US Supreme Court rules against Navajo Nation in water dispute
Thu, June 22, 2023
By John Kruzel and Andrew Chung
WASHINGTON (Reuters) - The U.S. Supreme Court on Thursday dealt a setback to the Navajo Nation, rejecting its bid to require the federal government to develop a plan to secure water access for the tribe on reservation lands in the parched American southwest.
The justices, in a 5-4 decision authored by conservative Justice Brett Kavanaugh, concluded that an 1868 peace treaty between the United States and the tribe did not require the government to take steps such as assessing the tribe's water needs and potentially building pipelines, pumps and wells.
More than 30% of households on the Navajo reservation currently lack running water, according to the tribe.
Conservative Justice Neil Gorsuch, who has supported Native Americans rights in various cases since joining the court in 2017, dissented from the decision along with the court's three liberal justices.
"The 1868 treaty reserved necessary water to accomplish the purpose of the Navajo Reservation," Kavanaugh wrote in the ruling. "But the treaty did not require the United States to take affirmative steps to secure water for the Tribe."
The treaty, reached three years after the conclusion of the U.S. Civil War, ended two decades of sporadic fighting between the United States and the Navajos and established the Navajo Reservation, which encompasses roughly 17 million acres (6.9 million hectares), largely in the Colorado River Basin.
The treaty secured the right of the Navajos to make use of the land, minerals and water on the reservation, which spans parts of Arizona, New Mexico and Utah.
Gorsuch criticized the ruling for deciding more than what was required by the case. In his dissent, Gorsuch wrote that the Navajos sought simply to identify the water rights that the U.S. government holds in trust on the tribe's behalf.
"The government owes the Tribe at least that much," Gorsuch wrote.
The ruling reversed a decision by the San Francisco-based 9th U.S. Circuit Court of Appeals that had given a green light to the Navajo Nation's lawsuit against the U.S. Interior Department and others seeking to prod the government to develop a plan to secure water for the tribe. The 9th Circuit said that the government had a "duty to protect and preserve the Nation's right to water."
"The Department of the Interior is committed to upholding its trust and treaty obligations to Tribes, as well as to ensuring that water rights for Colorado River users are fulfilled according to the law. We are reviewing the decision," a department spokesperson said in a statement following Thursday's ruling.
The decision follows another ruling this month in which the Supreme Court upheld a decades-old federal law governing Native American adoption and foster care placements, throwing out a challenge brought by the state of Texas and other plaintiffs to standards that give preferences to Native Americans and tribal members.
(Reporting by Andrew Chung in New York and John Kruzel in Washington; Editing by Will Dunham)
The United States Supreme Court building in Washington
Thu, June 22, 2023
By John Kruzel and Andrew Chung
WASHINGTON (Reuters) - The U.S. Supreme Court on Thursday dealt a setback to the Navajo Nation, rejecting its bid to require the federal government to develop a plan to secure water access for the tribe on reservation lands in the parched American southwest.
The justices, in a 5-4 decision authored by conservative Justice Brett Kavanaugh, concluded that an 1868 peace treaty between the United States and the tribe did not require the government to take steps such as assessing the tribe's water needs and potentially building pipelines, pumps and wells.
More than 30% of households on the Navajo reservation currently lack running water, according to the tribe.
Conservative Justice Neil Gorsuch, who has supported Native Americans rights in various cases since joining the court in 2017, dissented from the decision along with the court's three liberal justices.
"The 1868 treaty reserved necessary water to accomplish the purpose of the Navajo Reservation," Kavanaugh wrote in the ruling. "But the treaty did not require the United States to take affirmative steps to secure water for the Tribe."
The treaty, reached three years after the conclusion of the U.S. Civil War, ended two decades of sporadic fighting between the United States and the Navajos and established the Navajo Reservation, which encompasses roughly 17 million acres (6.9 million hectares), largely in the Colorado River Basin.
The treaty secured the right of the Navajos to make use of the land, minerals and water on the reservation, which spans parts of Arizona, New Mexico and Utah.
