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The Supreme Court will hear a 20-year-old case on giving the Navajo Nation access to a water source

AYESHA RASCOE, HOST:

The Navajo Nation has been working through the courts for 20 years to get water from the Colorado River Basin. But water in the Southwest is precious, and some of the nearby states don't want to give up any of it. So far, the tribe's not gotten very far. It's still trying to establish that it even has the right to file a lawsuit over the water. That's at the heart of a hearing the U.S. Supreme Court will hold tomorrow. To understand what's at stake, we're joined by Heather Tanana of the S.J. Quinney College of Law at the University of Utah. She's also a citizen of the Navajo Nation. Professor Tanana, welcome to the program.

HEATHER TANANA: (Non-English language spoken). Thanks for having me.

RASCOE: Why does the Navajo Nation say it has a right to water from the Colorado River or other sources?

TANANA: That claim really stems from federal policies of removing tribes and their citizens westward and onto reservations. And when they established these reservations, that came with the promise that those lands would be permanent homelands for the tribe and their people. And I think everyone would agree you can't have a homeland of any kind without water. It's so critical to daily life, economic growth, public health. And so that's where tribal rights to water stem from.

RASCOE: So just to be clear, what the Navajo Nation right now is trying to get the court to rule on is whether the federal government has the responsibility to make sure they have sufficient water. Is that correct?

TANANA: Yeah, and it's really including that planning phase, as well, assessing and planning for the Navajo Nation's water needs. And the water needs of the tribe to make it a permanent homeland - right? - that includes a lot of different things. There's domestic use, water that's needed for schools, for hospitals and economic development. And so what the tribe is asking is that the government have to help them, that they have to help them assess that and identify all those different needs and then come up with a plan to get those various needs met.

RASCOE: So a number of local water authorities, as well as the federal government, have tried to block the tribe from pursuing a lawsuit. Like, what is their argument about this?

TANANA: Yeah, there's a couple of different arguments being made. One is that tribes cannot bring a claim that the federal government violated a trust duty without pointing to a specific piece of law. The other argument that states are making is that the 9th Circuit decision finding that the federal government can assess and plan for Navajo Nation's needs out of the mainstream - that that interferes and infringes on the Supreme Court's authority, that it's really only the Supreme Court that can manage and make decisions about allocations from the lower mainstream.

RASCOE: The Biden administration pledged to strengthen relationships with tribal nations when he came into office. Does its opposition in this case feel like a back step?

TANANA: For me, it's frustrating to see that the administration came out so strongly with all these proclamations, and it seems like when it comes down to trying to get something that's enforceable that the government has to abide by, then they're backing off.

RASCOE: You know, recognizing that it's very hard to predict what the Supreme Court will do, but, I mean, with the makeup of the current Supreme Court, what do you think this case will hinge on as far as the decisions? And what will you be looking out for?

TANANA: The Supreme Court makeup right now has the benefit of having Gorsuch on board. And he's someone who has experience with federal Indian law cases who has shown that he really understands the history in this country of federal tribal-state relations. And that's unique, and we haven't had that really on the bench before. What I hope is that his knowledge will come through and help educate the other justices of the court, and they'll really put a high priority on federal responsibility. Again, the real issue is, is there this trust responsibility on behalf of the federal government? Because there isn't enough water, but that doesn't mean that the Navajo Nation does not have valid rights that should be enforced, that they should have the ability to develop their water and then play on a same level with every other stakeholder in the basin, contribute to marketing or leasing or other solutions for climate change.

RASCOE: That's Heather Tanana, Stegner Fellow at the S.J. Quinney College of Law and associate faculty at the Johns Hopkins Center for Indigenous Health. Professor Tanana, thank you so much for joining us.

TANANA: Thank you. (Non-English language spoken). Transcript provided by NPR, Copyright NPR.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.