The Supreme Court docket ruled against the Navajo Nation on Thursday in a water rights case, rejecting the tribe’s swimsuit towards the federal authorities in a dispute over entry to the drought-depleted Colorado River system.
The vote was 5 to 4, with Justice Brett M. Kavanaugh writing for almost all. He stated the 1868 peace treaty on the coronary heart of the case didn’t require the federal authorities to take “affirmative steps” to safe water for the Navajo.
In dissent, Justice Neil M. Gorsuch, joined by the court docket’s three liberal members, stated the tribe’s request was extra modest than that, including that the federal government had violated the plain phrases of the treaty and had given the tribe an epic runaround.
“Up to now, their efforts to seek out out what water rights the US holds for them have produced an expertise acquainted to any American who has hung out on the Division of Motor Automobiles,” he wrote. “The Navajo have waited patiently for somebody, anybody, to assist them, solely to be informed (repeatedly) that they’ve been standing within the flawed line and should attempt one other.”
He added that the runaround had continued for many years: “When this routine first started in earnest, Elvis was nonetheless making his rounds on ‘The Ed Sullivan Present.’”
The Navajo Tribe is among the largest in the US, with greater than 300,000 enrolled members, Justice Kavanaugh wrote. And its reservation, a product of the treaty, is the largest within the nation, spanning greater than 17 million acres in components of Arizona, New Mexico and Utah. It’s concerning the dimension of West Virginia.
Within the arid West, Justice Kavanaugh wrote, “water has lengthy been scarce, and the issue is getting worse.”
The tribe sued the federal authorities in 2003, looking for to compel it to evaluate the tribe’s wants and devise a plan to satisfy them. The states of Arizona, Colorado and Nevada intervened within the swimsuit, looking for to guard their very own entry to water from the Colorado River system.
As Justice Kavanaugh framed the query within the case, the tribe sought to power the federal authorities to take concrete steps to acquire water for it.
“The Navajos don’t contend that the US has interfered with their entry to water,” he wrote. “Slightly, the Navajos argue that the US should take affirmative steps to safe water for the tribe — for instance, by assessing the tribe’s water wants, growing a plan to safe the wanted water and doubtlessly constructing pipelines, pumps, wells or different water infrastructure.”
The treaty, Justice Kavanaugh concluded, didn’t impose such an obligation.
“The historic document,” he wrote, “doesn’t counsel that the US agreed to undertake affirmative efforts to safe water for the Navajos — any greater than the US agreed to farm land, mine minerals, harvest timber, construct roads or assemble bridges on the reservation.”
The bulk opinion was 13 pages and was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Amy Coney Barrett.
Justice Gorsuch’s dissent within the case, Arizona v. Navajo Nation, No. 21-1484, spanned 27 pages and stated the bulk had misunderstood historical past, the treaty and what the tribe sought.
The treaty, he wrote, promised the tribe that it may make the reservation its “everlasting dwelling.”
“As each events absolutely would have acknowledged,” he wrote, “no folks could make a everlasting dwelling with out the power to attract on sufficient water.”
It adopted, Justice Gorsuch wrote, that the federal authorities had undertaken a minimum of some obligations.
“The Navajo have a easy ask: They need the US to establish the water rights it holds for them,” he wrote. “And if the US has misappropriated the Navajo’s water rights, the tribe asks it to formulate a plan to cease doing so prospectively.”
Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson joined Justice Gorsuch’s dissent.
As Justice Kavanaugh summarized his majority opinion from the Supreme Court docket bench on Thursday morning, Justice Gorsuch appeared forlorn. Because the abstract neared its conclusion, he bowed his head and closed his eyes.
Chris Cameron contributed reporting.
