Chapter 3 THE FUTURE OF TRIBAL WATER: ENSURING THE PROMISE OF A PERMANENT HOMELAND

• Jurisdiction: United States

Water Law Institute
Chapter 3

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THE FUTURE OF TRIBAL WATER: ENSURING THE PROMISE OF A PERMANENT HOMELAND
Hilary C. Tompkins Hogan Lovells US LLP Washington, D.C.

The United States continues to grapple with the serious coronavirus pandemic with no end in sight. The virus has spared no one and is an equal opportunity invader. Yet some communities have been hit particularly hard by this disease. One such community is the Navajo Nation, located in the states of New Mexico, Arizona, and Utah over an area of 27,000 square miles, where recent media reports indicate that the per capita death rate from Covid-19 is higher than any other state in the country.¹ The harsh living conditions on the Navajo Reservation, namely the lack of running water, electricity, internet, and a reliable food supply, have given the virus an upper hand against thousands of Navajos.² Recent data indicates that more than 12,000 Navajos have been infected with the virus, with over 580 deaths.³ The disparate impact of the coronavirus on the Navajo Nation has heightened awareness about the lack of basic, modern amenities on the reservation and the reality that some families cannot turn on a faucet to wash their hands to protect themselves from this disease.

This situation begs the question as to why there is still no running water for families living on the Navajo Reservation. This troubling reality has been attributed to various failures and missed opportunities by the federal government to adequately address these substandard conditions.⁴ One area worth examining is the process for the adjudication and/or settlement of tribal water rights. This paper provides a brief overview of the Navajo Nation's efforts to protect its water rights, the current process for settling Indian water rights, and consideration of alternative approaches to addressing the significant lack of critical water infrastructure on the Navajo Reservation and other Indian reservations.

I. A Short Overview of the Navajo Nation's Efforts to Protects its Water Rights

Like many tribes, the Navajo Nation has had to engage in costly litigation and negotiations for decades to protect and quantify its water rights under the Winters doctrine.⁵ The Winters doctrine provides that upon the establishment of an Indian reservation, the federal government impliedly reserved enough

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water to fulfill the purpose of providing a permanent homeland for its inhabitants.⁶ The date of establishment of the reservation serves as the date the rights vested, often resulting in Indian tribes having the most senior water right in the applicable water system.⁷

However, implementing the Winters principle in practice has proven challenging, where tribes have had to litigate for decades to gain recognition of their Winters water rights. The alternative process of negotiating congressionally authorized settlements with the United States has proven to be similarly arduous. Even once a tribe's water rights are decreed, another significant hurdle remains, which is obtaining congressional appropriations to fund water infrastructure projects to ensure the safe and reliable delivery of the water to tribal members on the reservation. Combined, these efforts can take literally decades to obtain "paper" water rights, and many more years (often decades more) to fund and implement the projects authorized by Congress.

The Navajo Nation is no stranger to these daunting legal hurdles to secure a water supply for Navajos living on the Reservation, which was first established in the late 1800s.⁸ Although its Reservation's western boundary is appurtenant to the Colorado River, the Nation's water rights were not decreed in the landmark case of Arizona v. California,⁹ which allocated water amongst the three lower basin states--Nevada, Arizona, and California--as well as quantified the Winters rights of five other tribes. The Supreme Court retained jurisdiction over that suit and issued subsequent decrees that also did not include a determination of the Nation's rights.¹⁰

The Navajo Nation has been a party to general stream adjudications involving tributaries to the Colorado River in state courts under the McCarran Amendment, which provides a waiver of the United States' sovereign immunity to allow for the adjudication of federal water rights, including tribal water rights, in state court.¹¹ One long-standing adjudication that commenced in the 1970s involves the San Juan River in northwestern New Mexico.¹² The Nation is a party to that litigation, and only after decades was the Nation able to secure a settlement from Congress in 2009 that confirmed its water rights and allocated funding for the Navajo Gallup Water Supply project.¹³ The project will divert 37,376 acre-feet of water annually from the San Juan River Basin to Navajo communities and the City of Gallup in northwestern New Mexico, and consists of approximately 280 miles of pipeline, several pumping plants, and two water treatment plants.¹⁴ The Bureau of Reclamation is overseeing the construction of the project, which is targeted to have its features completed no later than December, 2024.¹⁵

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The Navajo Nation also joined the Southeastern Colorado River Adjudication in state court regarding the Utah portion of the San Juan River. In 2003, the State of Utah and the Nation entered into settlement negotiations and reached an agreement that they presented to the Secretary of the Interior in 2010, and a final settlement was endorsed by all the parties in 2015 and 2016.¹⁶ The settlement is currently pending in Congress.¹⁷ The proposed settlement and authorizing legislation would provide the Navajo Nation with 81,500 acre feet per year in Utah from the San Juan River, and approximately $198,300,000 to fund the Navajo Water Development Trust Fund for water development projects, among other terms.¹⁸

Lastly, the Navajo Nation is involved in the pending adjudication involving the Little Colorado River, where it is asserting Winters-based water rights.¹⁹ The sub-proceeding In re Navajo Nation is organized into three phases, with only the first phase underway and objections to the hydrographic survey report have been lodged with the court.²⁰ The Special Master established the sub-proceeding to adjudicate the Navajo Nation's specific claims in August, 2016, admonishing the United States for its estimate that it would take three to five years to file the Nation's amended statement of claimant.²¹ This adjudication was first filed in 1978.²²

Thus, the Navajo Nation has been actively engaged in a number of legal mechanisms to assert and protect its water rights and secure a water supply for its members; yet the Nation remains in limbo with no resolution or certainty regarding its ability to deliver a safe water supply to its communities. This lack of resolution poses not only serious risks for the Nation, but also creates uncertainty for other water users. In the absence of a defined tribal water right and infrastructure to deliver the water, other water users are left in the dark about the amount and priority of the Nation's unadjudicated water rights.²³ This uncertainty poses risk, not only in times of shortage, but also once the Nation's rights are quantified long after its neighbors have built their own infrastructure and become dependent upon a certain level and priority of water use. This situation creates perverse incentives to consume as much water as possible to stake out one's claim, while tribes like the Navajo Nation wait decades to obtain federal funding to build critical water projects in return for negotiating the quantification of their senior rights.

II. Breach of Trust

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Given this untenable situation, the Nation has sought judicial relief by filing breach of trust claims against its trustee, the United States, for the failure to protect its water rights and provide an adequate supply of water. However, the Nation's claims have been met with significant hurdles from the outset. The Nation's breach of trust claims, originally filed in 2003 and resumed in 2013 after a decade of failed negotiations, assert that the Interior Department's breached its obligation to protect the Nation's water rights as a trust asset in the Secretary's adoption of shortage and surplus guidelines for management of the Colorado River.

The Ninth Circuit in 2017 recently affirmed the dismissal of the Nation's claims against Interior for lack of standing and failure to plead a breach of trust claim.²⁴ The Ninth Circuit found the Nation lacked standing for its National Environmental Policy Act (NEPA) claims because the guidelines did not specifically impair the Nation's unadjudicated right or practical need for water and the claims were hypothetical at best. However, the Ninth Circuit reversed the district court's ruling that there was no waiver of sovereign immunity under the Administrative Procedure Act for the Nation's breach of trust claims and remanded that claim to the district court for review, after entertaining any motion to amend.²⁵ On remand, and on the Nation's renewed, third...