In an extraordinarily lengthy legal challenge regarding water access, the U.S. Supreme Court has ruled against the Navajo Nation and its bid to invalidate a treaty formulated 155 years ago.
In a 5 to 4 decision, the court rejected a Navajo Nation claim that the federal government has failed in its legal duty to develop a plan to provide the tribe with an adequate water supply.
An attorney for the Navajo Nation had argued that an 1868 treaty made clear that the tribe was to be provided with “adequate water for agriculture and raising livestock.”
Referencing the lack of water access on the 17 million-acre Navajo tribal lands which takes in parts of Arizona, New Mexico, and Utah, Shay Dvoretzky remarked: “Hauled from miles away, water can cost up to twenty times more than it does in neighboring off-Reservation communities.”
Added Dvoretzky: “A promise is a solemn duty, and the United States’ duty is to see that the Nation has the water it needs, and the United States promised.”
Writing for the majority, Justice Brett Kavanaugh said that the historic treaty “reserved necessary water to accomplish the purpose of the Navajo Reservation,” and that it is not the responsibility of the Supreme Court to “rewrite and update” the treaty.
“Rather, Congress and the President may enact—and have often enacted—laws to assist the citizens of the western United States, including the Navajos, with their water needs.”
Dissenting, Justice Neil Gorsuch said the Navajo Nation has “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.”
“At each turn, they have received the same answer: ‘Try again,’” Gorsuch continued.
The legal dispute, with many roadblocks, has been decades in the making. But in 2021, lawyers for the Navajo Nation won a signal victory when the 9th U.S. Circuit Court of Appeals in San Francisco agreed that the tribe could sue the federal government for a failure to carry out what was perceived as the duties of the 1868 treaty.
The Supreme Court ruling did leave open the possibility that the Navajo Nation can in the future petition Congress for legislation addressing water allocation issues.
In a statement, Crystalyne Curley, Speaker of the 25th Navajo Nation Council, said the Supreme Court ruling “will not deter the Navajo Nation from securing the water that our ancestors sacrificed and fought for—our right to life and the livelihood of future generations.”
By Garry Boulard
