The US supreme court on Thursday ruled against the Navajo nation in a dispute involving water from the drought-stricken Colorado River.
Some of the main states that draw water from the river – Arizona, Nevada and Colorado – and water districts in California that are also involved in the case, had urged the court to decide for them, which the justices did in a 5-4 ruling.
Colorado had argued that siding with the Navajo nation would undermine existing agreements over the share of dwindling water supplies and disrupt the management of the river.
The Biden administration had said that if the court were to come down in favor of the Navajo nation, the federal government could face lawsuits from many other tribes.
Lawyers for the Navajo nation, located in the south-west with a resident population of about 175,000 and the largest area of US land held by a Native American tribe, had characterized the tribe’s request as modest, saying they simply were seeking an assessment of the tribe’s water needs and a plan to meet them.
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 promise the Navajo nation says includes a sufficient supply of water. In 2003 the tribe sued the federal government, arguing it had failed to consider or protect the Navajo nation’s water rights to the lower portion of the Colorado River.
A federal trial court initially dismissed the lawsuit, then an appeals court allowed it to go forward.
During arguments in the case in March this year, Justice Samuel Alito, on the bench’s right wing and currently embroiled in a scandal over gifts and his pushback via the media, pointed out that the Navajo nation’s original reservation was hundreds of miles away from the section of the Colorado River it now seeks water from.
Today, the Colorado River flows along what is now the north-western border of the tribe’s reservation, which extends into New Mexico, Utah and Arizona. Two of the river’s tributaries, the San Juan River and the Little Colorado River, also pass alongside and through the reservation. Still, one-third of the approximately 175,000 people who live on the reservation do not have running water in their homes.
The government said it has helped the tribe secure water from the Colorado River’s tributaries and provided money for infrastructure, including pipelines, pumping plants and water treatment facilities. But it said no law or treaty required the government to deal with general water needs.
The states argued that the Navajo nation was attempting to make an end run around a supreme court decree that divvied up water in the river’s lower basin.
The Supreme Court's first decision of the day is Arizona v. Navajo Nation. In a 5–4 opinion, Kavanaugh holds that the federal government is NOT required to secure water for the tribe under an 1868 treaty. Gorsuch and the liberals dissent. https://t.co/OMno9VA1if pic.twitter.com/KgKJ8eDyqC
— Mark Joseph Stern (@mjs_DC) June 22, 2023
It was a 5-4 ruling, written by Justice Brett Kavanaugh.
Justice Neil Gorsuch, typically an ultra-conservative but also a strong champion of Native American rights and tribal sovereignty, dissented alongside liberal-leaning Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
He wrote, in part: “In the Navajos’ view, the federal government’s efforts to assist the Navajos with their water needs did not fully satisfy the trust obligations of the United States under the 1868 treaty.
“The Navajos filed suit seeking to compel the United States to take affirmative steps to secure needed water for the tribe – including 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.
“The states of Arizona, Nevada, and Colorado intervened against the tribe to protect those states’ interests in water from the Colorado River.”