Gorsuch criticized the ruling for deciding more than what was required by the case. In his dissent, Gorsuch wrote that the Navajos sought simply to identify the water rights that the U.S. government holds in trust on the tribe's behalf.
"The government owes the Tribe at least that much," Gorsuch wrote.
The ruling reversed a decision by the San Francisco-based 9th U.S. Circuit Court of Appeals that had given a green light to the Navajo Nation's lawsuit against the U.S. Interior Department and others seeking to prod the government to develop a plan to secure water for the tribe. The 9th Circuit said that the government had a "duty to protect and preserve the Nation's right to water."
"The Department of the Interior is committed to upholding its trust and treaty obligations to Tribes, as well as to ensuring that water rights for Colorado River users are fulfilled according to the law. We are reviewing the decision," a department spokesperson said in a statement following Thursday's ruling.
The decision follows another ruling this month in which the Supreme Court upheld a decades-old federal law governing Native American adoption and foster care placements, throwing out a challenge brought by the state of Texas and other plaintiffs to standards that give preferences to Native Americans and tribal members.
(Reporting by Andrew Chung in New York and John Kruzel in Washington; Editing by Will Dunham)
Supreme Court rules against Navajo Nation in Colorado River water rights case
Raynelle Hoskie attaches a hose to a water pump to fill tanks in her truck outside a tribal office on the Navajo reservation in Tuba City, Ariz., on April 20, 2020. The Supreme Court has ruled against the Navajo Nation in a dispute involving water from the drought-stricken Colorado River. States that draw water from the river — Arizona, Nevada and Colorado — and water districts in California had urged the court to decide for them, and that's what the justices did in a 5-4 ruling.
(AP Photo/Carolyn Kaster, File)
JESSICA GRESKO
Thu, June 22, 2023
WASHINGTON (AP) — The Supreme Court ruled against the Navajo Nation on Thursday in a dispute involving water from the drought-stricken Colorado River.
States that draw water from the river — Arizona, Nevada and Colorado — and water districts in California that are also involved in the case had urged the court to decide for them, which the justices did in a 5-4 ruling. Colorado had argued that siding with the Navajo Nation would undermine existing agreements and disrupt the management of the river.
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.
Lawyers for the Navajo Nation had characterized 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.
The facts of the case go back to treaties that the tribe and the federal government signed in 1849 and 1868. The second treaty established the reservation as the tribe’s “permanent home” — a promise the Navajo Nation says includes a sufficient supply of water. In 2003 the tribe sued the federal government, arguing it had failed to consider or protect the Navajo Nation’s water rights to the lower portion of the Colorado River.
Writing for a majority made up of conservative justices, Justice Brett Kavanaugh explained that “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.”
But, Kavanaugh said, "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 acknowledged that water issues are difficult ones.
“Allocating water in the arid regions of the American West is often a zero-sum situation,” he wrote. It is important, he said, for courts to leave “to Congress and the President the responsibility to enact appropriations laws and to otherwise update federal law as they see fit in light of the competing contemporary needs for water.”
A federal trial court initially dismissed the lawsuit, but an appeals court allowed it to go forward. The Supreme Court's decision reverses that ruling from the appeals court.
In a dissent, Justice Neil Gorsuch wrote that he would have allowed the case to go forward and he characterized the Navajo's position as a “simple ask.”
“Where do the Navajo go from here?” he wrote. “To date, their efforts to find out what water rights the United States holds 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.”
Gorsuch said one “silver lining” of the case may be that his colleagues in the majority recognized that the tribe may still be able to “assert the interests they claim in water rights litigation, including by seeking to intervene in cases that affect their claimed interests.”
Gorsuch, a conservative and Colorado native who has emerged as a champion of Native rights since joining the court in 2017, was joined by the court's three liberals: Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
During arguments in the case in March, Justice Samuel Alito pointed out that the Navajo Nation’s original reservation was hundreds of miles away from the section of the Colorado River it now seeks water from.
