Supreme Court rejects Navajo Nation argument for federal assistance in Colorado River Basin
The U.S. Supreme Court sided with Western states over the Navajo Nation on Thursday in a yearslong dispute over access to the Colorado River and whether the government is upholding its end of a 155-year-old treaty.
The Navajo Nation has long claimed that the federal government is required by a treaty signed in 1868 to do more to meet the reservation’s water needs, where an estimated 30% to 40% of residents lack access to clean running water.
The treaty created the Navajo Nation reservation, a designation that includes an obligation by the U.S. to supply the tribe with water. The Navajo Nation originally sued in 2003, arguing the federal government violated its “treaty-based duty.”
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And while the justices acknowledged the obligation to supply the tribe with water, in a 5-4 ruling the court said the Navajo Nation’s request goes beyond what the treaty spells out.
“The treaty does not require the United States to take those affirmative steps. And 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,” said Justice Brett Kavanaugh, who wrote for the majority, which consisted of conservative justices.
States that rely on the Colorado River — specifically Arizona, Nevada and Colorado — said the tribe’s request could upend the fragile system of water allocation in the river’s basin. And lawyers for the Biden administration, in an argument that mirrored Kavanaugh’s, said while the government is committed to helping the tribe, the treaty does not require it to build water infrastructure.
Attorneys for the Navajo Nation said they were merely asking the government to assess and create a plan around the tribe’s water needs.
That includes “potentially building pipelines, pumps, wells, or other water infrastructure — either to facilitate better access to water on the reservation or to transport off-reservation water onto the reservation,” Kavanaugh wrote.
In his dissenting opinion, Justice Neil Gorsuch pushed back on that claim.
“The Tribe’s lawsuit asks for nothing of the sort. The Tribe expressly disavows any suggestion that, ‘as a matter of treaty interpretation ... the United States is legally obligated to pay for pipelines or aquifers,’” wrote Gorsuch, the only dissenting conservative justice.
Rather, the tribe’s complaint simply asks the federal government “to determine the water required to ... fulfill the promise(s) made to them under the Treaty of 1868,” Gorsuch said.
Heather Tanana, a research professor at the University of Utah’s S.J. Quinney College of Law’s Stegner Center, says what the states and the federal government argued, and what the court ultimately described in the ruling, was not what the Navajo Nation was asking for.
“The states, in particular, were saying ‘this is about Colorado River management. It’s going to threaten everything in the basin if the Navajo Nation is allowed to proceed,’” she said, when in reality the tribe was requesting “some accounting of an asset they’re holding in trust, and have assumed control over.”
In a statement, Navajo leaders expressed their disappointment in the ruling, but were optimistic about negotiations to quantify the tribe’s water right in Arizona. At 27,000 square miles, the Navajo Nation is the country’s largest reservation, spanning Arizona and parts of Utah and New Mexico.
Yet it still has no quantifiable water rights in Arizona, a process that Navajo Nation President Buu Nygren says is ongoing.
“As our lawyers continue to analyze the opinion and determine what it means for this particular lawsuit, I remain undeterred in obtaining quantified water rights for the Navajo Nation in Arizona. The Navajo Nation established a water rights negotiation team earlier this year and we are working very hard to settle our water rights in Arizona,” Nygren said.
“My job as the President of the Navajo Nation is to represent and protect the Navajo people, our land, and our future. The only way to do that is with secure, quantified water rights to the Lower Basin of the Colorado River. I am confident that we will be able to achieve a settlement promptly and ensure the health and safety of my people. And in addition, the health and productivity of the entire Colorado River Basin, which serves up to thirty tribes and tens of millions of people who have come to rely on the Colorado River,” he said.
Nygren also said it was encouraging that four justices ruled in favor of the tribe.
Tanana says the ruling won’t change the current situation for the Navajo Nation, or any of the 30 sovereign tribes in the Colorado River Basin.
“Tribes just have to continue doing what they can without the assistance of the federal government,” she said. “Broken promises are nothing new to tribes.”
But had the court ruled in favor of the tribe — and completed a thorough assessment, like the Navajo Nation’s lawyers argued for — it could have created a framework for the tribe to use in the current water negotiations with Arizona.
“This would have been a really great tool to help tribes close the water gap, have economic growth in their communities, and be on a more equal playing field with other states in the basin when it comes to management,” she said.
