What’s Next for Tribal Water Rights Following Arizona v. Navajo Nation?
Photo by Amy S. Martin
To paint a picture of how long the Navajo Nation has been getting the runaround as they seek access to Colorado River water for their reservations, Supreme Court Justice Neil Gorsuch compared it to the maddening line at the Department of Motor Vehicles. “The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another,” Gorsuch wrote in his dissent in the June ruling of Arizona v. Navajo Nation. At the time the Navajo Nation began this particular legal journey, Gorsuch pointed out, Elvis was making his rounds on ‘The Ed Sullivan Show.’ That year was 1958, and marked when the U.S. and Navajo Nation exchanged lands to facilitate the construction of the Glen Canyon Project on the Colorado River. So the 5-4 ruling against the Tribe certainly came as a blow—but not necessarily a knockout, as the fight will continue.
We chatted with Daniel Cordalis, Navajo Nation Tribal Member, a natural resources and Indian law attorney, and Tribal Partnership Manager with the Colorado River Sustainability Campaign to get the big picture.
“I'm not surprised by the result of the opinion and in some ways I was relieved at the minimal damage the decision caused,” says Cordalis. “The case was not really just about water. It's about what the government is required to do under its trust duties and trust obligations that result from the agreements memorialized in treaties.”
Tribal Water Rights—A Bit of Background
Beginning with the Tribal Nations that have lived in the landscape that is now the American West since time immemorial, the Colorado River has delivered life, sustenance and resilience. Today, more than 40 million people are inextricably linked to the water that flows through this legendary and hardworking river from its headwaters in the Rocky Mountains of Colorado to the delta in the Mexicali Valley, historically connecting the mountains to the sea. And as the West gets hotter and drier, everyone in the Colorado Basin is interested in securing access to water for their future well being.
Thirty federally recognized Tribes live in the Colorado Basin, all sovereign nations with some of the most senior—and largest—water rights. And while the U.S. Supreme Court ruled in 1908 that tribes have rights to “as much water as they need to establish a permanent homeland,” those rights, while briefly mentioned, were not honored or allocated in the 1922 Colorado River Compact that apportioned the use of waters from the Colorado River, dividing water between the seven states of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming. The compact remains the “law of the river” today and still guides much of the management in the Colorado Basin.
Photo by Amy S. Martin
The federally recognized Native American Tribes of the Colorado Basin have rights to about a quarter of the water—or about 3.2 million acre feet—in the basin, but many still don’t have the infrastructure to access their water rights and are still working to get a seat at the table where Colorado River management decisions are being made, including negotiating their water rights with the state their reservation is located in, or in some cases, taking their case to court.
“Some tribes like mine, Navajo, have water rights in three different states,” says Cordalis. “So we have them resolved in two of the three. But here, Arizona's rights are still outstanding.”
The case Arizona v. Navajo Nation hinged on the interpretation of a 1868 peace treaty, and alleged that the U.S. had a duty to take actions to ascertain the Navajo Nation’s water needs and develop a plan to meet those needs. The Court ruled against the Tribe, with Justice Brett Kavanaugh’s majority opinion saying the 1868 treaty “contains no language imposing a duty on the United States to take affirmative steps to secure water for the Tribe.” For the dissent, Justice Gorsuch wrote that the majority had misunderstood what the Tribe sought, as well as history and the treaty itself.
“The Navajo have a simple ask,” he wrote. “They want the United States to identify the water rights it holds for them… And if the United States has misappropriated the Navajo’s water rights, the tribe asks it to formulate a plan to stop doing so prospectively.”
“I think the Navajo Nation is still assessing what the decisions mean for it,” says Cordalis, who does not represent Navajo Nation, but works with tribes throughout the Colorado Basin on issues pertaining to water rights. “But there's nothing that this decision does that stops Navajo from doing anything that it wanted to do already. All the avenues are still available for the tribe to pursue its water rights. Of course, the decision doesn't make any of that work easier.”
Photo by Amy S. Martin
The Infrastructure Crux
As tribes gradually work toward having their water rights recognized and apportioned, one issue still remains: Having a right to the water doesn’t mean it’s actually accessible.
According to DigDeep’s Navajo Water Project, 30% of families living on Navajo Nation do not have running water at home, and Navajo people are 67 times more likely than other Americans to live without running water or a flush toilet.
