On Thursday, the Supreme Court issued a decision that the Navajo Nation should not get water from the Colorado River because of the ongoing drought.
Arizona, Nevada, and Colorado, three states that take water from the river, as well as water agencies in California that are also interested in the lawsuit, had urged the court to make the decision for them, and the justices agreed in a 5-4 decision. Colorado had contended that supporting the Navajo Nation would jeopardise current accords and interfere with river management.
The Biden administration had warned that the federal government might be sued by numerous other tribes if the court ruled in the Navajo Nation’s favour.
The Navajo Nation’s attorneys had described the tribe’s request as modest, stating that all that was needed was an evaluation of the tribe’s water requirements and a strategy for meeting them.
The case’s facts can be traced back to the 1849 and 1868 treaties that the tribe and the federal government signed. In the second treaty, the tribe was promised a “permanent home” on the reservation, which according to the Navajo Nation also includes access to enough water. The Navajo Nation’s water rights to the lower Colorado River were not taken into account or adequately protected, the tribe claimed in a 2003 lawsuit against the federal government.
Justice Brett Kavanaugh wrote for a majority of conservative justices, stating that “the Navajos contend 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, developing a plan to secure the needed water, and potentially building pipelines, pumps, wells, or other water infrastructure.”
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However, Kavanaugh noted that “in light of the treaty’s text and history, we conclude that the treaty does not require the United States to take those affirmative steps.”
Kavanaugh acknowledged the complexity of the topic of water.
In the dry areas of the American West, water allocation frequently results in a zero-sum game, he said. According to him, it’s crucial that courts defer “to Congress and the President the responsibility to enact appropriations laws and to otherwise update federal law as they see fit in light of the competing contemporary needs for water.”
The lawsuit was first dismissed by a federal trial court, but an appeals court permitted it to continue. The decision of the Supreme Court overturns the decision made by the appeals court.
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Justice Neil Gorsuch expressed his disagreement with the ruling in a dissenting opinion, calling the Navajos’ position “a simple ask.”
He said, “Where do the Navajo go from here?” They have so far encountered a situation that is familiar to any American who has visited the Department of Motor Vehicles in the course of trying to determine what water rights the United States maintains for them. The Navajo have patiently waited for someone, anybody, to assist them only to continuously be informed that they are in the incorrect queue and need to try another.
One “silver lining” of the decision, according to Gorsuch, may be that his fellow justices in the majority acknowledged that the tribe may still be able to “assert the interests they claim in water rights litigation, including by seeking to intervene in cases that affect their claimed interests.”
The three liberal justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson joined Gorsuch, a conservative, on the court.
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Justice Samuel Alito brought up the fact that the Navajo Nation’s original reservation was hundreds of miles away from the portion of the Colorado River that it now wants water from during the case’s oral arguments in March.
Today, the reservation of the tribe, which also includes parts of New Mexico, Utah, and Arizona, is bordered on its northwest by the Colorado River. The San Juan River and the Little Colorado River, two of the river’s tributaries, also run parallel to and through the reserve. The largest reservation in the nation is home to some 175,000 people, yet one-third of them do not have running water.
The government maintained that by funding pipelines, pumping stations, and water treatment facilities, it had made it easier for the tribe to obtain water from the Colorado River’s tributaries. However, it stated that neither a treaty nor a law obligated the government to determine and provide the tribe’s general water needs. The states interested in the case contended that the Navajo Nation was trying to evade a Supreme Court ruling that divided up water in the Lower Basin of the Colorado River.
