Colorado River

Feds Duck Hard Questions with Dismissal of Navajo Lawsuit

Anne Minard

A Navajo lawsuit to force the federal government to honor tribal claims to the Colorado River was dismissed on procedural grounds in federal court earlier this month.

On the one hand, the lawsuit’s fate doesn’t have a direct bearing on Navajos’ rights to water from Colorado River. On the other, it casts doubt on whether those rights will ever actually be quantified.

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Many tribes possess claims to Western rivers that are senior to those asserted by the states and other water users. That’s because of a 1908 court case, Winters v. United States, which ties tribal water claims to the establishment of reservations. But the vague historic claims – enough water to turn reservations into permanent homelands – must be quantified in the courts, in a process called adjudication, to become usable rights to water. As of 2013, 13 Arizona tribes have settled all or part of their claims to nearby watersheds, another four are in ongoing processes to do so, and seven have claims that have not been brought up in adjudications at all.

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Scott McElroy, a Boulder, Colorado attorney who has helped represent the Navajo Nation in the suit, said that on other Arizona watersheds, including the Little Colorado and Gila rivers, the state of Arizona has initiated adjudications, so the state would know how much water it could use once tribal rights were settled. In those cases, the state has waived its sovereign immunity in order to go to court. But on the Colorado River, the Secretary of the Interior has authorized no less than five inter-state water deals spanning more than a decade. At most, they give a nod to unadjudicated tribal claims to the water. Meanwhile, Arizona and neighboring states are sharing and using the water as if tribal claims don’t exist. And in the recent Navajo suit, Arizona revealed its position that its sovereign immunity would block any lawsuit to quantify tribal claims.

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