Global Courant
The Supreme Court on Thursday ruled against the Navajo Nation in a dispute over water from the drought-stricken Colorado River.
States that draw water from the river — Arizona, Nevada and Colorado — and California water districts also involved in the case had urged the court to rule for them, which the judges did in a 5-4 ruling. Colorado had argued that the Navajo Nation side would undermine existing agreements and interfere with management of the river.
The Biden administration had said that if the court ruled in favor of the Navajo nation, the federal government would face lawsuits from many other tribes.
Navajo Nation lawyers characterized the tribe’s request as modest, saying they were simply seeking an assessment of the tribe’s water needs and a plan to meet them.
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The facts of the case go back to treaties that the tribe and the federal government signed in 1849 and 1868. The second treaty established the reservation as the tribe’s “permanent home”—a pledge that, according to the Navajo Nation, would provide an adequate supply of water means. In 2003, the tribe sued the federal government, arguing that it failed to consider or protect the Navajo Nation’s water rights to the lower Colorado River.
Writing for a majority consisting of conservative justices, Justice Brett Kavanaugh explained that “The Navajos argue that the treaty requires the United States to take affirmative steps to secure water for the Navajos—for example, by assessing the tribe’s water needs, a develop a plan to secure the necessary water and possibly build pipelines, pumps, wells or other water infrastructure.”
The Upper Basin Colorado River is pictured in Lees Ferry, Arizona, on May 29, 2021. (AP photo/Ross D. Franklin, file)
But, Kavanaugh said, “In light of the text and history of the treaty, we conclude that the treaty does not require the United States to take those affirmative steps.”
Kavanaugh acknowledged that water issues are difficult.
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“Allocating water in the arid regions of the American West is often a zero-sum problem,” he wrote. It is important, he said, that courts “leave to Congress and the president the responsibility to enact appropriation laws and otherwise update federal law as they see fit in light of today’s competing needs for water.”
A federal court initially dismissed the lawsuit, but an appeals court allowed it to continue. The decision of the Supreme Court overturns that decision of the Court of Appeal.
A sign marks Navajo Drive, while Sentinel Mesa, homes and other buildings in Oljato-Monument Valley, Utah, on the Navajo Reservation, stand in the distance on April 30, 2020. (AP Photo/Carolyn Kaster, File)
In a dissenting opinion, Judge Neil Gorsuch wrote that he would have continued the case and characterized the Navajo’s position as a “simple question.”
“Where do the Navajo go from here?” He wrote. “To date, their efforts to find out what water rights the United States holds for them has yielded an experience familiar to any American who has spent time at the Department of Motor Vehicles. The Navajo have waited patiently for someone, whoever also, to help them, only to be told (repeatedly) they’ve been in the wrong line and have to try another one.”
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Gorsuch said a “silver lining” of the case may be that his colleagues recognized in the majority that the tribe may still be able to “defend the interests they claim in water rights lawsuits, including by attempting to intervene in matters affecting their claimed interests”. .”
Gorsuch, a conservative, was joined by the court’s three liberals: Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
During arguments in the case in March, Judge Samuel Alito pointed out that the Navajo Nation’s original reservation was hundreds of miles from the portion of the Colorado River it now seeks water from.
Today, the Colorado River flows along what is now the northwestern border of the tribe’s reservation, stretching into New Mexico, Utah, and Arizona. Two of the river’s tributaries, the San Juan River and the Little Colorado River, also pass by and through the reservation. Yet a third of the approximately 175,000 people living on the reservation, the largest in the country, do not have access to running water.
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The government argued that it helped the tribe secure water from Colorado River tributaries and provided funds for infrastructure, including pipelines, pumping facilities and water treatment plants. But it said there was no law or treaty requiring the government to assess and address the tribe’s overall water needs. The states involved in the case argued that the Navajo nation was trying to end a Supreme Court order that divided water in the Lower Basin of the Colorado River.
