June 22, 2023

Many tribal homes, like this one in To’Hajiilee, NM, do not have reliable access to clean water, and instead have to truck it in from far away. A new bill aims to provide more funding for the operation and maintenance of water systems for tribal communities. Alex Hager / KUNC

Supreme Court rules against Navajo Nation in Colorado River case

KUNC | By Luke Runyon

The Supreme Court has ruled against the Navajo Nation in a case centered on the tribe’s rights to the drying Colorado River.

The tribe claimed it was the federal government’s legal duty to help figure out their future water needs, and aid them in using their rights. But in a 5-4 decision, the justices said an 1868 treaty included no such promises.

In the majority opinion comprised of the court’s conservative wing, Justice Brett Kavanaugh wrote that the agreement between the Navajo Nation and the federal government set aside water for use on the reservation that stretches more than 25,000 square miles across an arid reach of Utah, Arizona and New Mexico, but it did not create a duty for the federal government to help the tribe secure that water.

“The 1868 treaty reserved necessary water to accomplish the purpose of the Navajo Reservation,” Kavanaugh wrote. “But the treaty did not require the United States to take affirmative steps to secure water for the Tribe.”

In a dissenting opinion, Justice Neil Gorsuch wrote that the majority both misunderstands the tribe’s claims and applies an incorrect legal framework in making its decision. The tribe has tried different legal avenues to gain the assistance it needs and work to quantify its water rights, he wrote.

“Where do the Navajo go from here?” Gorsuch wrote in his opinion. “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.”

More than a third of Navajo Nation residents lack access to clean water in their homes. The tribe experienced some of the highest infection rates in the country during the COVID-19 pandemic, which spurred a new sense of urgency around public health and hygiene and to address the tribe’s gap between water supply and demand.

Some of the tribe’s water rights in the Colorado River basin have been quantified, such as in the portions of the reservation in Utah and New Mexico. But in Arizona, where the vast majority of the reservation lies, the tribe’s water is not quantified and settled, which leaves unanswered questions about how much water the tribe might end up using from the Colorado River. That uncertainty over future river management spurred the states of Colorado, Nevada and Arizona to urge the Supreme Court to decide in their favor

“Ever since this case started, what the issue is has been framed in a lot of different ways,” said Heather Tanana, a University of Utah law professor and citizen of the Navajo Nation. ”It’s that misframing and warping of what the Nation was actually asking that resulted in that, in my opinion, wrong decision.”

This new ruling will not lead to immediate on-the-ground effects in the tribe’s desire to use its water rights, Tanana said. Recently allocated funds from the Bipartisan Infrastructure and Jobs Act and the Inflation Reduction Act have begun to flow to some tribes, including the Navajo Nation, to build water supply projects. The burden will remain on tribes to plan for their future uses and to secure and use the water they are legally entitled to, she said.

“The status quo is going to continue,” Tanana said. “Being disappointed by the federal government is nothing new in Indian Country.”

This story is part of ongoing coverage of the Colorado River, produced and distributed by KUNC and supported by the Walton Family Foundation.