that now seek more water from the Colorado River were not part of the reservation in 1868, she said.

The court will hear the two cases, the Ministry of the Interior vs. Navajo Nation and Arizona Vs. Navajo Nation, early next year and issue a decision by the end of June.

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