This story was updated on June 23.
The largest Native American reservation in the United States has lost a key legal battle to protect access to a waterway that is critical to its citizens’ spiritual practices — and their survival.
All but one member of the Supreme Court’s conservative majority ruled Thursday against the Navajo Nation in its fight to ensure that the federal government is legally obligated to address the tribe’s need for water from the dwindling flows of the Colorado River.
One Republican-appointed justice, however, broke ranks to decry the devastating effect of the court’s decision on the Navajo people, who live on just a fraction of the water used by the average American household.
The ruling leaves the Navajo Nation in a “familiar spot,” wrote Justice Neil Gorsuch in his dissent. He recalled the United States’ efforts in the late 1800s to move the Navajo to a barren New Mexico reservation before relocating them to their homeland.
“As they did at Bosque Redondo, they must again fight for themselves to secure their homeland and all that must necessarily come with it,” wrote Gorsuch, who during his six years on the high court has emerged as a champion of tribal rights.
At issue in the case — Arizona v. Navajo Nation — is an 1868 treaty under which the federal government, after confining the tribe to a reservation, promised that its people would have the land and water they needed to establish their new home.
Instead, many Navajo residents currently survive on far less water than the average American, and many households on the reservation lack any access to running water.
The Navajo Nation had argued that the 1868 treaty established a legal obligation for the federal government to address the tribe’s need for water from the Colorado River, which today serves more than 40 million people. The waterway’s flows have been decimated by increasing demand and a changing climate.
A federal appeals court sided with the Navajo, but the Supreme Court’s ruling Thursday toppled that legal victory for the tribe.
Justice Brett Kavanaugh wrote for the majority that the Navajo had not merely claimed that the United States was interfering with their access to the Colorado River but that the government must take affirmative steps — such as developing a plan to build pipelines and pumps — to secure their water
“In light of the treaty’s text and history, we conclude that the treaty does not require the United States to take those affirmative steps,” Kavanaugh wrote. “And 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.”
Navajo Nation President Buu Nygren said in a statement that he was disappointed with the court’s decision but was encouraged that the justices were divided 5-4 on the matter.
“It is reassuring that four justices understood our case and our arguments,” Nygren said. “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 Interior Department, which had argued against the Navajo Nation in court, said it is reviewing the Supreme Court’s decision and remains committed to upholding its trust and treaty obligations.
Interior’s position in the case created frustration among some legal observers who had hoped that President Joe Biden and the department’s first Native American leader — Deb Haaland, a member of the Pueblo of Laguna — would have sided with the Navajo.
The Arizona Department of Water Resources praised the decision to reserve the appellate court’s ruling.
“Arizona’s primary concern in this case has been preserving the Secretary of the Interior’s ability to manage the Lower Colorado River system pursuant to the Law of the River, through drought, climate change and historical overuse,” the agency said in a statement. “Today’s opinion allows the Secretary to do just that.”
‘Law of the River’
The “Law of the River,” is a common shorthand for the body of laws that govern the Colorado River Basin — which is shared by seven states — beginning with the Colorado River Compact of 1922.
Under a 1960s-era Supreme Court ruling, the Interior secretary became the river master for the Lower Basin states of Arizona, California and Nevada, with the power to determine when to make reductions due to shortages within the waterway and its major reservoirs.
The seven Colorado River Basin states spent the past year in arduous negotiations over how to address shortfalls in the river due to more than two decades of drought.
As the river’s “junior user” — or the first to take cuts to water allocations when flows are insufficient — Arizona pushed back against proposals to significantly curtail its share of the waterway.
Tom Buschatzke, director of the Arizona Department of Water Resources, noted that tribal water rights have a major impact on his state, which is home to the majority of tribes with a claim to the river.
"A huge challenge for me that is always in the back of my mind is I've got 22 of the 30 tribes in my state," Buschatzke said earlier this month during a conference at the University of Colorado Law School.
"We've developed some really good relationships with several of our tribes but not all of our tribes," he later added, but did not name specific tribal nations.
The decision could hold broader impacts for other tribes who share the Colorado River Basin, warned attorney Kirk McGill, with the Oklahoma law firm Hall Estill.
“The ruling today is unquestionably a major blow against the Navajo and any tribe whose water rights are held in trust by the federal government because they cannot require the federal government to honor it's treaty commitments”, McGill said in a statement to E&E News.
He added: “Once again, the federal government is permitted to break its word to an Indian tribe with virtual impunity."
Gorsuch wrote at the close of his dissent that the Supreme Court’s majority ruling may contain some silver linings for the Navajo. He wrote that it is “hard to see” any way the court could block the Nation from getting involved in future legal battles over the Colorado River or any other waterway to which they might hold a claim.
“Perhaps here, as there,” Gorsuch wrote, referring to efforts to move the Navajo to the Bosque Redondo reservation in New Mexico, “some measure of justice will prevail in the end.”
