Supreme Court rules against Navajo Nation in dispute over water rights

The Supreme Court ruled against the Navajo Nation on Thursday, finding that the peace treaty signed in 1868 does not obligate the federal government to secure water for the tribe.

The ruling touches on the core of Indian-federal relations and on the ongoing water shortage that has left much of the Southwest arguing over access to scarce sources.

Navajo officials said the treaty, which brokered peace after several decades of war, requires the federal government to ascertain the tribe’s water needs and develop a plan to secure enough to meet those needs.

But Justice Brett M. Kavanaugh, writing for the majority in the 5-4 decision, said that misreads the 19th-century treaty, which he said created the tribe’s reservation and laid out other federal duties, such as building schools and a blacksmith shop and providing seeds and farm tools for three years. That cannot be stretched to encompass a duty to supply water in the 21st century, he said.

“Allocating water in the arid regions of the American West is often a zero-sum situation,” Justice Kavanaugh wrote. “And the zero-sum reality of water in the West underscores that courts must stay in their proper constitutional lane and interpret the law (here, the treaty) according to its text and history, leaving 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 reservation stretches across northeastern Arizona, northwestern New Mexico and southeastern Utah.

The tribe has access to water that flows through those lands, but it argued the federal government must do more to secure the tribe’s needs, particularly given the current 23-year dry spell, the worst in a century.

Arizona and other states objected, fearing the Navajo would be given priority over their own needs.

A federal court had ruled the treaty does not require the federal government to supply the water to the reservation — but the 9th U.S. Circuit Court of Appeals reversed the ruling, prompting Arizona to appeal to the justices.

Justice Neil M. Gorsuch, leading the four dissenting justices, said the U.S. does hold some water rights “in trust” on behalf of the Navajo. He said all the tribe is asking is for the federal government to assess what the reservation’s needs are and to come up with a plan to supply more if any of the tribe’s water has been “misappropriated.”

“Accordingly, the government owes the Tribe a duty to manage the water it holds for the Tribe in a legally responsible manner,” Justice Gorsuch wrote.

He delved deeply into the 1868 treaty, which came after one of the darkest periods of U.S.-tribal relations when most Navajo were forced off their traditional lands and marched east to a new reservation in New Mexico — what’s known to the tribe as “the Long Walk.”

Many Navajo died on the march, and thousands died at the new reservation, known as the Bosque Redondo, which had poor sources of water and was unable to support much agriculture.

The tribe demanded to be allowed back to its homelands as part of the final treaty in which the Navajo agreed to cease making war.

Justice Gorsuch said the 1868 treaty’s references to seeds, agricultural support and livestock mean that those who wrote the treaty had to have envisioned access to water as part of the deal. He said that was even more clear, given the Navajo’s objections to the Bosque Redondo.

He said the current fight must seem familiar to the Navajo.

“As they did at Bosque Redondo, they must again fight for themselves to secure their homeland and all that must necessarily come with it. Perhaps here, as there, some measure of justice will prevail in the end,” he wrote, joined in dissent by the court’s three Democrat-appointed justices.

Justice Clarence Thomas was part of the five-justice majority, but he wrote his own opinion questioning the nature of the “trust relationship” that other justices said exists between tribes and the federal government.

He said the Constitution is silent on the idea of such a relationship.

“In future cases, we should clarify the exact status of this amorphous and seemingly ungrounded ‘trust relationship,’” Justice Thomas wrote.

Kirk McGill, a lawyer in the Denver office of Hall Estill, an Oklahoma firm, said Thursday’s ruling was a “major blow” to tribes that believed the federal government held water rights in trust.

“Once again, the federal government is permitted to break its word to an Indian tribe with virtual impunity,” Mr. McGill said.