Winters Rights Amidst an Environmental Crisis

By: Chelsi Tsosie

The doctrine under Winters v. United States holds that an establishment of an Indian reservation implies the reservation of “appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation” too. For the Navajo Nation, the Treaty of 1868 established “a permanent homeland.” A permanent homeland requires an adequate supply of water. But what does an adequate supply of water look like amidst an environmental crisis?

As the crisis gets worse, the Navajo Nation can no longer ignore it. Since 2003, the Navajo Nation has been urging the Department of Interior to fulfill its trust duty and provide a plan for the tribe’s water. The Navajo Nation wants to know what will happen with the water they’re entitled to by Winters rights and more broadly, under the federal trust responsibility. The federal Indian trust responsibility is a legal obligation under which the United States “has charged itself with moral obligations of the highest responsibility and trust” toward Indian tribes. It is the “fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources.”

According to the Navajo Nation, the federal government has failed to calculate the amount and sources of water needed for their permanent homeland, thus failing to protect their tribal sovereign interests to secure their water needs. And now, the U.S. Supreme Court has granted certiorari to determine “[w]hether the federal government owes the Navajo Nation an affirmative, judicially enforceable fiduciary duty to assess and address the Navajo Nation’s need for water from particular sources, in the absence of any substantive source of law that expressly establishes such a duty.”

Everyone agrees that water is the foundation of life. It provides food, energy, and healthy living conditions. The Navajo Nation is located within three states: Arizona, New Mexico, and Utah. It  encompasses more than 27,000 square miles. With a population of nearly 400,000 members, water is a priority.

But the Navajo Nation isn’t the only one affected by the drought. The Little Colorado River provides water to a total of seven states. Thus, the rest of the Southwest is also facing extreme drought conditions. Lake Mead, a major source of water for the Southwest, reached a historic low this year. Consequently, the Bureau of Reclamation announced that it will cut Arizona’s river allotment by 21 percent. Extreme drought conditions are likely to persist through 2023 and with ongoing human-induced climate change, the Southwest is on a “megadrought trajectory.” Dry conditions significantly exacerbate the drought. Hotter temperatures lead to the drier land, water evaporates more quickly, groundwater levels decrease, and less water flows into lakes and rivers. As water supply levels decrease, tribal members without quantified water rights are getting nervous.

Although the rest of the Southwest faces extreme drought conditions too, tribal communities may be impacted much more severely. Tribes more often face inequitable effects of climate change, including extreme droughts. In the case of the Navajo Nation, “approximately thirty percent of the. . .population does not have access to clean reliable drinking water.” Water is also used for necessary improvements including irrigation, livestock, commercial, businesses, health care, schools and other facilities. “Throughout the arid southwest, and especially on the Navajo Nation, reliable water supplies are essential for starting and sustaining economic development.” Without water, the Nations’ lack of infrastructure, lack of economic development and poverty endure. The Navajo Nation and other Arizona tribes need an adequate supply of water in order to self-govern and maintain the homeland they were promised.

Climate change will continue to gravely impact tribal water resources. Under the federal trust responsibility, this may mean that tribes are entitled to more water in order to just be on par with the rest of the western states.

Chelsi graduated from Northern Arizona University with a B.S. in Business Administration in Management and Marketing and a M.B.A from the University of New Mexico. She is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. She plans to work within her legal interests centering around tribal economic development or tribal environmental issues.