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water rights
'Shameful': Right-Wing Supreme Court Rules Against Navajo in Colorado River Case
Navajo Nation President Buu Nygren called the decision "disappointing" but also expressed confidence that "we will be able to achieve a settlement promptly and ensure the health and safety of my people."
Jun 22, 2023
The U.S. Supreme Court on Thursday ruled against the Navajo Nation "over claims that the federal government has failed to assert its desperate need for water access," as the Lakota People's Law Project put it.
While calling the decision "disappointing," Navajo Nation President Buu Nygren said in a statement that "I am encouraged that the ruling was 5-4. It is reassuring that four justices understood our case and our arguments."
Justice Brett Kavanaugh authored the majority opinion for Arizona v. Navajo Nation, backed by all but one of the other right-wing members. That Justice Neil Gorsuch penned a dissent—joined by the three liberals—did not shock court watchers, given his positions in previous cases involving Native American rights, including a "huge win for tribes" earlier this month.
Established by an 1868 treaty, Diné Bikéyah or Navajoland stretches across more than 17 million acres of Arizona, New Mexico, and Utah and is home to roughly 170,000 people, thousands of whom lack access to running water in their homes. The shrinking and overused Colorado River runs along the northwestern border of the tribe's reservation.
"My job as the president of the Navajo Nation is to represent and protect the Navajo people, our land, and our future," Nygren said Thursday. "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 30 tribes and tens of millions of people who have come to rely on the Colorado River."
Thursday's decision came two decades after the Navajo Nation sued the federal government regarding water rights to the lower portion of the Colorado River. The new ruling relates to two consolidated appeals: one brought by the Biden administration and another filed by multiple California water districts along with the states of Arizona, Colorado, and Nevada.
Those two challenges stem from a 2021 decision in the tribe's favor from the San Francisco-based U.S. Court of Appeals for the 9th Circuit, which reversed a 2019 ruling from U.S. District Court Judge Murray Snow in Arizona.
The high court heard arguments for the case in March. Kavanaugh wrote for the majority that "the question in this suit concerns 'reserved water rights'—a shorthand for the water rights implicitly reserved to accomplish the purpose of the reservation."
"The Navajos' claim is not that the United States has interfered with their water access," he continued. "Instead, the Navajos contend that the treaty requires the United States to take affirmative steps to secure water for the Navajos—for example, 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—either to facilitate better access to water on the reservation or to transport off-reservation water onto the reservation."
"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 added. "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."
Meanwhile, Gorsuch contended that the court's majority "rejects a request the Navajo Nation never made. This case is not about compelling the federal government to take 'affirmative steps to secure water for the Navajos.'"
"Respectfully, the relief the tribe seeks is far more modest," he asserted. "Everyone agrees the Navajo received enforceable water rights by treaty. Everyone agrees the United States holds some of those water rights in trust on the tribe's behalf. And everyone agrees the extent of those rights has never been assessed."
"Adding that pieces together, the Navajo have a simple ask: They want the United States to identify the water rights it holds for them. And if the United States has misappropriated the Navajo's water rights, the tribe asks it to formulate a plan to stop doing so prospectively," he wrote. "Because there is nothing remarkable about any of this, I would affirm the 9th Circuit's judgment and allow the Navajo's case to proceed."
As The Associated Pressreported Thursday:
The Biden administration had said that if the court were to come down in favor of the Navajo Nation, the federal government could face lawsuits from many other tribes.
[...]
The government argued that it has helped the tribe secure water from the Colorado River's tributaries and provided money for infrastructure, including pipelines, pumping plants, and water treatment facilities. But it said no law or treaty required the government to assess and address the tribe's general water needs. The states involved in the case argued that the Navajo Nation was attempting to make an end run around a Supreme Court decree that divvied up water in the Colorado River's Lower Basin.
Reporting from the reservation in March, just before the high court heard arguments in the case, NBC News' Lawrence Hurley joined Marilyn Help-Hood on a four-mile drive to her local well. The schoolteacher in her 60s "has no running water at her small one-story home," the journalist explained, "and needs to regularly replenish her supplies for drinking, cooking, washing dishes and feeding her small collection of sheep, horses, and dogs."
"As Help-Hood and others see it, the tribe has been relegated to secondary status in the fight over water rights in the Southwest, where states have long fought for their own pieces of the pie through complex negotiations and litigation," according to Hurley. "The scramble for water is only becoming more intense, with a decadeslong drought leading to depleted supplies in the major reservoirs in the Colorado River Basin, with the growing threat of climate change looming in the future."
Along with stressing the importance of appreciating the scarcity of water—a value Help-Hood said she passed on to her grown children—the mother of five put the U.S. government's position in the case into the broader context of centuries of mistreatment.
"We were here first, but we are still put on the back burner," she said. "In reality, we are not really being treated fairly."
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