(WASHINGTON) — The U.S. Supreme Court on Monday appeared narrowly divided over whether to allow the Navajo Nation to sue the federal government for help expanding their reservation’s access to water at a time when the precious resource has been in tight supply across the drying American West.
After oral arguments that stretched almost two hours, there appeared to be at least five justices supportive of allowing the tribe to purse a claim, but there was no clear consensus from the bench on the scope of the government’s duty to provide water the Navajo seek.
The tribe’s reservation – spanning 16 million-acres across Arizona, New Mexico and Utah – is the nation’s largest. One in three households lacks running water, the Nation says.
At issue is an 1868 treaty in which the U.S. agreed to provide the Navajo, who had been forced off native lands, with a new “permanent home.”
The tribe claims the agreement implicitly requires the government to assess the Navajo’s water needs and develop a plan to meet them for farming and living; the government disputes that it ever agreed to explicitly provide the reservation with a certain amount of water.
The vital but increasingly strained Colorado River, is at the center of the debate along with a labyrinth of agreements carefully apportioning its water to serve nearly 40 million Americans across the West.
A federal district court sided with the government, denying the Navajo Nation’s claim, saying it had failed to identify a “specific, applicable, trust-creating statute or regulation that the government violated.” A federal appeals court reversed, reasoning that the reservation could not exist without adequate water and therefore an obligation to supply it was implied.
Justices Neil Gorsuch, Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor all seemed sympathetic to the tribe’s case.
“Clearly, there is a duty to provide some water to this tribe under the treaty, right?” Gorsuch asked Biden administration Assistant to the U.S. Solicitor General Frederick Liu. “Could I bring a good breach-of-contract claim for someone who promised me a permanent home, the right to conduct agriculture and raise animals if it turns out it’s the Sahara Desert?”
“I don’t think you would be able to bring a breach of contract claim,” Liu replied. Gorsuch reacted with disbelief.
“The Navajo could still … lose later on in the litigation, right?” Jackson underscored, implying she is inclined to at least allow the suit to go forward. “The decision that we’re making right now is not on the merits of whether or not the Navajo is correct about the United States having breached its duty.”
Attorney Shay Dvoretzky, representing the tribe, insisted the government has an “affirmative duty to ensure access to water” and that it had broken that promise for generations.
“The states say we’re here to take their water behind their back. No, the Nation is here for its fair share, through a fair process,” he said.
The Biden administration’s Liu said the government remained morally committed to helping the Navajo — and has allocated billions of dollars for infrastructure improvements on reservations — but that the treaty “did not impose on the United States a duty to construct pipelines, pumps, or wells to deliver water.”
An attorney for three states in the case – Arizona, Colorado and Nevada – argued the Navajo Nation should never have been able to bring the claim in the first place, since the Supreme Court has asserted exclusive jurisdiction over disputes involving the Colorado River in a series of decisions and decrees over decades.
They also argue that allowing the tribe to claim expanded water rights over the Colorado would upset pre-existing agreements and ultimately mean less water available to those communities that have come to rely on it.
Justice Samuel Alito appeared most concerned about the potential “real-world impacts” of the case on preexisting water allocation agreements.
“Do you think that you have the right to take out from that water source whatever quantity of water is necessary to meet the standard of a livable, permanent homeland regardless of the needs of others who are drawing water from the same water source?” Alito asked.
“The Nation had water rights first. We do have priority rights to the water,” Dvoretsky responded.
Justice Clarence Thomas suggested any tribal water rights could be limited to pre-existing water, or groundwater, on the reservation — not from an alternate source hundreds of miles away. Justice Brett Kavanaugh openly wondered if this debate isn’t something that Congress should resolve.
“It shouldn’t be left to the Congress now because the Congress then [in 1868] agreed to these treaties,” Dvoretsky said.
A coalition of Western water associations and consumer groups in a friend-of-the-court filing called the case “critically important,” warning the justices about its potential to upend “stability and predictability” of the process to determine water rights.
Allowing the tribe to bring a claim, the groups say, “threatens to undermine the certainty of water rights not only in the Colorado River Basin, but also throughout other water-scarce regions of the United States more broadly.”
Justice Amy Coney Barrett, whose questions focused on the tribe’s ability to defend its water rights in court, could be a swing vote.
While Barrett’s questions signaled some potential unease with the scope of the tribe’s claim — i.e. whether the government could be on the line for billions in expensive infrastructure expenses on the reservation — they also indicated belief that the tribe should be allowed a chance to fight for water in court.
“Seems to me that the strongest arguments made on behalf of the Navajo in the Navajo’s brief are in the nature of you breached the treaty, it was broken promises, you promised us a permanent home and you’re not [providing it],” Barrett said.
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