The Dallas Morning News
Justices seem split on water case
Tribe says U.S. must protect its access to drought-stricken river
WASHINGTON — The Supreme Court seemed split Monday as it weighed a dispute involving the federal government and the Navajo Nation’s quest for water from the drought-stricken Colorado River.
States that draw water from the river — Arizona, Nevada and Colorado — and water districts in California that are also involved in the case urged the justices to rule against the tribe. Colorado says siding with the Navajo Nation will undermine existing agreements and disrupt the management of the river.
But, arguing on behalf of the Navajo Nation, attorney Shay Dvoretzky told the justices that the tribe’s current water request is modest. The “relief that we are seeking here is an assessment of the nation’s needs and a plan to meet them,” he said.
Arguing on behalf of the Biden administration, attorney Frederick Liu said that if the court were to side with the Navajo Nation, the federal government could face lawsuits from many other tribes.
Four of the court’s justices, including its three liberals, seemed sympathetic to the tribe’s case. But other conservatives including Justice Samuel Alito were skeptical during nearly two hours of arguments at the high court.
Alito asked about “some of the real world impacts” of the decision and suggested he’d seen figures indicating that “per capita water on the Navajo Nation is greatly in excess of per capita water for residents of Arizona.”
Justice Brett Kavanaugh pointed to a brief that said more water for the tribe would necessarily mean less water for Arizona, striking “at the heart of the social and economic livelihood” of the state “with dire consequences.”
The facts of the case go back to two treaties the tribe and the federal government signed in 1849 and 1868. The second established the reservation as the tribe’s “permanent home” — a promise the Navajo Nation says includes a sufficient supply of water.
“Is it possible to have a permanent home, farm and raise animals without water?” Justice Neil Gorsuch asked during arguments, suggesting sympathy for the tribe’s case.
Justice Sonia Sotomayor said the government was making the argument that the Navajo Nation can’t do anything to force the government to protect its water rights, something she suggested would have been an “odd agreement” for the tribe to make.
The Colorado River flows along what is now the northwestern border of the tribe’s reservation, which extends into New Mexico, Utah and Arizona. Two of the river’s tributaries, the San Juan River and the Little Colorado River, also pass alongside and through the reservation. Still, a third of the some 175,000 people who live on the reservation, the largest in the country, don’t have running water in their homes.