In a recent major decision, the Supreme Court ruled against the Navajo Nation’s claim for water rights in the lower portion of the Colorado River. The Navajo Nation relied on a treaty from 1868 that granted them a reservation for their “permanent home.” The tribe argued that this also included the right to sufficient water. However, the Court’s majority opinion, written by conservative Justice Brett Kavanaugh, rejected this claim.
In a 5-4 decision, Justice Brett M. Kavanaugh said an 1868 peace treaty between the United States and the Navajos does not require the federal government to take any “affirmative steps” to secure water rights on behalf of the tribe from the Colorado River. https://t.co/fdJfoz0QiQ
— The Washington Post (@washingtonpost) June 22, 2023
The government’s lawyers argued that it was not obligated to assess the tribe’s needs when allocating water rights, even though the Navajo Nation’s lawsuit accused the federal government of failing to live up to its treaty obligations. The Court’s five conservative justices sided with the government in this situation, stating that the treaty didn’t require “affirmative steps” from the United States to secure water for the Navajos.
Meanwhile, Justice Neil Gorsuch was the sole Republican appointee to side with the three Democratic appointees in writing the dissent. He empathized with the Navajo Nation’s situation, comparing their experiences to those of waiting at the DMV, stating that they’ve been “standing in the wrong line and must try another.” While Gorsuch recognized that the Navajo Nation can still assert their interests in water rights litigation, it’s clear that the tribe has been let down by the United States.
It’s unfortunate that the Navajo Nation’s water rights claim was rejected, especially considering that about one-third of the tribe’s members don’t have running water in their homes. However, it’s not the government’s job to provide handouts and resources to every community with a claim or need. Conservatives understand that allocation of resources, such as water in the arid regions of the West, is a zero-sum situation with differing priorities and needs. Instead of forcing the government to make more commitments to the Navajo Nation, the Court’s decision respects the need to leave the responsibility of updating the law to Congress and the President.