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The Supreme Court issued a 5-4 ruling today against the Navajo Nation in its attempts to secure water rights to the Colorado River.

The case Navajo Nation v. Arizona rested on the merits of a 150-year-old promise from the federal government to fulfill the water needs of Native American reservations. 

The high court ruled that the 1868 treaty in question — in which the Navajo Nation reservation was established and the U.S. government guaranteed the Tribe's agriculture needs, including water rights — did not require the federal government to take "affirmative steps" to secure water for the Tribe. 

Writing for the majority, Justice Brett Kavanaugh opined, “It is not the Judiciary’s role to rewrite and update this 155-year-old treaty.”

Justice Neil Gorsuch joined the court’s liberal justices in dissent.

Navajo Nation President Buu Nygreen released a statement expressing disappointment in the ruling but underscoring the tribe's determination to continue forward.

“Today's ruling is disappointing and I am encouraged that the ruling was 5-4," Nygren said in the statement."It is reassuring that four justices understood our case and our arguments. 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. 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.”

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At 27,000 square miles, Navajo Nation is the largest reservation in the country, enveloping parts of Arizona, New Mexico and Utah in the Colorado River Basin. Approximately 170,000 of the Tribe's 350,000 members live on the reservation. Some 30% of homes in the Navajo Nation are currently without running water. It is common for families to drive to water access points once or twice a week to fill plastic barrels of water for cooking, cleaning, and drinking. 

The Navajo Nation brought the suit against the state of Arizona after their water rights came into question as the Tribe's primary water source — the 1,450-mile-long Colorado River — has dwindled by 20% over the past two decades amid relentless drought conditions in the region. Water from the river is allocated to seven states, with 40 million Americans relying on it for their water supply. The suit alleged a "breach of trust" and sought to compel the federal government to secure water for Navajo Nation by assessing the Tribe's water needs, developing a plan to secure the needed water, and potentially building pipelines, pumps, wells, or other water infrastructure.

In oral arguments in March, the Tribe asserted their water rights under the  Winters doctrine, a 1908 SCOTUS opinion considered to be the foundation of tribal water rights, in which it was determined that when Congress reserves land for Native Americans, it also must "reserve water sufficient enough to fulfill the purpose of the reservation."

However, the court determined that the Tribe's arguments were "incorrect." 

"In the Tribe's view, the 1868 treaty imposed a duty on the United States to take affirmative steps to secure water for the Navajo. With respect, the Tribe is incorrect," Justice Brett Kavanaugh wrote for the majority.

The court's conservatives joined the majority opinion, with the exception of Neil Gorsuch, who has a track record of defending tribal rights and authored the dissenting opinion. Gorsuch was joined in his opinion by the liberal justices. 

Gorsuch wrote that the court's decision "rejects a request the Navajo Nation never made," adding that "the relief the Tribe seeks is far more modest." 

Gorsuch underscored the court's consensus that the Navajo Nation received enforceable water rights by treaty and that the United States holds those water rights on the Tribe's behalf. The request, therefore, is a simple one, "They want the United States to identify the water rights it holds for them."

"Where does the Navajo Nation go from here?" Gorsuch wrote. "To date, their efforts to find out what water rights the United States hold for them have produced an experience familiar to any American who has spent time at the Department of Motor Vehicles. The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another."

Perhaps here, as there, some measure of justice will prevail in the end."

This article has been updated to include a statement from Navajo Nation President Buu Nygren.

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About The Author
Author: Elyse WildEmail: This email address is being protected from spambots. You need JavaScript enabled to view it.
Elyse Wild is senior editor for Native News Online and Tribal Business News.