Supreme Court Rules Against Navajo Nation in Colorado Water Rights Case

June 22, 2023 9:53 AM

Supreme Court Rules Against Navajo Nation in water supply case CNN The Supreme Court on Thursday ruled against the Navajo Nation, dismissing a lawsuit arguing that the federal government has the legal duty under treaties signed in the 1800s to develop a plan to provide the tribe with an adequate water supply. The ruling was 5-4 against the Navajos with Justice Brett Kavanaugh delivering the opinion of the court. Justice Neil Gorsuch, filed a dissenting opinion joined by the court’s liberal justices.

Supreme Court Rules Against Navajo Nation in Colorado River Water Rights Case (NPR - WHYY)

States that draw water from the river — Arizona, Nevada, and Colorado — and water districts in California that are also involved in the case had urged the court to decide for them, which the justices did in a 5-4 ruling. Colorado had argued that siding with the Navajo Nation would undermine existing agreements and disrupt the management of the river.

The Biden administration had said that if the court were to come down in favor of the Navajo Nation, the federal government could face lawsuits from many other tribes.

Lawyers for the Navajo Nation had characterized the tribe’s request as modest, saying they simply were seeking an assessment of the tribe’s water needs and a plan to meet them.

The facts of the case go back to treaties that the tribe and the federal government signed in 1849 and 1868. The second treaty established the reservation as the tribe’s “permanent home” — a promise the Navajo Nation says includes a sufficient supply of water. In 2003 the tribe sued the federal government, arguing it had failed to consider or protect the Navajo Nation’s water rights to the lower portion of the Colorado River.


Many Native Americans don't have access to clean water, report finds

From NPR March 2023

For more than 20 years, the Navajo Nation has fought for access to water from the lower Colorado River, which flows directly alongside the reservation's northwestern border.

The Navajo Nation reservation stretches across 27,000 square miles in Arizona, Utah and New Mexico. Almost a third of the 170,000 people who live there do not have access to clean, reliable drinking water, the tribe says.

Interview with Heather Tanana about the case

posted by AnyUsernameWillDo (19 comments total)

Thanks for this post. Unsurprising but terrible news.
posted by joannemerriam at 9:55 AM on June 22, 2023 [11 favorites]

(Because every Supreme Court post needs a Supremes song, here's 'Bad Weather.')
posted by box at 10:08 AM on June 22, 2023 [2 favorites]

Can they have the water from their traditional pre-white genocide homes then?
posted by Abehammerb Lincoln at 10:09 AM on June 22, 2023 [15 favorites]

If you want to materially assist the Navajo Nation get households running water, the Navajo Water Project will take your donations and work on providing families with basic infrastructural needs.
posted by foxfirefey at 10:21 AM on June 22, 2023 [26 favorites]

Kavanaugh, hiding behind his vacuous textualism , manages to also echo Anatole France: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

Who can have a homeland if it hasn’t any water?
posted by notyou at 10:50 AM on June 22, 2023 [13 favorites]

Thank you for that. I would also vet the organization first and perhaps do mutual aid with Navajo folks on the ground.

This organization is based in L.A. The Water project... linked a few comments above

The NPR article I posted links to their report, but I would seek out people in the area to be sure. My link wasn't meant to fund an organization but hopefully look into Native communities where we can build relationships and start looking at how can we be in mutual support.
posted by AnyUsernameWillDo at 10:51 AM on June 22, 2023

I will try to find some Native orgs/folks we can donate to and bring that back here. Or other info on how they would like us to support the cause.

Just my own opinion; I know some people prefer donating to organizations.
posted by AnyUsernameWillDo at 10:55 AM on June 22, 2023 [1 favorite]

I totally respect people wanting to go the mutual aid route! I want to assure people that the organization I linked to is Indigenous led and has very high charity audit scores. I know a lot of charities spun up by outsiders don't meet the needs of the populations they serve because those populations don't get to have input, but nothing I've heard about the Navajo Water Project has given me that impression.

more descriptions on how it operates, another description:

To date, DigDeep has installed more than 600 home water systems. Their technicians, who are predominately Navajo, are also working on innovative solutions like larger solar panels that might provide some additional electricity in the homes, which are often in remote locations.

A typical installation – digging the hole, sinking the cistern, piping and putting solar panels on the roof -- might take four hours. However, some of the homes are hard to reach and might take as much as three days with driving back and forth. The rough terrain can also be an issue with hidden boulders necessitating a change in location for the tank, which DigDeep refills monthly.

Gaining trust and credibility within the Navajo Nation has been an evolving process. The organization works with tribal chapters, which Merenda likens to county governments, to identify families in need. Once that’s done, priorities include large families, the elderly and people with health issues.

“Then we approach the family to see if they want this. And what we realized early on was that when we first started working on the Navajo Nation, a lot of the residents were really, they didn't know if we were really going to make good on this offer, if we were really going to help,” Merenda say.

posted by foxfirefey at 11:19 AM on June 22, 2023 [11 favorites]

Thanks foxfirefey! I appreciate that so much. I was looking at it some more, and it looks legit. 🙏🏼🙏🏼🙏🏼
posted by AnyUsernameWillDo at 11:23 AM on June 22, 2023 [1 favorite]

More comprehensive information with views from the Navajo Nation.

They can now pressure congress and the Biden administration
posted by AnyUsernameWillDo at 12:36 PM on June 22, 2023 [6 favorites]

"What if all the other people we ripped off want justice too?" is never a good reason to deny one group justice, Joe. Sheesh.
posted by emjaybee at 1:22 PM on June 22, 2023 [33 favorites]

The treaties said that the Native Americans would have their rights forever, specifically phrased as "as long as the grass is green and the waters run," so I guess the government figures that if it stops the water and the grass dries up, that gets it out of its obligations.
posted by Harvey Kilobit at 1:48 PM on June 22, 2023 [14 favorites]

I wonder if the conservatives on the court have decided to take turns switching to the minority dissenting opinion to make it look less rigged. After all, they only need five votes to get their way.
posted by qxntpqbbbqxl at 5:47 PM on June 22, 2023 [4 favorites]

I wonder if the conservatives on the court have decided to take turns switching to the minority dissenting opinion to make it look less rigged. After all, they only need five votes to get their way.

Gorsuch has a history of ruling favorably to Native concerns. May come from having grown up in Colorado.
posted by Etrigan at 5:51 PM on June 22, 2023 [12 favorites]

Gorsuch has consistently advocated passionately for Native rights, whether he’s in the minority or majority.
posted by smelendez at 5:52 PM on June 22, 2023 [12 favorites]

That Gorsuch has ruled for Native rights is the main reason I don’t totally hate him.
posted by Katjusa Roquette at 7:15 PM on June 22, 2023 [7 favorites]

The Navaho nation clearly missed the memo - you can buy yourself a Justice. There's probably a snappy jingle to made out of this. "Case didn't go your way? Bummer. Shoulda Boughta Justice! Before you make that mistake again, call our hotline and let one of our Justice-adjacent facilitators get you in touch with the ear you need to bend!"
posted by From Bklyn at 11:21 PM on June 22, 2023 [2 favorites]

Yeah, I find Gorsuch’s commitment to indigenous rights fascinating but he is 1000% sincere about it. Unfortunately a lot of justices are really committed to status quo here.
posted by corb at 9:03 AM on June 23, 2023 [1 favorite]

Gorsuch normally: it’s completely within an employer’s rights to castrate any employee
Gorsuch on reservation law: I am issuing this ruling from Piscataway land,
posted by vibratory manner of working at 4:24 PM on June 24, 2023 [1 favorite]