Today, the Colorado River flows along what is now the northwestern border of the tribe’s reservation, which extends into New Mexico, Utah and Arizona. Two of the river’s tributaries, the San Juan River and the Little Colorado River, also pass alongside and through the reservation. Still, one-third of the some 175,000 people who live on the reservation, the largest in the country, do not have running water in their homes.
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.
In a statement, Navajo Nation President Buu Nygren called the ruling “disappointing" and said the tribe's lawyers “continue to analyze the opinion and determine what it means for this particular lawsuit.”
“My job as the President of the Navajo Nation is to represent and protect the Navajo people, our land, and our future,” Nygren said. “The only way to do that is with secure, quantified water rights to the Lower Basin of the Colorado River.”
Rita McGuire, a lawyer who represented states opposing the tribe’s claims, said the court “ruled exactly right” and that “we’re very pleased.”
____
Associated Press reporter Michael Phillis in St. Louis contributed to this report.
In a scathing dissent, Neil Gorsuch compared the Navajo Nation's plight to the experience of 'any American who has spent time at the Department of Motor Vehicles'
Sonam Sheth
LISTEN LIVE: Supreme Court hears cases over rights of Navajo Nation to water from Colorado River
Sonam Sheth
Business Insider
Thu, June 22, 2023
Neil Gorsuch.Chip Somodevilla/Getty Images
The Supreme Court ruled 5-4 that the US is not required to secure water for the Navajo Nation.
Justice Neil Gorsuch wrote a dissent comparing the plight of the Navajos to waiting at the DMV.
The Navajo "have tried it all," he wrote. "At each turn, they have received the same answer: 'Try again.'"
Supreme Court Justice Neil Gorsuch wrote an impassioned dissent comparing the Navajo Nation's fight over water rights to the experience of "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," Gorsuch wrote.
The high court ruled 5-4 in Arizona v. Navajo Nation on Thursday that under an 1868 treaty, the US is not required to secure water for the Navajo Nation.
Specifically, Justice Brett Kavanaugh, who delivered the majority opinion, argued that the Navajo Nation was asking the federal government to take "affirmative steps to secure water for the Navajos."
But Gorsuch wrote in his dissent that the majority "rejects a request the Navajo Nation never made."
Instead, he wrote, "the relief the Tribe seeks is far more modest."
The Navajo "have a simple ask: They want the United States to identify the water rights it holds for them," he wrote. "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."
Gorsuch, who was nominated by then President Donald Trump in 2017, has a long history of ruling in favor of Indigenous rights. And at 26 pages, his dissent in Arizona v. Navajo Nation was twice as long as the majority opinion.
The court's three liberal justices — Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — joined Gorsuch in his dissent. Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett joined in the majority opinion.
Gorsuch in his dissent underscored the Navajo Nation's efforts to avoid taking its case to the Supreme Court.
The US "has never denied that the Navajo may have water rights in the mainstream of the Colorado River (and perhaps elsewhere) that it holds in trust for the Tribe," Gorsuch wrote. "Instead, the government's constant refrain is that the Navajo can have all they ask for; they just need to go somewhere else and do something else first."
They "have tried it all. They have written federal officials. They have moved this Court to clarify the United States' responsibilities when representing them," he wrote. "They have sought to intervene directly in water-related litigation. And when all of those efforts were rebuffed, they brought a claim seeking to compel the United States to make good on its treaty obligations by providing an accounting of what water rights it holds on their behalf. At each turn, they have received the same answer: 'Try again.'"
NBC News highlighted the stakes of the case in March.
Crystal Tulley-Cordova, a hydrologist in the Navajo Nation's department of water resources, told NBC that the tribe needs enough water to transition from "survival mode to thriving mode."
The Navajo Nation first filed a lawsuit in 2003 arguing that the US government was required to ensure that the tribe had enough access to water on its reservation. Twenty years later, the litigation wound up before the high court.
Gorsuch in his dissent wrote that the majority "neglect[ed]" to take into account the violent history leading up to the Treaty of 1868 establishing the Navajo Reservation, the "discussions that surrounded that Treaty," and "the many steps the Navajo took to avoid this litigation."
