A divided Supreme Court ruled against the Navajo Nation on Thursday, finding that an 1868 treaty does not require the U.S. to take affirmative steps to secure water for the tribe on a reservation.
The 5-4 decision, written by Justice Brett M. Kavanaugh, concluded that the treaty “reserved necessary water to accomplish the purpose of the Navajo Reservation,” and that it is “not the Judiciary’s role to rewrite and update this 155-year-old treaty.”
“Rather, Congress and the President may enact — and often have enacted — laws to assist the citizens of the western United States, including the Navajos, with their water needs,” Kavanaugh wrote in the majority opinion.
In court filings, the tribe contended that an 1868 treaty promised both land and water sufficient for the Navajos to return to a permanent home in their ancestral territory. That wades into the contentious history of divvying up the dwindling flow of the Colorado River among the states in the river’s basin.
Many Navajo households live on a small fraction of the water most Americans use per day, according to the tribe. More than 30 percent of the reservation lacks running water. And water hauled from miles away costs multiple times more.
The Supreme Court found that the U.S. government is not required to take the steps the tribe sought. That includes assessing the tribe’s water needs or potentially building water infrastructure — either to improve water access on the reservation or to bring water that’s off reservation onto the reservation.
The Biden administration and several states in the water-starved southwest had opposed the Navajo Nation arguments, and instead said that supplying the tribe with water would mean shortchanging others who rely on the Colorado River.
The Navajo Reservation today spans more than 17 million acres in the Upper and Lower Basins of the Colorado River in Utah, Arizona and New Mexico.
The case stems from a ruling by the U.S. Court of Appeals for the 9th Circuit that kept alive the tribe’s long-running legal effort to force the government to come up with a plan to provide enough water.
Justice Neil M. Gorsuch, in a dissenting opinion joined by the three justices on the liberal wing of the court, wrote that the court was rejecting “a request the Navajo Nation never made.”
The conservative justice wrote that the case is not about compelling the U.S. government to take affirmative steps to secure water for the Navajos, and that the relief sought by the tribe “is far more modest.”
“They want the United States to identify the water rights it holds for them. And if the United States has misappropriated the Navajo’s water rights, the Tribe asks it to formulate a plan to stop doing so prospectively,” Gorsuch wrote. “Because there is nothing remarkable about any of this, I would affirm the Ninth Circuit’s judgment and allow the Navajo’s case to proceed.”
The decision is the latest on Native American sovereignty, including a case earlier this month that upheld the Indian Child Welfare Act, a 1978 law that prioritizes that Native American children be fostered or adopted by Native American families.
The court found in a 7-2 decision that Congress has broad power over the U.S. relationship with Native American tribes, and the adoption law falls within that scope.
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