Supreme Court Rules Against Navajo Nation in Water Rights Case

“The Navajos do not contend that the United States has interfered with their access to water,” he wrote. “Rather, the Navajos argue that the United States must take affirmative steps to secure water for the tribe — for example, by assessing the tribe’s water needs, developing a plan to secure the needed water and potentially building pipelines, pumps, wells or other water infrastructure.”

The treaty, Justice Kavanaugh concluded, did not impose such an obligation.

“The historical record,” he wrote, “does not suggest that the United States agreed to undertake affirmative efforts to secure water for the Navajos — any more than the United States agreed to farm land, mine minerals, harvest timber, build roads or construct bridges on the reservation.”

The majority opinion was 13 pages and was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Amy Coney Barrett.

Justice Gorsuch’s dissent in the case, Arizona v. Navajo Nation, No. 21-1484, spanned 27 pages and said the majority had misunderstood history, the treaty and what the tribe sought.

The treaty, he wrote, promised the tribe that it could make the reservation its “permanent home.”

“As both parties surely would have recognized,” he wrote, “no people can make a permanent home without the ability to draw on adequate water.”

It followed, Justice Gorsuch wrote, that the federal government had undertaken at least some obligations.

“The Navajo have a simple ask: They want the United States to identify the water rights it holds for them,” he wrote. “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.”