The elephant on the banks of the Colorado River

The Navajo Nation’s rights to enough water for a healthy permanent homeland, rights that might include water from the Colorado River that borders the northwest corner of its reservation in Arizona, are the subject of a U.S. Supreme Court case being heard and decided this year. To the federal government, state governments, irrigation districts and water districts involved with the river, the reservation is a 27,325-square-mile elephant that they aren’t inviting in for a drink. The federal government, with authority over both the tribe and the river, has never permitted the Navajo Nation to engage in negotiations for water from the river. After 23 years of drought, the Navajo water situation is grim. Thirty to 40 percent of homes on the reservation lack running water and many drive for hours every week to far off uncontaminated wells for water for themselves and their livestock.
 The case is called Arizona vs. Navajo Nation, but Arizona is joined by the federal government, the states of Nevada and Colorado, by the Central Arizona Conservation District, the Arizona Power Authority, the Salt River Agricultural Improvement and Power District, the Salt River Valley Water Users Association, the Imperial Irrigation District, the metropolitan Water District of Southern California, the Coachella Valley Water District, the Colorado River Commission of Nevada and the Southern Nevada Water Authority.
It is a situation that has been brewing since argument and litigation over Colorado River water rights began in the early 20th century. Throughout the many decisions regarding those rights, including the rights of Indians (the legal term used by the courts for Native Americans), the federal government has barred Navajo participation. Yet by 1900, before either Arizona or New Mexico had become states in 1912, the Navajo Nation reservation had expanded westward from its original Four Corners location to the banks of the Colorado River. The reservation lies on the Colorado Plateau, which, except for last winter, has been in severe drought since 2000.
 
Competition for Colorado River water is fierce and, according to the guiding legal principle of prior rights, the Indians have the oldest rights and therefore should have adequate allotments. In fact, they don’t, and the worst off is the Navajo Nation, whose average per capita water consumption is 7-10 gallons per day, compared with the national average of 88, the New Mexico average of 81, Utah’s of 169, and Arizona of 146 gallons per day, according to an amicus brief by DigDeep Right to Water Project.
 
The elephant on the banks of the Colorado River isn’t Indian-reservation rights to water per se. Ten other tribes on or near the river have had their rights assessed by the federal government for a total amount of more than 20% of the estimated river flow. And Navajos on the eastern side of the reservation have reached an agreement with Gallup NM on the use of San Juan River water.  But the Navajos’ petition for a government assessment of its water needs for the western half of the reservation has been working its way through federal courts to the Supreme Court for 20 years. This petition is sending ripples of anxiety all the way to the end of the 242-mile-long Colorado River Aqueduct from Lake Havasu on the border between California and Arizona to Lake Mathews in Los Angeles County and to the end of the Coachella Valley Water District canal in La Quinta. Alfalfa growers in Imperial Valley, who use up to 10 acre feet of Colorado River water per crop, are concerned for the loss of their lucrative export trade in livestock feed to Saudi Arabia, Japan and beyond. Arizona is particularly nervous because it spent years fighting the California congressional delegation’s obstruction of its plan to build the Central Arizona Project until it agreed that in dry years it would take California’s allotment reduction as well as its own. Likewise, Nevada wants no new competitors for the over-allocated Lower Basin of the Colorado River.
In fact, there is flexibility in how assessments and access could be managed by the federal government. For example, right holders to water in other rivers in the country often sell their allotments for long or short terms. But there seems to be almost endless prevarication on the management of these Indian water rights in the Colorado – to the point where one wonders if they are “rights” at all, particularly when we enter the domain of “reserved rights,” which seems to be a right to draw water if you had the means to, but you don’t. 
When we look at the arguments of the federal government and the state of Arizona, the theme that stands out is the government’s bad faith, more politely known as “lack of political will.”  Bad faith is as pervasive in the government’s treatment of the Navajo Nation as the uranium from abandoned mines has become for the reservation’s groundwater. This bad faith has sought justification in a plethora of irrelevant issues, each argued to death, all to conceal the injustice being done. This ties into another aspect of elephants: the ancient story from India about blind men describing what an elephant feels like to them: the trunk is a serpent; the leg is a tree; the ear is a fan; the side is a wall, etc. 
 
The government claims the Navajo Nation has no standing to sue the federal government because the government’s trust relationship with the Nation doesn’t extend to water rights or – perish the thought! – funds for water development.  In other words, the treaty promising the Navajo a permanent home on their reservation in 1868 doesn’t include water rights because a trustee can promise Indians a permanent home without promising enough water to survive on it. Therefore, there really is no elephant. 
Next, Arizona asserts that the Department of Interior has had no authority to allocate water from the Colorado River since Arizona v. California (1952) established that the US Supreme Court alone has that authority. Furthermore, Arizona and the federal government assert that the Navajo Nation has no breach-of-trust case because it did not identify a specific law that established the government’s fiduciary duty to provide the necessary water. 
The U.S. District Court of Arizona agreed with the federal government and the state of Arizona and dismissed the Navajo Nation’s case. But the U.S. Circuit Court of Appeals for the Ninth District thought the Navajos did have standing and a valid petition and reversed the decision of the lower court. Arizona et al. appealed to the Supreme Court. 
Lawyers for the Nation argue that according to Winters v. United States (1908), Indian reservations have rights to enough water to create a viable, permanent homeland for the tribes, and that this right was denied the Navajos, when, in the Arizona v. California case, the government refused to present their water needs. Secondly, the Nation argues that it isn’t asking for an allotment of Colorado River water but for an assessment of the reservation’s water needs, which the government has already done for the other tribes whose reservations abut the river. Thirdly, treaties between the Nation and the United States in 1849 and 1868 clearly establish an actionable trust relationship, and under Section 702 of the federal Administration Procedures Act, the federal government’s sovereign immunity is waived when a petitioner seeks review of an agency action and/or wrong doing.
The heritage of bad faith legal opinions is another elephantine aspect of this case. That bad faith has spawned legal “issues” that look like those drunken monks crawling over the body of the elephant in the print above. Those justices that are listening to the power and money in the Western states rather than to justice will elevate the importance of all those opinions in their attempt to blot out the simple reality that the promise of a homeland without adequate water (Winters) is not a good faith promise and must be redressed. 
This case involves several conflicting forces: global warming; pressure in Congress to reopen uranium mines on the Colorado Plateau that will increase the danger of contamination of aquifers; the always conflictual water rights to the Colorado, collectively called “the Law of the River.” Finally, this case will reverberate throughout the whole body of laws pertaining to property rights of American Indians, in particular water rights.  
It’s worth remembering that 60 years ago the government was pushing a program to relocate as many Indians as possible off their reservations, a program that resulted in the formation of the American Indian Movement, the occupation of Alcatraz, and the hostilities on the Lakota reservations in South Dakota. 
If the federal government chooses to assert its authority as water master of the Lower Basin of the Colorado River, it has flexibility despite the demands and political pressure of the three states and their phalanx of erudite water lawyers. “The Law of the River,” laid down in 1922 to the tremendous advantage of California was not written on stone tablets by St. Herbert Hoover and discovered on the outskirts of Yuma; it might appear unacceptably irrational and unjust to enough justices of the Supreme Court in 2023 for a decision to enjoin the federal government to assess the water needs of even just the western portion of the Navajo Nation. There don’t seem to be a lot of people in the legal press, however, betting that the elephant in the room will finally be invited for a drink. Precedents from the heritage of bad faith decisions provide more than adequate refuge for moral cowardice.