Heinrich: US on "wrong side of history" opposing Navajo water at Supreme Court

New Mexico's senior US Senator is taking umbrage with the Biden administration's opposition to a plea by the Navajo nation requiring the federal government to include basic water access in treaty obligations with the drought and poverty stricken nation.

On the nation of approximately 170,000 tribal residents, almost 1/3 have no access to clean, running water. Many rely on untested wells or haul water for miles for basic sanitation and cooking. The 1868 treaty that established the modern Navajo Nation set aside 27,000 square miles for a new "permanent homeland" where federal officials forcibly relocated Navajos from across the southwest.  Under federal oversight, the nation remains one of the poorest places in the country. 

In 2003, with drought set in and western states fighting over access to decreasing Colorado River allotments, the Navajo nation sued the federal government claiming it had a responsibility to provide what they say is a basic requirement for a homeland: water.  And, as other states along the Colorado River, which runs along the northwest edge of the nation's lands, began renegotiating water allocations from the river, the federal government blocked the nation from participating in negotiations.

In the case that developed since, the US government agreed that the nation has a right to water but exactly how far the federal government's obligation to provide it extends is another matter, they say. 

That disagreement and years of court decisions and appeals eventually wound its way to the US Supreme Court this week where attorneys on behalf of the Biden administration argued that the federal government had done enough. 

From SCOTUS Blog, a public service news outlet covering the US Supreme Court: 

More than a century ago, the Supreme Court held in Winters v. United States that treaties establishing Indian reservations should be construed to include a right to enough water to establish a homeland. More recently, the court in United States v. Jicarilla Apache Nation held that a tribal nation suing the federal government for breach of trust must point to contract or treaty language explicitly establishing a right. These two precedents have come into conflict here...

From the government’s perspective, once the property rights are established, the Navajos are just like any other water user in the west. Even if there is not enough water, the United States has no obligation to provide water.

Justice Neil Gorsuch probed this theory, asking whether the United States could dam the Little Colorado River and stop all river water from reaching the reservation. Liu agreed that the United States could not affirmatively deny the Navajo Nation any water, but would not budge from the position that the government has no duty to affirmatively act to make water available.

Justice Elena Kagan framed the issue differently. If a treaty is a contract in which the United States promised a homeland to the Nation, she asked, then why wouldn’t the federal government, as a party to the contract, have an enforceable obligation to ensure that there would be enough water? The government’s answer seems to be that an Article III court does not have the power to order the government to comply with such a contract term.

In that case, Justice Sonia Sotomayor asked whether the trust obligation of the treaty was simply meaningless. She suggested that, if it is, the Nation agreed to a contract in which it gave up vast lands and resources in exchange for a much smaller reservation and nothing else.

Questions from justices seemed to indicate a court closely divided on the issue. The court is not expected to announce a ruling until later this summer.

US Senator Martin Heinrich wasted no time expressing his displeasure with the federal position once the court hearing was complete.