CNN
—
The Supreme Court ruled against the Navajo Nation on Thursday, dismissing a lawsuit arguing that the federal government has a legal duty under 19th-century treaties to develop a plan to provide the tribe with an adequate water supply.
The ruling went against the Navajos with Judge Brett Kavanaugh delivering the court’s opinion. Justice Neil Gorsuch filed a dissenting opinion joined by the court’s liberal justices.
The lawsuit 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 on the United States an obligation to take affirmative steps to secure water for the tribe, including the steps requested by the Navajo here, such as determining the water needs of the tribe, provide an accounting, or develop a plan to secure the necessary water,” Kavanaugh wrote.
The suit comes as Colorado River water is scarce and states in the arid Southwest are embroiled in disputes over water allocation. The tribe says that while the average person on the Navajo reservation uses seven gallons of water a day, the national average is 80 to 100 gallons.
The nation, which spans Arizona, New Mexico and Utah and lies within the Colorado River drainage basin, has signed two treaties with the United States. In 1868, the United States promised the tribe a permanent homeland.
Shay Dvoretzky, an attorney for the Navajo Nation, told the Supreme Court: The Navajo “made clear” that they understood the “promise of a permanent homeland” in the 1800s to include “water suitable for agriculture and cattle breeding”. “Brought from miles away, water can cost up to twenty times more than in neighboring communities outside the reserve,” he argued.
He said the tribe is seeking its “fair share” of water through a “fair process.”
“A promise is a solemn duty, and America’s duty is to see that the Nation has the water it needs, and America promised,” he said.
The US government had argued that the tribe had no legal right to make the claim because the treaties in question did not create the nation’s right to sue the government for the water.
Frederick Liu, an assistant attorney general, told the justices at oral arguments in March that the dispute is about “whether the United States owes the Navajo Nation a judicially enforceable affirmative duty to assess the tribe’s water needs, develop a plan to satisfy them”. and then carry out this plan by building a water supply infrastructure in the reserve.”
“The answer to that question is no,” Liu said.
This story has been updated with additional details.
