The US Supreme Court ruled Thursday that an 1868 peace treaty between the US government and the Navajo Tribe does not require the government to secure water access for the tribe. In a 5-4 ruling in Arizona v. Navajo Nation, the court found that, while the treaty assures the tribe’s access to water from various sources, it does not require the government to take affirmative steps for the tribe to obtain water during times of scarcity.
The case revolves around language within the Navajo Treaty of 1868. At issue in Thursday’s case is whether or not certain treaty provisions require the US government to secure water access for the tribe.
In writing the 5-4 majority opinion, Justice Brett Kavanaugh rested on a strict reading of the treaty. The court found that while there is express language regarding water rights via groundwater, rivers, streams, lakes and springs, there was no language regarding the government’s duty to secure water for the tribe. Ultimately, the court held that the 1868 treaty “contained no ‘rights-creating or duty-imposing’ language that imposed a duty on the United States to take affirmative steps to secure water for the Tribe.”
In his dissent, Justice Neil Gorsuch rejected the majority’s understanding of the case. He argued that what the Navajo Tribe requested was not for the court to compel the government to take affirmative steps to assure water access. Rather the court was asked to “identify the water rights [the government] holds for them,” and then identify and correct if it has misappropriated them. Echoing the Navajo’s frustration with the process, Gorsuch said, “[T]he government’s constant refrain is that the Navajo can have all they ask for; they just need to go somewhere else and do something else first.”
The ruling reverses a US Court of Appeals for the Ninth Circuit ruling, which held that the district court was wrong to dismiss the Navajo Tribe’s case on the grounds of lack of jurisdiction.
In their original filing before a federal district court in Arizona, the Navajo Tribe argued that the US government is obligated to assure their water access along the Colorado River. The Navajo Tribe argued that the government’s failure to clearly define their water rights resulted in a breach of trust—referencing the Navajo Treaty of 1868. In support of the tribe, 37 other tribal governments, the National Congress of American Indians (NCAI), the Affiliated Tribes of Northwest Indians and the San Luis Rey Indian Water Authority filed an amicus brief.
A joint statement from the NCAI and the Native Americans Rights Fund (NARF) reads:
Water is necessary for all life, and when our ancestors negotiated agreements with the United States to secure our lands and our protection, water was understood and still is understood to be inseparable from the land and from our peoples[.] Today, the Supreme Court has once again assisted in the United States’ centuries-long attempts to try to get out of the promises they have made to Tribal Nations by stating that treaties only secure access to water, but do not require the United States to take any steps to protect or provide that water to our people.
The court’s Thursday ruling comes amid growing concerns over global warming and water access across the Southwest US.
