Supreme Court news: Justices rule 5-4 against Navajo Nation in right to Colorado River water

The Supreme Court on Thursday ruled against the Navajo Nation, dismissing a suit that argued the federal government has an obligation under an 1868 treaty to create a plan to provide the tribe with a sufficient water supply.

The 5-4 ruling was authored by Justice Brett Kavanaugh, an appointee of former President Donald Trump, while the court’s three liberal justices and Trump-appointed Justice Neil Gorsuch sided against the decision.

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Boats move along Lake Powell along the Upper Colorado River Basin Wednesday, June 9, 2021, in Wahweap, Arizona. Included in the infrastructure deal that became law last month is $2.5 billion for Native American water rights settlements, which quantify individual tribes’ claims to water and identify infrastructure projects to help deliver it to residents. On the Navajo Nation, the largest reservation in the U.S., the money could fund a settlement reached in 2020 over water in the upper Colorado River basin.

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The suit pitted the Navajo Nation against the U.S. government along with Arizona, Utah, and New Mexico. It involves an array of complex agreements and court decisions that over the decades have informed how the waters of the Colorado River are allocated among the states.

The tribe sought the rights to waters in the lower Colorado River that flow along the Navajo reservation’s northwestern border. The problem is compounded by the river’s already depleted waterways due to the long-term drought in the region.

Brett Kavanaugh listens during a Senate Judiciary Committee confirmation hearing in Washington, D.C., U.S., on Sept. 7, 2018.

(Andrew Harrer/Bloomberg)

“While the 1868 treaty ‘set apart’ a reservation for the ‘use and occupation of the Navajo tribe,’ 15 Stat. 668, it contains no language imposing a duty on the United States to take affirmative steps to secure water for the Tribe,” Kavanaugh wrote.

“Here, nothing in the 1868 treaty establishes a conventional trust relationship with respect to water. And it is unsurprising that a treaty enacted in 1868 did not provide for all of the Navajos’ current water needs 155 years later,” Kavanaugh added.

The majority’s author also said the Constitution gives Congress and the executive branch a responsibility to “update federal law as they see fit in light of the competing contemporary needs for water.”

Legal counsel for the tribe argued that the 1800s treaty included a “promise of a permanent homeland” with “adequate water for agriculture and raising livestock.”

Tribal governments in the suit also said the so-called Winters doctrine, which is based on the 1908 Winters v. United States high court case, established that the creation of a Native American reservation also reserves the water necessary for its purposes.

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Associate Justice Neil Gorsuch, appointed by President Donald Trump.

(J. Scott Applewhite/AP)

Gorsuch touched on that precedent in his dissent, joined by liberal Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson.

“And the promise of a permanent home necessarily implies certain benefits for the Tribe (and certain responsibilities for the United States). One set of those benefits and responsibilities concerns water. This Court long ago recognized as much in Winters v. United States,” Gorsuch wrote.