June 23, 2023

Supreme Court rules 5-4 against Navajo Nation in water rights case

The Glen Canyon Dam is pictured in May 2022 in Page, Arizona.

The U.S. Supreme Court ruled against the Navajo Nation in a Colorado River water dispute on Thursday.

The case centered around the 1868 treaty that established the Navajo reservation. The Nation argued that the federal government breached its contract and failed to ensure there was adequate water for the Navajo people.

The case particularly centered around Colorado River rights in Arizona.

The Supreme Court ruled 5-4 against the Tribe with Justice Brett Kavanaugh writing the majority opinion and Justice Neil Gorsuch filing the dissenting opinion. 

Navajo Nation President Buu Nygren said in a statement that, while the ruling is disappointing, it is encouraging that the ruling was 5-4.

“It is reassuring that four justices understood our case and our arguments,” he said.

The majority opinion focuses on the idea that the Tribe is seeking the federal government to take affirmative steps to secure water for the Navajo people, though Gorsuch argues that is not what the Navajo Nation sought.

“Much of the western United States is arid,” Justice Brett Kavanaugh wrote in the majority opinion. “Water has long been scarce, and the problem is getting worse. From 2000 through 2022, the region faced the driest 23-year period in more than a century and one of the driest periods in the last 1,200 years. And the situation is expected to grow more severe in future years. So even though the Navajo Reservation encompasses numerous water sources and the Tribe has the right to use needed water from those sources, the Navajos face the same water scarcity problem that many in the western United States face.”

The tribe filed suit in an attempt to compel the federal government to secure water for the Navajo people. The Nation sought steps that included an assessment of water needs on the reservation, development of a plan to secure the water needed and, potentially, building pipelines, pumps, wells and other infrastructure.

Three states—Arizona, Nevada and Colorado—intervened in the dispute against the Navajo Nation.

The Supreme Court ruled that the 1868 treaty reserved water for the Navajo reservation but did not require the federal government to take affirmative steps to secure water for the Nation. 

Kavanaugh wrote that the treaty did require the U.S. to meet certain obligations such as providing teachers and building facilities such as schools, a blacksmith’s shop, a chapel and a carpenter shop.

“But the treaty said nothing about any affirmative duty for the United States to secure water,” Kavanaugh wrote.

But Gorsuch argued that the request was not about the Navajo Nation seeking to compel the federal government to take affirmative steps to secure water for the Navajo people. 

“Everyone agrees the Navajo received enforceable water rights by treaty,” Gorsuch wrote. “Everyone agrees the United States holds some of those water rights in trust on the Tribe’s behalf. And everyone agrees the extent of those rights has never been assessed. Adding those pieces together, the Navajo have a simple ask: They want the United States to identify the water rights it holds for them. And if the United States has misappropriated the Navajo’s water rights, the Tribe asks it to formulate a plan to stop doing so prospectively.”

Gorsuch goes into the history of the Navajo reservation and says that the Navajo people were essentially “starved into surrender” by the United States. He then writes about the Long Walk, a forced removal of the Navajo people from their homeland to Bosque Redondo, where the Navajo people struggled with lack of water. Gorsuch writes that 2,000 Navajo people died at Bosque Redondo in four years.

The Navajo people were later allowed to return to their homeland and a reservation was established for them in Arizona, New Mexico and Utah. This reservation was already smaller than promised, Gorsuch writes.

Gorsuch states that the Navajo Reservation is now the largest Native American reservation in the United States, with more than 17 million acres and more than 300,000 members.

“Its western boundary runs alongside a vast stretch of the Colorado River. Yet even today, water remains a precious resource,” he stated.

He further highlighted that members of the Navajo Nation use a fraction of the amount of water that the average American household uses—around seven gallons of water per day for all their household needs—and in some parts of the reservation as many as 91 percent of the households lack access to water. 

“That deficit owes in part to the fact that no one has ever assessed what water rights the Navajo possess,” Gorsuch states.

The Tribe has repeatedly asked for an assessment of what water rights it holds on the Colorado River, but has received notices that the Department of the Interior has not made any decisions regarding what water rights, if any, the federal government holds in trust for the Navajo Nation.

Nygren said the Navajo Nation lawyers are assessing what the Supreme Court ruling means for the tribe. At the same time, he said he remains undeterred in securing water rights.

“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. My job as the President of the Navajo Nation is to represent and protect the Navajo people, our land, and our future,” he said. “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.”