Upcoming cases before the US Supreme Court include Arizona v. Navajo Nation, No. 21-1484.  University of Georgia School of Law Assistant Professor Adam D. Orford is available for further comment

Upcoming cases before the US Supreme Court include Arizona v. Navajo Nation, No. 21-1484.

The case focuses on two issues:

  1. Whether the opinion of the US Circuit Court of Appeals for the 9th Circuit allowing the Navajo Nation to proceed with a lawsuit to order the Secretary of the US Department of the Interior to develop a plan to meet the Navajo Nation’s water needs and to manage the mainstream B. Bounding the Colorado River in the lower basin so as not to interfere with this plan violates the Supreme Court’s reserved and exclusive jurisdiction over the allocation of water from the LBCR mainstream in Arizona v. California
  2. Whether the Navajo Nation can bring an identifiable breach of trust claim consistent with the Supreme Court decision in USA v. Jicarilla Apache Nation based solely on unquantified implicit rights to water under the doctrine of Winters v. United States.

Please describe the case of Arizona v. Navajo Nation.

The Navajo Nation has long been suing the United States government on the theory that the United States breached its fiduciary duty to secure water for the tribe’s use on its reservation lands. The Navajo Nation faces opposition to its efforts, both from the federal government, which denies that the specific tax claimed exists, and from western states and water users, who fear that the eventual end of such a lawsuit could result in the loss of their allotted water Water will be Colorado River under previous interstate agreements and a Supreme Court decision.

Both the United States and western water users and states — Arizona, Nevada and Colorado — are asking the Supreme Court to review a 9th Circuit ruling that there is a duty sufficient to support the Navajo Nation’s lawsuit. States also argue that whether or not such an obligation exists, while the US position is that it is premature, the Supreme Court’s prior jurisdictional reservation for claims related to Colorado River water allocation precludes all claims for enforcement be to examine this question.

What is the central legal question in this case?

Whether tribal water rights, as previously determined by the Supreme Court and contained in tribal contracts (“Winter Rights”), are enforceable in a suit of breach of trust, as previous Supreme Court precedent suggests that such enforcement is one expressly accepted by the US law requires

To what extent would a lawsuit on this basis, which would require the U.S. to develop a plan to secure water for the Navajo Nation consistent with their rights (which would likely involve taking water from the Colorado River), align with the decision of the Supreme Court incompatible? Jurisdiction for all claims related to the allocation of waters from the Colorado River.

What are the potential implications of the case? Why are they important?

Western Water is oversubscribed and poses a kind of zero-sum problem under current law. Interests that have rights under the current system would become less relevant if the rights of the Navajo Nation were included in the current allotment framework. Meanwhile, the Navajo Nation suffers from water scarcity and poverty, due in part to a long history of unfair treatment by those systems.

What do you think the Arizona vs. Navajo Nation decision will likely be?

It’s very difficult to predict. The Court has long attempted to protect tribal interests — and a ruling on this issue for the Navajo Nation would most closely align with the Court’s previous water rights rulings that seek that goal.

Whatever the verdict, the likely outcome is more litigation as Western states continue to manage their water resources in unsustainable ways and in ways that prioritize agriculture and urban growth over environmental protection and tribal well-being.