SCOTUS Rules Government Doesn’t Have to Ensure Navajos Access to Water

The U.S. Supreme Court on Thursday turned down the Navajo Nation’s bid to require the federal government to develop a plan to secure water access for the tribe on reservation lands in the parched American southwest.

The justices, in a 5-4 decision authored by conservative Justice Brett Kavanaugh, concluded that an 1868 peace treaty between the United States and the tribe did not require the government to take steps such as assessing the tribe’s water needs and potentially building pipelines, pumps and wells.

More than 30% of households on the Navajo reservation currently lack running water, according to the tribe.

Conservative Justice Neil Gorsuch, who has supported Native Americans rights in various cases since joining the court in 2017, dissented from the decision along with the court’s three liberal justices.

“The 1868 treaty reserved necessary water to accomplish the purpose of the Navajo Reservation,” Kavanaugh wrote in the ruling. “But the treaty did not require the United States to take affirmative steps to secure water for the Tribe.”

The treaty, reached three years after the conclusion of the U.S. Civil War, ended two decades of sporadic fighting between the United States and the Navajos and established the Navajo Reservation, which encompasses roughly 17 million acres (6.9 million hectares), largely in the Colorado River Basin.

The treaty secured the right of the Navajos to make use of the land, minerals, and water on the reservation, which spans parts of Arizona, New Mexico, and Utah.

The decision is a win for states that rely on the Colorado River, which cascades down from the Rocky Mountains through southwestern U.S. deserts. So much water is siphoned off that it rarely reaches Mexico’s Gulf of California anymore. The ruling maintains the status quo in already difficult negotiations brokered by the Biden administration over how to share the river’s shrinking flows.

THE COURT READ TOO MUCH INTO THE REQUEST

As Gorsuch said, all the Navajos wanted was to identify the water rights that the U.S. government holds in trust on the tribe’s behalf.

“The government owes the Tribe at least that much,” Gorsuch wrote.

“Where do the Navajo go from here?” Justice Neil Gorsuch wrote in the dissent. They “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.”

The ruling reversed a decision by the San Francisco-based 9th U.S. Circuit Court of Appeals that had given a green light to the Navajo Nation’s lawsuit against the U.S. Interior Department and others seeking to prod the government to develop a plan to secure water for the tribe. The 9th Circuit said that the government had a “duty to protect and preserve the Nation’s right to water.”

As a result of the ruling, if the Navajo Nation wants access to water from the lower Colorado River, Congress must act or the tribe needs to ask the Supreme Court to reopen a prior case that allocated water between states, said attorney Rita McGuire, who represented southwestern states that opposed the tribe.

“We’re very pleased,” she said.

Gorsuch said the Navajo Nation might be able to assert such a claim.

The Department of the Interior will reconsider its decision.

Without knowing the details, the US forced the Navajos on this reservation. The government should make sure they have water or access to it. If we can spend billions on illegal aliens, we can spend money on Navajos.

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