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By Kaitlin Lewis
Night Reporter
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The Supreme Court decision to side with the U.S. government in a dispute over water allocation of the Colorado River is "disappointing" for Navajo Nation President Buu Nygren, but also serves as an encouraging sign as the Native American community continues to fight for its water rights.
Justices ruled in a 5-4 decision on Thursday that a lawsuit filed by the Navajo members against the federal government must be thrown out, with the majority arguing that a treaty signed in 1868 did not require Washington, D.C., to take active steps to ensure the Navaho community's water access. The Navajo Nation had requested that the federal government do a full assessment of Navaho water rights as part of U.S. duties laid out in the 155-year-old treaty.
"Today's ruling is disappointing and I am encouraged that the ruling was 5-4," Nygren wrote in a statement to Twitter. "It is reassuring that four justices understood our case and our arguments. I remain undeterred. As President of the Navajo Nation, I represent and protect the Navajo people, our land, and our future."
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Justice Brett Kavanaugh, who wrote the court's opinion, argued that it was "not the judiciary's role to rewrite and update" the treaty in question, which established the Navajo Reservation.
"Here, while the 1868 treaty 'set apart' a reservation for the 'use and occupation of the Navajo tribe' ... it contains no language imposing a duty on the United States to take affirmative steps to secure water for the Tribe," Kavanaugh wrote. "Notably, the 1868 treaty did impose a number of specific duties on the United States, but the treaty said nothing about any affirmative duty for the United States to secure water."
However, dissenting justices claimed that the Navajo Nation's requests were "far more modest" than trying to compel the government to take affirmative steps. Justice Neil Gorsuch, a conservative, joined the high court's three liberal judges on Thursday, writing in the dissenting opinion that "the Navajo have a simple ask: They want the United States to identify the water rights it holds for them."
"Where do the Navajo go from here?" Gorsuch wrote. "To date, their efforts
to find out what water rights the United States holds for them have produced an experience familiar to any American who has spent time at the Department of Motor Vehicles. 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."
Newsweek emailed Nygren Thursday night for additional comment.
Thursday's decision follows years of litigation between the Navajo people and the federal government. The Navaho originally sued in 2003 for access to the main branch of the lower Colorado River, which borders the northwest corner of the Navajo Reservation.
In 2021, the 9th U.S. Circuit Court of Appeals ruled that the Navajo Nation could sue the government over failing to carry out its duties. The Supreme Court's decision considered separate appeals filed by both the federal government and the states of Arizona, Colorado and Nevada, alongside several water districts in California that draw from the river.
Water levels of the Colorado River have reached critical levels as Southwest states grapple with an ongoing mega-drought, threatening water access for over 40 million people who rely on the over-tapped river. In April, the U.S. Interior Department's Bureau of Reclamation proposed a plan to prevent the complete collapse of the river.
The Navajo Nation—which spans Colorado, Nevada, Arizona and Utah—has been no stranger to the exceptionally severe drought, as roughly one-third of its residents live without running water in their homes, according to a report from the Associated Press.
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