The Supreme Court ruled against the Navajo Nation on Thursday in a water rights case and dismissed the tribe’s lawsuit against the federal government in a dispute over access to the drought-depleted Colorado River system.
The vote was 5 to 4, with Judge Brett M. Kavanaugh writing for the majority. He said the 1868 peace treaty, which was at the heart of the matter, did not require the federal government to take “affirmative steps” to secure water for the Navajo.
Justice Neil M. Gorsuch, joined by the court’s three liberal members, disagreed, saying the tribe’s request was more modest, adding that the government had violated the clear terms of the treaty and the tribe had been given a made an epic turnaround.
“To date, their efforts to find out what water rights the United States holds for them has produced an experience familiar to any American who has spent time with the Department of Motor Vehicles,” he wrote. “The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they were in the wrong line and had to try another one.”
He added that the turnaround had continued for decades: “When this routine first started in earnest, Elvis was still doing his rounds on ‘The Ed Sullivan Show.’
The Navajo tribe is one of the largest in the United States, with more than 300,000 enrolled members, Judge Kavanaugh wrote. And the reservation, a product of the treaty, is the largest in the country, covering more than 17 million acres in parts of Arizona, New Mexico and Utah. It’s about the size of West Virginia.
In the arid West, Judge Kavanaugh wrote, “water has long been scarce and the problem is getting worse.”
The tribe sued the federal government in 2003, trying to force it to assess the tribe’s needs and devise a plan to meet them. The states of Arizona, Colorado and Nevada intervened in the process, trying to protect their own access to water from the Colorado River system.
As Judge Kavanaugh framed the question in the case, the tribe tried to force the federal government to take concrete steps to get water for it.
“The Navajos do not claim that the United States has impeded their access to water,” he wrote. Rather, the Navajos argue that the United States should take positive steps to secure water for the tribe — for example, assessing the tribe’s water needs, developing a plan to secure needed water, and possibly installing pipelines, pumps, wells or other water. infrastructure.”
The treaty, Judge Kavanaugh concluded, did not impose such an obligation.
“The historical record,” he wrote, “does not suggest that the United States agreed to make affirmative efforts to secure water for the Navajos—any more than the United States agreed to farm land, mine minerals, harvest timber, build roads or bridges on the reserve.”
The majority opinion was 13 pages and was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Amy Coney Barrett.
Judge Gorsuch’s dissent in the case, Arizona v. Navajo Nation, No. 21-1484, ran 27 pages and said the majority had misunderstood the history, the treaty and what the tribe was seeking.
The treaty, he wrote, promised the tribe that it could make the reservation its “permanent home.”
“As both sides would surely have acknowledged,” he wrote, “no people can make a permanent home without the ability to draw sufficient water.”
It followed, Judge Gorsuch wrote, that the federal government had assumed at least some obligations.
“The Navajo have a simple question: They want the United States to establish the water rights they have for them,” he wrote. “And if the United States has usurped the Navajo’s water rights, the tribe is asking them to formulate a plan to stop doing so in the future.”
Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson joined Justice Gorsuch’s dissenting opinion.
As Judge Kavanaugh recapitulated his majority opinion Thursday morning from Supreme Court justice, Judge Gorsuch looked forlorn. As the summary drew to a close, he bowed his head and closed his eyes.
Chris Cameron reporting contributed.
