The Supreme Court rejected a Navajo Nation lawsuit Thursday over access to the drought-plagued Colorado River.
The high court determined by a 5-4 vote that a treaty signed more than 150 years ago did not require the federal government develop a plan to ensure the tribe had adequate water supplies.
“In short, the 1868 treaty did not impose a duty on the United States to take affirmative steps to secure water for the Tribe – including the steps requested by the Navajos here, such as determining the water needs of the Tribe, providing an accounting, or developing a plan to secure the needed water,” Justice Brett Kavanaugh wrote in his majority opinion, which was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett.
Justice Neil Gorsuch joined liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson in dissenting.
In the Navajo Treaty of 1868, the US government agreed to “‘set apart’ a reservation for the ‘use and occupation of the Navajo tribe.’” Lawyers for the Navajo Nation argued this language amounted to assurances they would be provided with an ample water supply.
“The promise of a permanent home necessarily implies certain benefits for the Tribe (and certain responsibilities for the United States). One set of those benefits and responsibilities concerns water. This Court long ago recognized as much,” Gorsuch wrote in his dissent.
In the 1908 Winters v. United States case that Gorsuch referenced, the high court concluded that the establishment of a reservation implied tribes had certain water rights.
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Lawyers for the tribe further contended that they simply wanted the government to evaluate the Navajo’s water needs and draft a plan to remedy it. Attorney Shay Dvoretzky argued the tribe merely sought its “fair share” of water through a ”fair process.”
Meanwhile, the Biden administration and allied states countered that a ruling in favor of the Navajo Nation could open a Pandora’s box leading to a bevy of lawsuits from other tribes with similar demands, or upend existing water agreements between states.
Further complicating the matter is the already low water levels of the Colorado River, with has led to disputes between multiple Western states over access.
“If there is any silver lining here it may be this,” Gorsuch added, “the Court does not pass on other potential pleadings the Tribe might offer, such as those alleging direct interference with their water rights. Importantly, too, the Court recognizes that the Navajo ‘may be able to assert the interests they claim in water rights litigation, including by seeking to intervene in cases that affect their claimed interests.’”
Before the case made its way to the Supreme Court, it was dismissed in a federal trial court. An appeals court gave it the green light to continue, but now the high court’s decision has reversed that.
The Colorado River flows near the northwestern edge of the Navajo Nation, whose massive reservation covers parts of Arizona, New Mexico, and Utah.
Roughly a third of residents in the reservation, the largest in the US, do not have running water, according to the tribe.
