In a 5-4 decision, the U.S. Supreme Court ruled against the Navajo Nation in a long-running dispute over water rights to the Colorado River. Arizona v. Navajo Nation has been the latest chapter in the long-running judicial drama over water rights for the once-mightier Colorado, and Arizona, other western states and the federal government are arguing against the Navajo Nation's 20-year fight for rights.
Justice Brett Kavanaugh wrote the majority opinion and Justice Neil Gorsuch wrote the dissent. His dissent was joined by the three liberal justices.
The decision reverses the 9th Circuit's decision that the U.S. had a duty to try to get water rights from the Colorado River for the Navajo Nation, based on the 1868 treaty that established the reservation in Arizona, New Mexico and Utah. (The treaty followed nearly 20 years of war between the parties.)
The five-justice majority found that the treaties did not establish a responsibility for the U.S. to take affirmative steps to secure the water rights, and notes that the Navajo Nation has water rights from the Little Colorado and San Juan and infrastructure funded by the federal government.
In light of the treaty’s text and history, we conclude that the treaty does not require the United States to take those affirmative steps. And it is not the Judiciary’s role torewrite and update this 155-year-old treaty. Rather, Congress and the President may enact—and often haveenacted—laws to assist the citizens of the western United States, including the Navajos, with their water needs.
Justice Clarence Thomas went further in his one-man concurrence, opining that he finds it "troubling" that his colleagues frequently write about the trust relationship between the U.S. and the sovereign Native American nations. Thomas is concerned that that too often results in finding a fiduciary-type relationship.
Gorsuch writes that the majority botched the case by not understanding what the Navajo Nation is even asking for in this long-running legal battle. It's a great opening paragraph:
Today, the Court rejects a request the Navajo Nation never made. This case is not about compelling the federal government to take “affirmative steps to secure water for the Navajos.” Ante, at 2. Respectfully, the relief the Tribe seeks is far more modest. Everyone agrees the Navajo received enforceable water rights by treaty. Everyone agrees the United States holds some of those water rights in trust on the Tribe’s behalf. And everyone agrees the extent of those rights has never been assessed. Adding those pieces together, the Navajo have a simple ask: They want the United States to identify the water rights it holds for them. And if the United States has misappropriated the Navajo’s water rights, the Tribe asks it to formulate a plan to stop doing so prospectively. Because there is nothing remarkable about any of this, I would affirm the Ninth Circuit’s judgment and allow the Navajo’s case to proceed.
Gorsuch has a point. As we wrote previously, the Navajo Nation's argument is that when water rights were being adjudicated for the Colorado River, the U.S. did not include the Navajo Nation, deciding that the largest Native American sovereign nation had its rights to the Little Colorado River water.
The Navajo Nation began (formally) disputing this in 2003, and sued the federal government for breaching its fiduciary duty, and Arizona (and other states intervened). The case has bounced around, but was dismissed by Arizona District Court Judge G. Murray Snow in 2019. The 9th Circuit reversed and allowed the Navajo Nation to attempt to force the U.S. to come up with a plan to meet their water needs.
(This is a developing story. Here is the article we published in March with more on the parties' briefs and arguments. Please check back later for more on today's decision.)
"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet.
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