Supreme Court rules against Navajo Nation

WASHINGTON, DC—In Arizona v Navajo Nation, the Navajo tribe sought, according to the dissenting opinion of Justice Neil Gorsuch, for the government to develop a plan for how to address water rights. The Court held for Arizona over the tribe, in a 5-4 vote. Justice Brett Kavanugh delivered the majority opinion. Gorsuch accuses the majority pf misreading the Navajo intent, and Kavanaugh does nothing to counter that in the majority opinion, asserting the tribe was arguing the 1868 treaty did “impose a duty on the United States to take affirmative steps to secure water for the Tribe…”

It is hard to believe that five justices could so misread the tribal intent, but by so doing they created a solid pretext for ruling against the Navajo. Just last week, Kavanaugh voted for tribes in the ICWA case, but this vote opposed the Navajo, and he was at the forefront of the opposition, which is why he delivered the majority opinion.

Once again, another Trump nominee, Neil Gorsuch, continued to bat a .1000 for the tribes, writing the dissenting opinion.

Gorsuch does not just address the current particulars and consequences of a ruling, he layers his opinion with deeply researched historical record, and then he solidifies that knowledge into a logical and reasoned determination. Sometimes it proves to be the difference in outcome, but this time it could not stave off defeat for the tribe. Roberts, Thomas, Alito and Barrett joined Kavanaugh to form the majority. Thomas and Alito did so, not surprisingly, as they always side against any tribal case that comes before them.

Kavanaugh said, “Allocating water in the arid regions of the American West is often a zero-sum situation. And the zero-sum reality of water in the West underscores that courts must stay in their proper constitutional lane and interpret the law (here, the treaty) according to its text and history, leaving to Congress and the President the responsibility to enact appropriations laws and to otherwise update federal law as they see fit in light of the competing contemporary needs for water.”

The ball is now squarely in President Biden’s court. Does he have the power to help the Navajo out with their water issue? He has already indicated they will not.

Back in 2021 the 9^th Court of Appeals in San Francisco ruled in favor of the tribe, but the Biden Administration joined three states in asserting with this ruling tribes could sue the government for failure to carry out their duties on behalf of the tribe.

Tribes were taken aback by the Biden Administration’s opposition. And Derrick Beetso, a Navajo and board member of Indian Country Today said, “The tribe itself is pretty much in the same position they were in before this litigation and in some respects has to go back to the drawing board to figure out how they can get the administration to move forward on assessing their water needs.”

Beetso added that the Navajo must turn their focus to the White House and Capitol Hill, if such focus can produce any results, given the seeming duplicity between Biden and the Red states of the Southwest.

“The administration can do all the things that the tribe’s asking them to do without a court telling them to do it,” Beetso concluded. “And so, I think the Navajo Nation can shift gears and put a lot of pressure on the Biden administration and see what can get done…

Gorsuch had the most eloquent words on the ruling: “The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another. To this day, the United States has never denied that the Navajo may have water rights in the mainstream of the Colorado River (and perhaps elsewhere) that it holds in trust for the Tribe. Instead, the 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.”

“My job as the president of the Navajo Nation is to represent and protect the Navajo people, our land, and our future,” Buu Nygren said. “The only way to do that is with secure, quantified water rights to the Lower Basin of the Colorado River,”

There are actually 12 water rights. States in the east follow Riparian Doctrine, which dictates that the landowner has rights to the water that touches property borders. Out west, states give permit holders the right to divert a specified amount of water for an approved, beneficial use. There is also the Winters Doctrine, established by Winters v United States in 1908. This doctrine established that when reservations were created, water rights were reserved in sufficient quantity to meet the purposes for which a reservation was established.

The Navajo do not have quantified water rights on the Colorado River, and at a time when the demand for that water is at an all time high. Quantified water rights mean the first person(s) to appropriate a quantity of water from a water source, can continue that beneficial use at a level that is appropriate to accomplish the beneficial use.

Many Supreme Court decisions establish rationale or court dynamics only peripherally related to the case specifics. In the future, can tribes establish a solid connection with justices like Roberts, Barrett and Cavanaugh, whose vote can swing either way? It is hard to believe that the fix wasn’t in on this ruling, when it overturned the 9^th Appeals Court Ruling, and the Biden Administration sought to derail it, so all the blame can hardly be placed on the five justices who overturned the appeals court. Democrats assured tribes on the campaign trail that they would see to their vital interest, but if not for the votes of conservative justices Gorsuch, Kavanaugh, Roberts and Barrett, tribes would have been handed a disheartening string of Supreme Court defeats over the past six years. The traditional perception that Democrats are the friends of tribes and Republicans are not has been critically challenged since 2017.

(Contact James Giago Davies at skindiesel@msn.com)  

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