Supreme Court rules against Navajo Nation in water rights dispute
S E E D E D C O N T E N T
The Supreme Court on Thursday ruled against the Navajo Nation over claims that the federal government has failed to assert the tribe's desperate need for water access in the arid West.
The justices, divided 5-4, said a lawsuit the tribe filed against the federal government must be thrown out.
Writing for the majority, Justice Brett Kavanaugh said that an 1868 treaty with the Navajo Nation did not require the U.S. government to take active steps to secure water access.
"And it is not the judiciary's role to rewrite and update this 155-year-old treaty," he added.
Conservative Justice Neil Gorsuch joined the three liberal justices in dissent.
The tribe was merely asking the federal government to identify its water rights and was not seeking dramatic further steps, Gorsuch wrote.
As tribal members have had to do throughout their difficult history, "they must fight again for themselves to secure their homeland and all that must necessarily come with it," he wrote.
Buu Nygren, president of Navajo Nation, said in a statement that although the ruling was disappointing, he was encouraged that four justices sided with the tribe. He pledged to continue efforts to obtain water rights to the lower basin of the Colorado River 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," Nygren said.
The lack of water and infrastructure to pipe it across the vast reaches of the more than 17 million-acre reservation — larger than the state of West Virginia — which straddles parts of Arizona, New Mexico and Utah, remains one of the biggest challenges facing Navajo leaders.
The tribe says the federal government has fa iled to keep promises and left tribe members to suffer even as the Colorado River runs directly along the reservation's border and provides water for surrounding states.
For Andrew Curley, a Navajo member whose research as a professor at the University of Arizona focuses in part on the relationship between Native American tribes and the federal government on resources like water, the ruling was expected.
"It’s not surprising that the Supreme Court, a colonial court, would side with a colonial government," he said. "The power is stacked against tribes in this scenario."
The case touches upon the complex array of agreements and court decisions that over the decades have dictated how the waters of the Colorado River, divided into upper and lower sections, are allocated among the states. Further complicating matters, the Colorado River system is already depleted due to long-term drought conditions, with the longer-term threat of climate change also looming.
The tribe wants rights to waters in the lower Colorado River that flows along the Navajo reservation’s northwestern border.
The court, which has a 6-3 conservative majority, heard two consolidated appeals — one brought by the federal government and another by the states of Arizona, Nevada and Colorado , in addition to several California water districts.
The dispute is over whether the government had a legal duty that the tribe can enforce in court. The tribe, which signed the key treaty with the federal government in 1868, argued that under its agreements with the federal government that assured it would have access to land, it was assumed that the government also had a duty to ensure it had necessary water.
The tribe argued that it is not seeking a decision on rights to the lower Colorado River specifically. Instead, its lawyers said that the federal government’s oversight of the entire Colorado River, as well as its duties to the tribe, meant that it was required to do a full assessment of the Navajo Nation’s water rights, which may affect how water from the Colorado River is allocated.
Now, one option for Navajo Nation would be to seek to reopen long-running litigation over the allocation of Colorado River water that the Supreme Court itself oversaw as part of its role adjudicating disputes between states. The tribe filed a motion to intervene in that case decades ago and was denied.
In Thursday's ruling, the court left open the possibility of the tribe intervening in water rights cases, a point that Gorsuch seized upon in his dissenting opinion.
“After today, it is hard to see how this court (or any court) could ever again fairly deny a request from the Navajo to intervene in litigation over the Colorado River or other water sources to which they might have a claim,” he wrote.
The surrounding states pointed out they are already implementing a 2007 agreement on water shortages as well as a drought contingency plan adopted in 2019.
Rita Maguire, a lawyer who represented the nearby states at the Supreme Court, said the ruling "makes it clear that the federal government can have no trust duty to a tribe without clear direction by treaty or Congress." Because the Navajo treaty did not require it, the federal government has no duty to secure water.
The Department of the Interior said in a statement that the federal government is "committed to upholding its trust and treaty obligation to tribes, as well as to ensuring that water rights for Colorado River users are fulfilled according to the law."
The Navajo Nation can access water from other sources, including the San Juan River, a tributary of the Colorado River, but the tribe says that is not enough. Many tribal members do not have access to running water and rely on wells and other localized water sources.
The tribe can also seek funding from Congress for specific projects.
Navajo Nation originally sued the federal government in 2003 seeking access to the main branch of the lower Colorado River, with the litigation dragging on ever since. In separate litigation in state court, the tribe has fought for access to the Little Colorado River, another tributary of the Colorado River.
A previous attempt to settle Navajo claims to the lower Colorado River failed about a decade ago.
