The U.S. Supreme Court ruled 5-4 against a Colorado River water rights request from the Navajo Nation, agreeing with three states that siding with the tribe would have undermined existing agreements and thrown current management plans into disarray.
The Navajo Nation argued that treaties signed in 1849 and 1868 compel the U.S. 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,” as the Supreme Court’s summary of the case explained.
Justice Brett Kavanaugh, in his majority opinion, said the “affirmative steps” that the Navajo wanted the U.S. to take were not mandated by the treaty any more than farming, mining, harvesting timber or building infrastructure would be.
“Just as there is no such duty with respect to the land, there likewise is no such duty with respect to the water,” Kavanaugh wrote.
The Biden Administration said other tribes might have sued if the ruling had gone in favor of the Navajo Nation. Meanwhile, lawyers for the Navajo Nation said all the tribe wanted was for the government to assess their water needs and construct a plan to meet them. About a third of the nation’s 175,000 residents do not have running water.
Dissenting Justice Neil Gorsuch agreed that the Navajo were not asking for much.
“The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another,” Gorsuch wrote in his opinion. “Where do the Navajo go from here?”
The indigenous nation filed suit originally in 2003, seeking to compel the federal government to include the tribe in an assessment of water rights. Arizona, Nevada and Colorado pushed back, saying that it would jeopardize existing, hard-won agreements. The Navajo Nation’s complaint was dismissed by the U. S. District Court for the District of Arizona, a decision that was then reversed by the Ninth Circuit.
The case made it to the Supreme Court late last year, and the Justices heard oral arguments in March. They have now reversed the Ninth Circuit decision.
“Today’s ruling is disappointing, and I am encouraged that the ruling was 5-4,” Navajo Nation President Buu Nygren said in a statement. “It is reassuring that four justices understood our case and our arguments.”