WASHINGTON (CN) — The Supreme Court absolved the federal government on Thursday of its responsibility to provide the Navajo Nation with water rights to the Colorado River.
“The 1868 treaty reserved necessary water to accomplish the purpose of the Navajo Reservation,” Justice Brett Kavanaugh wrote for the 5-4 majority. “But the treaty did not require the United States to take affirmative steps to secure water for the Tribe.”
Had it needed to take affirmative steps to secure such water access, the Trump appointee said the United States would have had to undertake an assessment of the tribe’s water needs, then develop a plan to secure the water, and finally to create the necessary infrastructure like pipelines, pumps and wells.
“In light of the treaty’s text and history, we conclude that the treaty does not require the United States to take those affirmative steps,” Kavanaugh wrote. “And it is not the Judiciary’s role to rewrite and update this 155-year-old treaty.”
Justice Neil Gorsuch — joined by the court's three liberal members — dissented, claiming the court misinterpreted the tribe's ask. Gorsuch compared the Navajo Nation's fight for water rights to waiting in line at the Department of Motor Vehicles.
“To date, their efforts to find out what water rights the United States holds for them have produced an experience familiar to any American who has spent time at the Department of Motor Vehicles,” Gorsuch wrote. “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.”
For over a century, the Navajo Nation have been fighting for resources from what is often regarded as the American Nile. The Colorado River, beginning in the central Rocky Mountains of Colorado and flowing for 1,300 miles through Colorado, Utah and Arizona, serves around 36 million people. The river also flows along the Arizona-Nevada and Arizona-California borders and passes into Mexico.
The Navajo's reservation meanwhile spans over 17 million acres across arid stretches of the American Southwest — Utah, Arizona and New Mexico. Despite sharing a border with the mainstream of the Colorado River and including land within the upper and lower basins, the tribe has had to fight with the states along its borders for a right to the region’s hottest commodity: water.
New Mexico and Utah came to agreements with the Navajo Nation over these rights, but Arizona has been a holdout. In 2003 the tribe sued Arizona and the U.S. government over the failure to protect its water rights. The tribe accused Arizona of having violated the National Environmental Policy Act of 1969 and said the government violated its trust obligations.
Settlement negotiations lasted a decade before a federal judge dismissed the case in 2013. In a partial reversal, the Ninth Circuit said the Navajo Nation had a breach-of-trust claim. The district court dismissed the suit again, but the appeals court reversed for the second time. Last year, the Supreme Court added the case to its docket, taking up the question of the government’s duty to assess the Navajo’s water needs.
When the court heard oral arguments in March, the justices were forced to sort through the tenuous history of water rights in a region where rulings from their predecessors govern. The court had said in 1908, for example, that when Congress reserves land — such as in a reservation — it also reserves the water to support that land. Winters v. United States supported tribes’ rights to water and the Navajo relied heavily on the ruling in their arguments before the court.
“The United States has taken on the fiduciary obligation to ensure our Winters rights,” Skadden Arps attorney Shay Dvoretzky, representing the Navajo, said during oral arguments. “The United States itself believes that it holds the Winters rights in trust. The very first step that it needs to take is to assess and figure out its plan for how those Winters rights will be satisfied and met. And so it is the United States' duty to figure out where that water ought to come from.”
Sixty years ago, however, the justices decided another case, Arizona v. California, to settle water division between Arizona, California and Nevada. The ruling also specified some tribes’ rights to water but the Navajo were excluded from that apportionment.
Kavanaugh said the tribe was incorrect to assume the 1868 treaty would force the government to secure their water rights because the agreement set aside a reservation for the tribe. This move did not create any rights or duties for the tribe, Kavanaugh said.
Officials who drafted the 1868 treaty could not have imagined the problem facing the tribe today, but the majority emphasized that the executive and Congress would need to act now to solve these issues.
“Of course, it is not surprising that a treaty ratified in 1868 did not envision and provide for all of the Navajos’ current water needs 155 years later, in 2023,” Kavanaugh wrote. “Under the Constitution’s separation of powers, Congress and the President may update the law to meet modern policy priorities and needs.”
Gorsuch denied, however, that the Navajo Nation was asking the government to take “affirmative steps” to secure their water access. He said they needed it only to identify what water rights were already reserved for them. Gorsuch said the United States already holds the tribe’s water rights in trust and it controls many possible sources of water where the tribe could assert water rights. The duty that is owed to the tribe, Gorsuch continued, is the management of that water.
“In this lawsuit, the Navajo ask the United States to fulfill part of that duty by assessing what water rights it holds for them,” the Trump appointee wrote. “The government owes the Tribe at least that much.”
The states said the ruling clarified the role of the federal government in the fight over water in the Colorado River.
“I think today’s ruling by the Court makes it clear that the federal government can have no trust duty to a tribe without clear direction by treaty or Congress,” Rita Maguire, an Arizona attorney representing the states, said in an email. “Here, the Navajo’s treaty did not require the government to ‘take affirmative steps’ to secure water from the Lower Colorado River.”
Attorneys for the Navajo Nation did not immediately respond to a request for comment on the ruling.
Follow @KelseyReichmann
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