The Biden administration and the three states appealed the Supreme Court after the San Francisco-based 9th U.S. Circuit Court of Appeals ruled in favor of the tribe in 2021, saying it could sue the government for an alleged failure to carry out its duties on behalf of the tribe.
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Kavenaugh - you really need to read up on some of the prior SCOTUS cases. Example - the "Winter's Doctrine" of 1908 which states EXPLICITLY u nder the Winters doctrine, when Congress reserves land (i.e., for an Indian reservation), Congress also reserves water sufficient to fulfill the purpose of the reservation. In particular, federal reserved water rights often arise in questions of water allocation related to federal lands, including Indian reservations. Indian reserved water rights were first recognized by the U.S. Supreme Court in Winters v. United States in 1908.
In announcing its decision, the Court explained that the lands provided under the agreement for the purpose of developing an agrarian society "were arid and, without irrigation, were practically valueless." 5 The Court also noted that ambiguities in the agreement, such as the status of the water rights related to the land, are to be "resolved from the standpoint of the Indians," as a rule of interpretation. 6 The Court held that:
The power of the Government to reserve the waters and exempt them from appropriation under the state laws is not denied, and could not be. That the Government did reserve them we have decided, and for a use which would be necessarily continued through the years. 7
The Court has continued to recognize the principle derived from Winters in both Indian and non-Indian contexts. I n 1976, the Court noted that it "has long held that when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation." 8
Under the primary purpose standard, reserved water rights may be applied only for the primary purposes of reservations, not for secondary purposes. 13 In Cappaert, the Supreme Court held that water rights are limited to the "amount of water necessary to fulfill the purpose of the reservation, no more." 14 In United States v. New Mexico, the Supreme Court further clarified that the test is whether "the purposes of the reservation would be entirely defeated" without that water. 15
Where did you get your frigg'n law degree from - San Francisco?
Precedence Dude - precedence.
Conservative Justice Neil Gorsuch joined the three liberal justices in dissent.
He has been fairly consistent on this stuff, hasn't he?
Gorsuch is well versed in Fed Indian Law. Think Kavanaugh needs to take Indian Law 101 - and I mean that seriously.
The tribes are trying to force the Feds & States to include them in the upcoming water rights negotiations. It's short sited and discriminatory to not do so.
The treaty is the treaty. Besides giving the Navajo title to land and all the resources contained therein, including water, for an area about the size of a small state, the Navajo and US agreed the US would build schools, a chapel, and other buildings; provide teachers for at least 10 years; supply seeds and agricultural implements for up to three years; and provide funding for the purchase of sheep. The respective duties are clear.
there was no agreement the us would build additional infrastructure in perpetuity for the reservation. The courts role isn’t to rewrite treaties or
giving the Navajo title to land and all the resources contained therein, including water
If the ground and surface water upstream of said land is at risk of being syphoned off, then it would be discriminatory to not include them in the negotiations. Not doing so would be the modern day equivalent of giving them a smallpox blanket disguised as a treaty.
Winters vs U.S. 1908 states, even if only implied, water rights for the tribes are inclusive. If you don't have water, you can't have life, food, roads, agriculture, etc.
" Where water is necessary to fulfill the very purposes for which a federal reservation was created, it is reasonable to conclude … that the United States intended to reserve the necessary water.
Under Winters, the reserved water rights are tied to the purpose (and in some cases, purposes) of the reservation, as embodied in the particular law, treaty, agreement, or executive order that created the reservation. It is unclear, however, whether the primary purpose standard the Supreme Court adopted when applying Winters in non-Indian reserved water rights cases governs Indian reserved water rights. Under the primary purpose standard, reserved water rights may be applied only for the primary purposes of reservations, not for secondary purposes. 13 In Cappaert, t he Supreme Court held that water rights are limited to the "amount of water necessary to fulfill the purpose of the reservation, no more. " 14 In United States v. New Mexico, the Supreme Court further clarified that the test is whether "the purposes of the reservation would be entirely defeated" without that water. 15
Yup, Gorsuch is the expert on Indian Law, treaties, etc but of course, it's difficult for the conservative judges to see his expertise.
Generally, the treaties don't mean much to the US since they have violated most if not all of them.
What SCOTUS gave with one hand in Haaland v. Brackeen they took away with the other hand.
At any rate, the Navajo Nation and other tribes, as the first users of these resources, should have senior water rights.
Got to love the corporate SCOTUS. [Deleted]
Never assume anything with the US government. It doesn't matter what the year or the circumstances- politicians will screw over anyone. If it isn't stated clearly in writing on the treaty then it isn't going to get enforced. These are the same asses that thought germ warfare was wonderful that made the treaty.