Supreme Court will hear Navajo Nation’s water-rights case, article with imageSupreme Court of the United States · November 7, 2022 · 11:46 AM UTC · undefined ago
The U.S. Supreme Court on Friday agreed to review a decision that revived a long-running lawsuit by the Navajo Nation, which claims that the U.S. Interior Department has a duty to develop plans to provide the reservation with an adequate water supply.
The high court granted two petitions for certiorari – one by the federal government, one by Arizona and other states — challenging last year’s decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals.
The 9th Circuit said “an irreversible and dramatically important trust duty” was implied by 175 years’ worth of treaties and court decisions. The challengers, however, say implied rights are unenforceable.
“The federal treaties with the Navajo Nation…do not address water at all,” and the doctrine of implied water rights “cannot justify imposing such a fiduciary duty,” lead counsel Rita Pearson Maguire argued in the states’ cert petition.
The Interior Department, represented by Solicitor General Elizabeth Prelogar, added that the 9th Circuit’s approach would replace national policy decisions with “a regime of general judicial oversight of the United States’ relationship with Indian tribes.”
The Navajo Nation, represented by Shay Dvoretzky of Skadden, Arps, Slate, Meagher & Flom, defended the 9th Circuit’s decision and urged the high court to deny certiorari.
The Interior Department declined to comment on Friday. Maguire and Dvoretzky did not immediately respond to requests for comment.
The Navajo Nation filed suit in 2003. It wants the Interior Department to determine whether the Little Colorado River, which runs through the reservation, is sufficient “to fulfill the Reservation’s purpose of establishing a permanent homeland for the Nation” – a standard known as Winters rights, from a 1908 U.S. Supreme Court decision. If not, the Nation says the government must develop a plan to supply water from other sources.
A federal judge in Prescott, Arizona, dismissed the entire suit in 2014. The 9th Circuit reinstated the breach of trust claim in 2017 but the judge again dismissed it on remand, finding no enforceable express duty. The judge also relied on a 1964 Decree known as “Arizona I,” under which the U.S. Supreme Court alone has jurisdiction over Colorado River water disputes between five other Native nations.
Reversing last year, the 9th Circuit said the Navajo reservation’s purposes expressly included farming, which implied a right to adequate water under the Winters decision; and that the Arizona I decree was irrelevant to the Navajo Nation’s lawsuit over the Little Colorado River.
The consolidated cases are Department of the Interior v. Navajo Nation, Supreme Court No. 22-51, and State of Arizona, State of Nevada, State of Colorado, The Metropolitan Water District of Southern California v. Navajo Nation, No. 21-1484
For the Interior Department: Solicitor General Elizabeth Prelogar, U.S. Justice Department
For State of Arizona et al.: Rita Pearson Maguire, Esq.
For the Navajo Nation: Shay Dvoretzky of Skadden, Arps, Slate, Meagher & Flom