The Supreme Court appeared narrowly divided Monday on the Navajo Nation's bid to maintain its lawsuit seeking additional water for an Arizona-based reservation.
Attorneys for the tribe argued to the 6-3 Republican-appointed majority on the court that the federal government is obligated to provide access to water resources, citing an 1868 treaty that provided land for the tribe to return to a permanent home on their ancestral territory. The case comes after an intense drought in the tribe's Western U.S. territory and a lack of access to reliable and clean drinking water in their homes.
SUPREME COURT HEARS NAVAJO NATION CASE FOR ACCESS TO COLORADO RIVER WATER
But U.S. attorneys argued Monday that the treaty did not include requirements to create a specific water infrastructure.
“Just as the 1868 treaty didn't impose on the United States a duty to build roads or bridges or to harvest timber or to mine coal, the 1868 treaty didn't impose on the United States a duty to construct pipelines, pumps, or wells to deliver water,” Frederick Liu, assistant to the solicitor general, told the justices.
By the end of the arguments in Arizona v. Navajo Nation, a majority on the Supreme Court seemed to indicate a potential for the tribe to move forward on its claim with some guardrails, depending on the final decisions by Republican-appointed Justices Amy Coney Barrett and Neil Gorsuch.
Three Democratic-appointed justices, along with Gorsuch, who often sympathizes with Native Americans on disputes with the federal government, appeared to be the most swayed by the tribe's arguments. The rest of the conservative body seemed skeptical, except Barrett.
Gorsuch compared the 1868 treaty to a simple contract in a hypothetical example, positing a scenario wherein someone promised a permanent homeland that included agricultural uses in what turned out to be the Sahara. “You don’t think that’s a breach of good faith and fair dealing?” Gorsuch said.
Liu countered that he didn't think it would constitute a "state of claim."
Barrett shared some concerns that the tribe's lawsuit could be utilized to bring forth additional burdens on the federal government, such as requirements to work on new pipelines. An attorney for the tribe later clarified that the claims were much narrower.
"So it's really just about intervening in litigation to assert rights on the Navajo's behalf and to protect them, right, like to safeguard those rights so you're not deprived of them?" she asked, to which the tribe's attorney, Shay Dvoretzky, said, "I think that's right."
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The Navajo Nation initially sued the federal government in 2003 for access to the main branch of the lower Colorado River, and litigation has persisted since then. A separate lawsuit exists in Arizona state court for the tribe's bid to access the Little Colorado River, a tributary of the Colorado River.
If the tribe were to win the dispute, it wouldn't directly result in more water for the nearly 175,000 people who live on the reservation, which is one of the largest in the nation. Rather, the tribe wants the Department of the Interior to account for the tribe’s needs in Arizona and determine a plan to satisfy those needs.