Supreme Court rules against Navajo Nation in Colorado River water rights case
The US government had argued the tribe did not have the legal right to make the claim because the treaties at issue did not create a right for the nation to sue the government over water.
The Colorado River Basin was divided into the Upper and Lower basins in the Colorado River Compact of 1922.
Utah is part of the Upper Basin, along with Wyoming, Colorado and New Mexico.
The Lower Basin includes Arizona, Nevada and California.
For decades, lower-basin states have been making use of Colorado River water that upper-basin states aren't capturing.
Supreme Court rules against Navajo Nation in water supply case
Saul Loeb/AFP/Getty Images
CNN —
The Supreme Court on Thursday ruled against the Navajo Nation, dismissing a lawsuit arguing that the federal government has the legal duty under treaties signed in the 1800s to develop a plan to provide the tribe with an adequate water supply.
The ruling was 5-4 against the Navajos with Justice Brett Kavanaugh delivering the opinion of the court. Justice Neil Gorsuch, filed a dissenting opinion joined by the court’s liberal justices.
The suit pitted the Navajo Nation against the US government as well as a handful of western states that are concerned about water allocation.
“In short, the 1868 treaty did not impose a duty on the United States to take affirmative steps to secure water for the Tribe – including the steps requested by the Navajos here, such as determining the water needs of the Tribe, providing an accounting, or developing a plan to secure the needed water,” Kavanaugh wrote.
The suit comes as water from the Colorado River is scarce and states located in the arid southwest are tangled in disputes concerning water allocation. The tribe claims that while the average person on the Navajo reservation uses seven gallons of water a day, that national average is 80 to 100 gallons.. ."
US Supreme Court rules against Navajo Nation in water rights case
Indigenous community had sought to assess water needs amid historic drought in the Colorado River Basin.
Published On 22 Jun 202322 Jun 2023
The United States government does not have a responsibility to “take affirmative steps to secure water” for the Navajo Nation, the US Supreme Court has ruled, dealing a blow to the Indigenous community’s efforts to outline its water rights amid historic drought.
In a 5-4 decision (PDF) on Thursday morning, the top court said an 1868 treaty between the US government and the Navajo tribe that established the Navajo Reservation “reserved necessary water” for the community’s needs.
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“But the treaty did not require the United States to take affirmative steps to secure water for the Tribe,” the Supreme Court said.
Water has long been a top concern for members of the Navajo Nation, whose territory spans more than 6.8 million hectares (17 million acres) across parts of Arizona, New Mexico and Utah in the western United States.
It is estimated that approximately 30 percent of the roughly 175,000 residents who live on the reservation – the largest in the country – do not have running water in their homes.
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The issue has taken on added importance as the Colorado River watershed where the Navajo Nation is located has been forced to consider significant water cuts amid the worst drought in more than 1,000 years.
The Navajo Nation argued (PDF) that two 19th-century treaties established the Navajo reservation as a “permanent home” where the tribe could “commence farming”, in exchange for their “nomadic life” beyond the reservation’s borders.
“More than a century ago, the Court made clear in Winters that when the United States creates an Indian reservation to serve as a permanent homeland, the United States also reserves sufficient unappropriated water to fulfill the reservation’s purposes,” the tribe’s legal team asserted in court filings.
They also noted, “To read the Treaties otherwise would mean that the United States promised the Navajos a permanent home suitable for agriculture on lands that ‘were practically valueless’ … In sum, the United States’ nearly exclusive control over the Colorado River confirms that the government has a fiduciary duty to preserve and protect the Nation’s reserved water rights.”
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A federal trial court initially dismissed the lawsuit, but an appeals court allowed it to go forward.
The Navajo Nation’s lawyers had characterised the tribe’s request as modest, saying they simply were seeking an assessment of the tribe’s water needs and a plan to meet them.
But the US government argued that while it has helped the tribe secure water from the Colorado River’s tributaries and provided money for infrastructure, including pipelines, it was not explicitly bound by any law or regulation to address the tribe’s water needs. “Winters is not a general ‘duty’ imposed on the United States to ‘supply tribes with adequate water’,” it wrote in court filings.
The Biden administration also said that if the Supreme Court were to come down in favour of the Navajo Nation, the federal government could face lawsuits from many other tribes.
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