Mason Fagotti 

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In the wild west only one thing remains wild and that is the scarcity of water. Mark Twain said it best when he wrote, “in the west, whiskey is for drinking and water is for fighting.”[1] The lifeline of the West is the Colorado River.[2] The Colorado River has been relied on by the people of the west since people came to that land. Currently over 40 million people rely on its waters, stretching across seven states (Arizona, Colorado, New Mexico, California, Nevada, Utah, and Wyoming).[3] The drought and growing population in the west has caused a shortage of water in the Colorado River.[4] The growing demand and less water has caused fights over the water, which has resulted in cases, compacts, and treaties.[5] With fights for water there is always a loser.

The loser of our modern age are the people of the Navajo Nation. Even though they have relied on and used the water longer than any other group of people, they are often forgotten in the modern talk of the Colorado River. This is due to the Navajo being left out of the compacts and agreements which have shaped the law of the Colorado River.[6] Additionally, a lack of resources puts the Navajo in a tough position to try and have their rights recognized in court.[7] However, the Supreme Court case Winters v. United States creates an avenue the Navajo could take to get their reserved water rights (established by the 1868 Navajo Treaty) recognized.[8]

Tribes have been using Winters v. United States to get their reserved water rights recognized since the opinion was released.[9] Although the Navajo could take this route, the complexity of the law of the Colorado River, the location of the Navajo Nation, and the current quantifier of reserved water rights hint that an alternative route would be better. Therefore, using the courts to have their reserved water rights recognized is not the best option for the Navajo. Instead, there must be an amendment to the Colorado River Compact.  

This Note argues that Congress must amend the Colorado River Compact to create an avenue for the Navajo Nation to have their reserved water rights recognized, quantified, and apportioned. Part I of this paper shows how the lack of water has affected the Navajo people, which is only getting worse with the looming drought in the west. Part II lays out the legal relationship between tribal nations like the Navajo and the United States Federal Government. Part III provides the current law of the Colorado River, which shows who gets the water and how. Part IV demonstrates why Congress, rather than the courts, should resolve this issue and provides a proposed amendment to the Colorado River Compact. This amendment would create an avenue for the Navajo to have their reserved water rights to the Colorado River recognized. Finally, Part V provides rationale for the amendment and the specific sections of the amendment.

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[1] See Whiskey is for Drinking; Water is for Fighting Over, Quote Investigator, https://quoteinvestigator.com/2013 /06/03/whiskey-water/ (last Visited Apr. 8, 2022) (attributing this quote to Mark Twain, however, this is not verified).

[2] M. John Loeffler & James L. Wescoat, Colorado River, Britannica, https://www.britannica.com/place/Colorado-River-United-States-Mexico/additional-info#history (last visited Apr. 8, 2022).

[3] Abrahm Lustgarten, 40 Million People Rely on the Colorado River. It’s Drying Up Fast., N.Y. Times (Aug. 27, 2021), https://www.nytimes.com/2021/08/27/sunday-review/colorado-river-drying-up.html.

[4] Henry Fountain, In a First, U.S. Declares Shortage on Colorado River, Forcing Water Cuts, N.Y. Times (Aug. 16, 2021), https://www.nytimes.com/2021/08/16/climate/colorado-river-water-cuts.html (displaying the effects of drought and overconsumption on the amount of water available in the Colorado River System).

[5] See Colorado River Compact of 1922, C.R.S. § 37-61-101; Boulder Canyon Project Act, 43 U.S.C. § 617 (1928); Treaty Between the United States and Mexico respecting utilization of waters of the Colorado and Tijuana Rivers and of the Rio Grande, U.S.-Mex., Nov. 8, 1945, 59 Stat. 1219; Arizona v. California, 373 U.S. 546 (1963).

[6] See Colorado River Compact of 1922, C.R.S. § 37-61-101; Boulder Canyon Project Act, 43 U.S.C. § 617 (1928); Colorado River Basin Project Act, 43 U.S.C. § 1521 (1968).

[7]  Emily Shrider, Melissa Kollar, Frances Chen, & Jessica Semega, Income and Poverty in the United States: 2020, U.S. Census Bureau (Sept. 14, 2021), https://www.census .gov/ library/publications/2021/demo/p60-273.html.

[8] Winters v. United States, 28 U.S. 207 (1908); Treaty Between United States and Navajo Tribe, June 1, 1868, 15 Stat. 667.

[9] Winters v. United States, 28 U.S. 207 (1908).