WASHINGTON, D.C. — Tribal leaders are calling on the Biden administration to re-examine its commitment to the nation-to-nation relationship following “shocking” arguments in a closely-watched U.S. Supreme Court case.

The Coalition of Large Tribes (COLT), which represents Indian nations with the largest land bases in the United States, said an attorney from the Department of Justice (DOJ) displayed “callous disrespect for tribal treaty rights” during a lengthy hearing on Monday morning. In a statement, the organization accused the federal government’s legal agency of undermining President Joe Biden’s stated commitments to Indian Country.

“The callous disrespect for tribal treaty rights shown by the United States Department of Justice is shocking,” COLT said after the arguments. “DOJ routinely undercuts all the good work other departments are doing to uplift Indian Country.”

“It does not matter how much goodwill is elsewhere in the administration if DOJ continues to spout outdated colonialist arguments in the courts,” the tribal organization continued. “Honoring treaty obligations cannot be accomplished if your first step is always to argue you don’t have any obligations.”

At the beginning of the Supreme Court hearing, government attorney Fredrick Liu said the Navajo Nation undoubtedly reserved water rights on the largest reservation in the country through treaties signed with the United States. The Navajo Nation is one of the member tribes of COLT, which submitted a brief as part of the case.

“There’s no dispute about that,” Liu, who serves as an Assistant to the Solicitor General at DOJ, said of the tribe’s treaty rights.

But under repeated questioning from several justices, Liu said the United States could do whatever it wants with the Navajo Nation’s water supply — even by erecting a dam to stop the reservation from receiving water from the Colorado River. He further told the Supreme Court that the tribe wouldn’t be able to hold the federal government responsible for such a transgression.

“Could the United States dam the Little Colorado right above the reservation and prevent water from flowing into the reservation?” inquired Justice Neil Gorsuch, who joined the high court with the strongest background in Indian law and policy in history.

“It could do that as a matter of fact,” responded Liu.

Gorsuch, who has written several pro-tribal opinions since becoming a justice in 2017 following his nomination by then-president Donald Trump, didn’t appear to be satisfied with the response.

“Okay,” Gorsuch said. “So, clearly, there is a duty to provide some water to this tribe under the treaty, right?”

“No,” Liu stated, seemingly undercutting the remarks he made at the beginning of his hour-long presentation.

“Well, hold on. What am I missing?” replied Gorsuch, who previously served on the 10th Circuit Court of Appeals, where he heard some of the biggest Indian Country cases in recent history.

Gorsuch wasn’t the only one confused by the government’s arguments. Justice Ketanji Brown Jackson, who is the newest member of the court, repeatedly tried to get a clear explanation on why the U.S. government can’t he held accountable for violating its trust and treaty obligations to tribal nations.

“So what I don’t understand is why we don’t have a simple breach of fiduciary duty kind of scenario where anyone who has a trustee controlling their interests can come to court and say the trustee is not doing what it’s supposed to do in terms of those interests,” said Jackson, who made history last year for being the first African American woman on the court.

“I just don’t understand why that’s not where we are in this case,” said Jackson, who was nominated by President Biden.

Liu avoided placing any blame on executive branch in his response to Jackson. Instead, he linked the predicament to prior rulings of the Supreme Court in Indian trust cases.

“It’s because of the distinction this court has drawn,” Liu said, citing two recent cases in which the Navajo Nation lost its breach of trust claims.

In the prior two cases, often referred to as Navajo I and Navajo II, the tribe had won its trust claims at the appellate court level. Only after the U.S. government appealed — as it has done in the case heard on Monday — did the Supreme Court deliver defeat to the tribe.

“We honored our end of the deal, and they just need to honor their end of the deal,” Navajo Nation President Buu Nygren, who took office in January, said after the hearing.

A group of Navajo leaders, including delegates from the Navajo Nation Council, the tribe’s legislative body, attended the oral argument in Arizona v. Navajo Nation and Department of the Interior v. Navajo Nation. The hearing ran for nearly two hours — or twice as long as had been scheduled by the Supreme Court.

“This case goes beyond the fiduciary duty of the federal government,” said Navajo Nation Council Speaker Crystalyne Curley, who is the first woman to serve in the legislative leadership role. “The outcome of this hearing may determine the livelihood of our Navajo people now, and for all future generations.”

“The right to water centers on our right to a permanent homeland through our treaties and the prayers of our ancestors since time immemorial,” said Curley, who grew up in a home on the reservation that lacked running water.

“Our leaders long ago fought for our right to our homeland and that includes the right to water, the right to life,” Curley said of the tribe’s efforts to hold the U.S. responsible for treaties signed in 1849 and 1868.