But he highlighted that the majority opinion left open the possibility that the Navajo can seek to intervene in future cases that "affect their claimed interests" in water-rights litigation.
"After today," Gorsuch wrote, "it is hard to see how this Court (or any court) could ever again fairly deny a request" from the Navajo to intervene in such cases.
That leaves the tribe "in a familiar spot," he continued. As they did at Bosque Redondo, "they must again fight for themselves to secure their homeland and all that must necessarily come with it. Perhaps here, as there, some measure of justice will prevail in the end."
Thu, June 22, 2023
Neil Gorsuch.Chip Somodevilla/Getty Images
The Supreme Court ruled 5-4 that the US is not required to secure water for the Navajo Nation.
Justice Neil Gorsuch wrote a dissent comparing the plight of the Navajos to waiting at the DMV.
The Navajo "have tried it all," he wrote. "At each turn, they have received the same answer: 'Try again.'"
Supreme Court Justice Neil Gorsuch wrote an impassioned dissent comparing the Navajo Nation's fight over water rights to the experience of "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," Gorsuch wrote.
The high court ruled 5-4 in Arizona v. Navajo Nation on Thursday that under an 1868 treaty, the US is not required to secure water for the Navajo Nation.
Specifically, Justice Brett Kavanaugh, who delivered the majority opinion, argued that the Navajo Nation was asking the federal government to take "affirmative steps to secure water for the Navajos."
But Gorsuch wrote in his dissent that the majority "rejects a request the Navajo Nation never made."
Instead, he wrote, "the relief the Tribe seeks is far more modest."
The Navajo "have a simple ask: They want the United States to identify the water rights it holds for them," he wrote. "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."
Gorsuch, who was nominated by then President Donald Trump in 2017, has a long history of ruling in favor of Indigenous rights. And at 26 pages, his dissent in Arizona v. Navajo Nation was twice as long as the majority opinion.
The court's three liberal justices — Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — joined Gorsuch in his dissent. Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett joined in the majority opinion.
Gorsuch in his dissent underscored the Navajo Nation's efforts to avoid taking its case to the Supreme Court.
The US "has never denied that the Navajo may have water rights in the mainstream of the Colorado River (and perhaps elsewhere) that it holds in trust for the Tribe," Gorsuch wrote. "Instead, the government's constant refrain is that the Navajo can have all they ask for; they just need to go somewhere else and do something else first."
They "have tried it all. They have written federal officials. They have moved this Court to clarify the United States' responsibilities when representing them," he wrote. "They have sought to intervene directly in water-related litigation. And when all of those efforts were rebuffed, they brought a claim seeking to compel the United States to make good on its treaty obligations by providing an accounting of what water rights it holds on their behalf. At each turn, they have received the same answer: 'Try again.'"
NBC News highlighted the stakes of the case in March.
Crystal Tulley-Cordova, a hydrologist in the Navajo Nation's department of water resources, told NBC that the tribe needs enough water to transition from "survival mode to thriving mode."
The Navajo Nation first filed a lawsuit in 2003 arguing that the US government was required to ensure that the tribe had enough access to water on its reservation. Twenty years later, the litigation wound up before the high court.
Gorsuch in his dissent wrote that the majority "neglect[ed]" to take into account the violent history leading up to the Treaty of 1868 establishing the Navajo Reservation, the "discussions that surrounded that Treaty," and "the many steps the Navajo took to avoid this litigation."
But he highlighted that the majority opinion left open the possibility that the Navajo can seek to intervene in future cases that "affect their claimed interests" in water-rights litigation.
"After today," Gorsuch wrote, "it is hard to see how this Court (or any court) could ever again fairly deny a request" from the Navajo to intervene in such cases.
That leaves the tribe "in a familiar spot," he continued. As they did at Bosque Redondo, "they must again fight for themselves to secure their homeland and all that must necessarily come with it. Perhaps here, as there, some measure of justice will prevail in the end."
LISTEN LIVE: Supreme Court hears cases over rights of Navajo Nation to water from Colorado River
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