Supreme Court Rules Against Navajo Nation in Water Rights Claim

WASHINGTON — The Supreme Court ruled against the Navajo Nation Thursday in a 5-4 vote, saying the Navajo Treaty of 1868 does not require the United States to take affirmative steps on the water rights of the tribe regarding the Colorado River. 

The treaty of 1868 designated the reservation, which covers an expansive area of 27,000 square miles across Arizona, Utah and New Mexico, as the tribe’s “permanent home,” a commitment that the Navajo Nation asserts encompasses an ample water supply.

“It is not the judiciary’s role to rewrite and update this 155-year-old treaty,” said Justice Brett Kavanaugh, writing for the majority. “Allocating water in the arid regions of the American West is often a zero-sum situation.”

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.” 

The Navajo Nation faces the most severe impact of the American Southwest’s decadeslong drought. From 2000 through 2022, the region faced the driest 23-year period in more than a century and one of the driest periods in the last 12,000 years. 

For over 20 years, the Navajo Nation has struggled to obtain water from the lower Colorado River, which runs parallel to the reservation’s northwestern boundary.

“The Navajos claim is not that the United States has interfered with their water access,” Kavanaugh said. “Instead, the Navajos contend that the treaty requires the United States to take affirmative steps to secure water for the Navajos.” 

In dissent, Justices Neil Gorsuch, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson contend that the Navajo did not want the federal government to take affirmative steps but rather to identify the extent of their water rights. 

“To this day, the United States 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. The Navajo have tried it all.”

According to The Navajo Water Project, 30% of families on the reservation live without running water, forcing them to travel long distances to refill barrels and jugs to obtain water for drinking, cooking, bathing and cleaning. Alternatively, some depend on unregulated wells for their water needs. 

In 2003, the tribe initiated another lawsuit against the federal government, alleging its neglect in recognizing and safeguarding the Navajo Nation’s water rights in the Colorado River’s lower section.

Kavanaugh acknowledged the severity of the issue, stating, “Much of the western United States is arid. Water has long been scarce, and the problem is getting worse. And the situation is expected to grow more severe in future years.” But he concluded that “the Navajos face the same water scarcity problem that many in the western United States face.” 

With this case concluding the three cases concerning indigenous affairs for this term, Arizona v. Navajo Nation leaves the Navajo Nation with the ability to pursue legal action against cases that interfere with their water rights rather than seeking to outline the extent of those resources specifically. 

“They must again fight for themselves to secure their homeland and all that must necessarily come with it,” Gorsuch wrote. “Perhaps here, as there, some measure of justice will prevail in the end.”

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