“It's been an inequity for a long time,” says Cordalis. “These were promises that the United States made in treaties, and as a nation, the United States should live up to those promises. Tribal members are U.S. citizens who are struggling because they don't have access to water. And we need to be able to fix that.”
Federal projects that have helped store and move water for use all over the West have primarily been for state water users, not for tribes. So even if Upper Basin tribes have quantified rights to Colorado River water, if they can’t develop it and get it out of the river and move it to their communities, it just continues downriver.
“A lot of Lower Basin users are getting the benefit from having access to undeveloped tribal water, water the tribes want to develop and use, but have not been able to,” Cordalis says. “We've got to work on finding ways for tribes to put their water to use and break down barriers that preclude that development.”
Another Way to a Seat at the Table
Where do the Navajo Nation—and tribes in general—go from here? Cordalis says there is opportunity in that the Colorado River Basin is currently in a new planning stage, with an announcement around a Supplemental Environmental Impact Statement for near-term operations coming from federal agencies this summer, and a significant operations management plan expiring in 2026. And fortunately, the basin had an unexpectedly heavy snow year, which took some pressure off immediate negotiations. But as we close out the hottest month ever recorded, it’s clear we can’t rely on record-breaking snowfall each winter to buy us time—nor should we. More than 100 years of overallocation and mismanagement have pushed the basin to the brink and the status quo is no longer an option.
For tribes the most pressing ask, Cordalis says, is to simply be involved and part of the decision-making process. The good news? Cordalis says the states and federal government are listening and are feeling more partnership oriented, acknowledging that the tribes should have a seat at that table. And he says that’s where his work with the Colorado River Sustainability Campaign comes in.
“Every tribe is different and is going to have a different ask. Creating generalizations between them is a dead end. So, how do we best communicate and coordinate on the tribes’ asks?” asks Cordalis. “We’re working to set the stage and provide content for those talks. Whether or not it's an individual tribe or trying to understand what its needs are, which could be more technical information or support, we can help support tribes’ needs.”
A Push to be Proactive
The history of the tribes’ interaction with the federal government has been very reactionary, Cordalis explains—and a big shift he and others are aiming for is, instead, to be the ones bringing forth solutions. “Let's bring ideas forward and say, here, maybe think about this, maybe try to do this,” he says. “And if we can do that, then we think tribes will be in a better position to have their needs met.”
Cordalis says that from a good governance and basin-wide management perspective, the best way to be a good manager is to know what each party’s respective rights are, and part of that is accounting is knowing with certainty what the water rights are for the Tribes of the Colorado Basin.
“If tribes had the flexibility and freedom to use their water rights how they wanted, they could make decisions that would best support their goals, consistent with the individual tribe’s needs,” says Cordalis. “Whether it's using the water, leasing the water, deferring the use of it, whatever it is—but those kinds of questions don't necessarily answer themselves in isolation. Those answers often take account for the collaborative needs of the basin.”
He continued, “And if tribes don't have the ability to control their water rights, then you have such a mismatch of power.” Which, according to Cordalis, leads to more tension and possibility of conflict.
“Tribes, without the chance to develop or quantify their water, are left in a really bad spot, and I think it's really hard on federal and state water managers to effectively manage in these situations because there is so much uncertainty,” says Cordalis. “But if you quantify all the tribes' water rights and tribes know what they want to do with that water, then everyone knows and can plan accordingly. At that point, all parties show their hands and everyone can work with that—and each other. It makes a more sustainable management system when everyone has that opportunity.”
Photo by Amy S. Martin
The Bigger Picture
The Arizona v. Navajo Nation case, zooming out, was about something greater than water, Cordalis reminds us, "It's really about what the government is required to do under its trust duties and trust obligations.”
And while the ruling may be a disappointment, it’s not a reflection of the whole picture.
Cordalis explains that even within the federal government itself—for example, the litigation position of the Department of Justice, versus the preferred policy goals of the Interior Department—there are disconnects. And maybe the good news is that the Interior Department, as an agency, has the space to pursue its own policy goals in ways that might be more fair to tribes.
“I'm invigorated by the opportunity to create more strength and power for tribes. I think the general consensus is that the government's doing a pretty good job at working with and trying to incorporate the tribes in current river discussions,” he says. “And my perspective is, of course, I think that we could do a better job.”
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