By Lauren Irwin and Lillie Boudreaux
WASHINGTON – A divided Supreme Court ruled Thursday that the federal government is not required to take “affirmative steps” to guarantee water for the Navajo Nation beyond the water rights that were granted in an 1868 treaty.
The 5-4 ruling said that if the court agreed with the Navajo, it could lead to a situation where the government is forced to build “pipelines, pumps, wells or other water infrastructure” that were not specified in the treaty.
“It is not the Judiciary’s role to rewrite and update this 155-year-old treaty,” Justice Brett Kavanaugh wrote for the majority. “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.”
Justice Neil Gorsuch disagreed. In a dissenting opinion, he said that the tribe is looking for nothing more than sorting out water rights after decades of trying unsuccessfully to get an answer – efforts he said would be “familiar to any American who has spent time at the Department of Motor Vehicles.”
“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,” Gorsuch wrote in his dissent, which was joined by Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson.
Justin Ahasteen, executive director of the Navajo Nation’s Washington Office, said Gorsuch hit the nail on the head.
“We weren’t asking for the affirmative steps,” Ahasteen said. “We were asking for the decision to be remanded back down to the court so that we could actually litigate the matter.”
But Rita Maguire, the lead attorney for the Arizona Department of Water Resources, said “I am thrilled, the state of Arizona is thrilled” by the decision.
“It’s a clear decisive ruling out of the court that there can be no breach of trust to an Indian tribe without expressed language in a treaty or by statute,” she said.
Maguire thinks “the Navajo need to focus on the water supplies that they have.” Kavanaugh noted that the 17 million acre Navajo reservation is bordered by the Colorado, Little Colorado and San Juan rivers and that the tribe has access to “water from rivers, tributaries, springs, lakes and aquifers.”
“So they’re not without water,” Maguire said.
Kavanaugh acknowledged that even though the tribe has the right to water from various sources on the reservation, the ongoing drought means the Navajos “face the same water scarcity problem that many in the United States face.” He also noted that the government has “secured hundreds of thousands of acre-feet of water and authorized billions of dollars for water infrastructure on the Navajo Reservation.”
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