Supreme Court rejects Navajo Nation push on water rights

A divided Supreme Court ruled against the Navajo Nation on Thursday, finding that an 1868 treaty does not require the U.S. to take affirmative steps to secure water for the tribe on a reservation.

The 5-4 decision, written by Justice Brett M. Kavanaugh, concluded that the treaty “reserved necessary water to accomplish the purpose of the Navajo Reservation,” and that 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,” Kavanaugh wrote in the majority opinion.

In court filings, the tribe contended that an 1868 treaty promised both land and water sufficient for the Navajos to return to a permanent home in their ancestral territory. That wades into the contentious history of divvying up the dwindling flow of the Colorado River among the states in the river’s basin.

Many Navajo households live on a small fraction of the water most Americans use per day, according to the tribe. More than 30 percent of the reservation lacks running water. And water hauled from miles away costs multiple times more.