The US Court of Appeals for the Ninth Circuit on Wednesday revived a 2003 breach of trust claim by the Navajo Nation that would require the US government to allocate water for the tribe. Going forward, this case will look at whether the government has a fiduciary duty to ensure that the amount of water supplied to the tribe is sufficient “to fulfill the promise of establishing a Navajo Reservation as a homeland for the Nation’s people.”
The lawsuit was previously dismissed in 2017 by the District Court for the District of Arizona for lack of jurisdiction. Disputes over rights to the Colorado River are supposed to be reserved for the US Supreme Court according to the decision in Arizona v. California. The Ninth Circuit reversed the dismissal, determining that the dispute was not about rights to the river, but rather whether the US was breaching its treaty with the Navajo Nation by failing to adequately supply water for reservations in Arizona, Utah and New Mexico.
Water shortages and drought have significantly impacted the Navajo Nation’s ability to combat the spread of COVID-19. Judge Ronald Gould writing for the panel said, “Many homes on the Reservation lack running water, making it difficult for tribal members to wash their hands regularly,” and that the Navajo Nation has “as a result been particularly affected by the current pandemic, with a death rate significantly higher than that of many other parts of the country.”
This victory comes as more than 30 tribes in the Colorado River Basin region are about to begin negotiations with the Department of the Interior to determine the full extent of their water rights as laid out in various treaties between tribes and the government.