Supreme Court rules against Navajo Nation’s access to drought-stricken Colorado River, despite US treaty

The Supreme Court ruled on Thursday against the Navajo Nation in a dispute concerning the tribe’s access to the drought-stricken Colorado River.

Critics says the decision harms a community where an estimated one-third of tribal members lack running water and furthers the history of the US government breaking its promises to tribes.

The case, Arizona v Navajo Nation, centres on the obligations of an 1868 treaty, which established the Navajo reservation as the tribe’s permanent home, following their forced removal from their ancestral lands by the United States military.

The tribe argued that under the treaty, the US government has an obligation to evaluate the tribe’s need for water and factor that analysis into how it divides up water access to the Colorado River, which serves over 40 million people and passes through seven states.

The US government, as well as the states of Arizona, Nevada, and Colorado, and various water districts in California, argued against the tribe in consolidated appeals.

They claimed that the tribe’s interpretation of the treaty would undermine existing agreements on sharing the water from the Colorado and create and impose unsubstantiated obligations on the US government to develop water infrastructure for the tribe.

In a 5-to-4 decision, all but one of the high court’s conservatives ruled against the tribe.

“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,” Justice Brett Kavanaugh wrote in the majority opinion. “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.”

The court’s three liberal justices, as well as the Trump-appointed Neil Gorsuch, an advocate for tribal rights, dissented.

“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,” he wrote in his dissenting opinion.

He argued, alongside the tribe, that the Navajo weren’t forcing the US government to immediately start building water infrastructure or changing water claims on the river, but rather begin the process of fully accounting for what the nation needed.

Navajo representatives criticised the ruling.

"My job as the president of the Navajo Nation is to represent and protect the Navajo people, our land, and our future,” Navajo Nation president Buu Nygren said in a statement after the ruling. “The only way to do that is with secure, quantified water rights to the Lower Basin of the Colorado River.”

With a population of about 175,000 and a land mass larger than West Virginia, the Navajo Nation is the largest US tribal reservation, and the Colorado River and its tributaries flow alongside and through the tribe’s territory.

“The US government excluded Navajo tribal citizens from receiving a share of water when the original apportioning occurred and today’s Supreme Court decision for Arizona v. Navajo Nation condoned this lack of accountability,” John Echohawk, executive director of the Native American Rights Fund, one of the many Indigenous groups that filed briefs in support of the Navajo Nation, said in a statement. “Despite today’s ruling, Tribal Nations will continue to assert their water rights and NARF remains committed to that fight.”

In 2003, the Navajos sued the federal government regarding access to the Colorado River, while the tribe has also fought for access to a tributary, the Little Colorado River, in state court.

As The Independent has reported, many on the Navajo nation struggle for basic water access.

“If you run out [of water] in the evening, you have to get up earlier the next day to make sure that there’s water for the kids to wash hands, brush their teeth, make breakfast,” Tina Becenti told The Independent. “It was time-consuming and took a lot of energy.”

Tribes were cut out of initial deals made to allocate the water on the Colorado River, leaving many to rely on thousands of unregulated wells, springs, and livestock troughs that are spread across the reservation, which can pose a serious health risk.

According to the Environmental Protection Agency, these sources may contain bacterial or fecal contaminants, along with unsafe levels of uranium and arsenic – a legacy of mining on Navajo land which began with the US military’s Manhattan Project for nuclear weapons in 1944 and continued until 2005.

The fate of the Colorado River has become increasingly contentious, as the vital waterway dwindles under heavy demand and a changing climate.

In May, following years of tense negotiations, Arizona, California, and Nevada agreed to cut their use of water from the Colorado in exchange for $1.2bn in federal funding, a last-minute compromise that staved off catastrophic impacts to agriculture, electricity generation, and water supplies to major cities like Phoenix and Los Angeles.

The high court decision follows a ruling this month on another topic with a long and complicated history involving tribal groups: adoption.

Last week, a 7-2 majority ruled to preserve the Indian Child Welfare Act, defending the law’s preference for the foster care and adoption of Native children by their relatives and Tribes, which was implemented following investigations that revealed more than one-third of Native children were being removed from their homes and placed with non-Native families and institutions, cutting off important family and cultural ties.

Louise Boyle and Alex Woodward contributed reporting to this story.