On Friday, we hosted a gathering of the Upper Colorado River Commission, Upper Basin Tribes and the US Bureau of Reclamation in Lechee, AZ.

The Navajo Nation represents one-third of all people who live on reservations. It is crucial that we secure and protect our water rights. pic.twitter.com/6rX6vZPkzA

— Navajo Nation President Buu Nygren (@BuuVanNygren) March 20, 2023

With the case, the tribe wants the Department of the Interior to assess water needs on the reservation, which spans the states of Arizona, New Mexico and Utah, and develop a plan to meet those needs. Just days before the hearing, Navajo leaders advocated for their rights at a meeting with the U.S. Bureau of Reclamation, which is part of Interior.

“The Navajo Nation represents one-third of all people who live on reservations,” Nygren said of the meeting on Friday with Camille Calimlim Touton, a Biden nominee who serves as Commissioner of the Bureau of Reclamation. “It is crucial that the Navajo Nation secure and protect our water rights.”

During the argument, attorney Shay Dvoretzky noted that residents of the Navajo Reservation use far fewer resources than their neighbors in Arizona, New Mexico and Utah, whose governments have received allocations from the Colorado River. The Navajo Nation has not — and that’s the reason the tribe is in court.

“The average American uses 88 to 100 gallons a day,” Dvoretzky told the justices. “New Mexico is 81, Utah is 169, Arizona is 146.”

“The Navajo Nation is about seven gallons,” said Dvoretzky, who is based in Washington, D.C.

Dvoretzky noted that the water use figures come from the U.S Geological Survey, also part of Interior. A brief submitted by DigDeep Right to Water Project, which has helped bring water to Navajo communities, and the Utah Tribal Relief Foundation, a non-profit that was established during the COVID-19 pandemic to address water and other needs on reservations in Utah, expands on the data.

Most of the inquiries at the hearing were directed to Liu, who represented the Department of the Interior, and to Dvoretzky, who is in private practice. Liu was before the justices for around 52 minutes, including a short rebuttal at the end of the session. Dvoretzky was questioned for about 45 minutes.

In comparison, the justices had little to say to Rita P. Maguire, a water law attorney based in Arizona who represented the states of Arizona, California, Colorado and Nevada, whose governments are seeking to overturn the tribe’s victory at the 9th Circuit Court of Appeals. She took questions for less than 13 minutes.

A decision is expected before the end of the court’s current session, which is expected to conclude in the last week of June. But even if the tribe were to prevail, the question of its allocation from the Colorado River would still have to be resolved, potentially through more litigation. So far, the U.S. government has not allowed the Navajo Nation a seat at the table, a position that has persisted through multiple presidential administrations.

“That may well require litigating on behalf of the Navajos or, at a minimum, allowing them to litigate on behalf of themselves, rather than taking the position the United States has taken — which is that it alone speaks for the Navajos,” Dvoretzky said during the hearing.

As for the Department of Justice (DOJ), Attorney General Merrick Garland has frequently spoken about upholding the nation-to-nation framework between tribal governments and the United States. He has made tribal consultation, public safety in Indian Country and addressing the crisis of missing and murdered Indigenous people, particularly women and girls, priorities as part of his work in the Biden administration.

But the Coalition of Large Tribes (COLT) said DOJ’s efforts don’t go far enough. In the statement on Monday, the organization called attention to the lack of a high-level Native appointee to advise Garland on Indian law and policy matters like the ones at issue in the Navajo Nation’s case.

“DOJ’s approach to Indian Country issues is shameful and COLT is calling it out,” the organization said.

“DOJ’s approach to tribal sovereignty and respect for treaty rights, including access to clean drinking water sufficient for the people of the Navajo homeland, is an antiquated view of the federal government’s responsibility to tribal nations, is incompatible with the overall Biden-Harris Administration’s policy toward indigenous communities, and, consequently, COLT is calling for reconsideration of DOJ’s positions on tribal cases and asking for it to be held accountable for its legal obligations to all of Indian Country,” the tribes said.

Navajo Nation v. Department of the Interior (Filed April 28, 2021 / Amended February 17, 2022)

Transcript
Question Presented: Arizona v. Navajo Nation
Question Presented: Department of the Interior v. Navajo Nation
Docket No. 21-1484: Arizona v. Navajo Nation
Docket No. 22-51: Department of the Interior v. Navajo Nation

Arizona v. Navajo Nation (sct.narf.org)
Department of the Interior v. Navajo Nation (sct.narf.org)