The Colorado River, vital to life in America’s parched West, is in crisis: it is – literally – running out of water after two decades of drought. On Monday, the Supreme Court will examine the latest legal dispute over how to ration what is left of that dwindling resource.
The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
Monday’s hearing: Arizona v. Navajo Nation and U.S. Interior Department v. Navajo Nation (two cases, consolidated for one hour of hearing, starting at 10 a.m.)
Background: Many parts of the nation’s West have had vast stretches of land that, as described by a lower court, were nothing but “hot, scorching sands.” For those lands to grow much of the nation’s fruits and vegetables, they must be irrigated from some water source. Similarly, the ever-expanding cities in the West need water for the basic support of human life.
After decades of feuds among those states and Indian tribes over water rights, there is a huge collection of law and court decisions – making up the “Law of the River,” meaning the Colorado River. This case focuses on that river’s Lower Basin, which supplies water to Arizona, California and Nevada and several Indian reservations, including the Navajo Nation.
Managing rights to use the waters of the Colorado is, basically, a zero-sum process: since there is only so much water flowing in the Colorado at any one time, granting one user a right to it will always be at the expense of another.
One of the basic features of water law in the West is that rights to water are based fundamentally on who gets to it first – the legal doctrine of “prior appropriation.” Because water was so scarce in that arid region, the first user got superior rights to it. (In the nation’s East, where the rivers flow fully, water law differs: the superior right belongs to the user nearest the river – legally, “riparian” rights. The Latin root of riparian is ripa, meaning “river bank.”)
But in the Colorado River’s Lower Basin, rights have become criss-crossed with qualifications and priorities, with the U.S. Department of Interior centrally involved in sorting out competing claims. The legal questions are so complex that the Supreme Court has assigned itself a continuing duty to monitor and regulate water rights in those states.
The complexity that the Court will confront on Monday stems from the federal government’s long-standing duty to protect the nation’s Indian tribes. Under a legal doctrine that originated in 1831, the tribes are treated as nations of their own, though dependent on the federal government as their guardian – their interests are said to be held “in trust” in Washington, particularly by the Interior Department. Federal Indian law displaces any contrary state laws, even on water rights.
The Court’s role now takes on a new urgency, with Colorado River water levels in reservoirs behind two major dams so low that they soon may drop below the point where water can be released, to supply cities, farms and ranches and to generate electricity.
With the Lower Basin states, the tribes and the Interior Department struggling to find new ways to share the burden of the reduced water supply, a separate legal dispute over tribal access to water has continued to unfold; in fact, that dispute is now in its 20th year in the courts.
A key to the outcome will be the way today’s Justices interpret one of their own precedents on tribal water rights, the 1908 ruling in Winters v. United States. In that decision, the Court blocked the damming of a river in Montana because that would interfere with rights to those waters promised to the Fort Belknap Tribe by the federal government, under trust duty owed to those peoples.
The decision’s most important conclusion was that promised water rights to tribes are superior to any rights previously claimed by other users, private or public. The Navajo Nation, whose interests are guarded by the federal government under two 19th Century treaties, is relying heavily on the Winters decision to ensure that it will have access to water.
The tribe, in the lawsuit it began in 2003, claimed that the federal government had violated its trust obligations to the Navajos in managing the Lower Basin allotments. In the latest stage of that case, a federal trial judge ruled that lower courts had no power to decide the case, because it found that the Supreme Court holds exclusive authority to oversee the allocation of water rights in the Basin.
A federal appeals court ruled that the tribe’s lawsuit could go ahead, concluding that the Navajo claim was not about allocations of water, but rather about the federal government’s duties toward the tribe in assuring it adequate water supplies – from whatever source.
The states of Arizona, Colorado and Nevada and various agencies within those states, plus some agencies in California, appealed the case to the Supreme Court. A separate appeal was filed by the Interior Department and its Bureau of Indian Affairs.
Both appeals, granted for consideration together by the Court, argue that the Navajo cannot point to a specific treaty or other legally binding provision that enables the tribe to force the federal government to work out a plan solely for the benefit of the Navajos, without regard to any other users’ rights. The states and their agencies also challenge the authority of the lower courts to have decided this dispute.
The questions before the Court: Did lower federal courts have any authority to hear this lawsuit by the Navajo Nation, since only the Supreme Court has power to allocate competing rights to the waters of the Lower Basin of the Colorado River? Does the Navajo Nation have any legal basis for compelling the federal government to work out a tribe-only supply of water?
Significance: The year 2022 marked the 100th anniversary of the Colorado River Compact, the first congressionally approved plan to divide up the waters of that river among seven states – the three now before the Supreme Court from the Lower Basin, and four others from the Upper Basin.
A century of effort by the federal government, the states involved, and an array of Indian tribes has created a legal maze that the Supreme Court from time to time tries to clarify. The task has been made significantly more difficult by the hard reality that the Colorado can’t keep up with so many demands.
As these new cases reach the Justices, there are sharp disagreements not only over basic legal principles – the nature of the Supreme Court’s own authority and the definition of the government’s core duty toward tribal welfare – but also differing interpretations of what the Navajos now want and what, specifically, the government has specifically promised over a history going back to the first treaty with the Navajos 174 years ago.
While the Interior Department insists that it only promised the Navajos a right to waters in a tributary of the Colorado, and not the river’s mainstream, the tribe says that is not the point. Rather, the tribe argues, it is suing over something more fundamental: just what legal duty did the government assume when it promised a permanent homeland with the tribe’s basic needs met?
Ultimately, whatever the Court decides, it will have to be a compromise: there is no guarantee that anyone will come away fully satisfied.
On Tuesday, the Court will hold two hearings, on whether U.S. laws apply overseas (in this instance, trademark law) and on legal rights of those who speculate in cryptocurrency – that is, an investment that exists only in digital form.