June 23, 2023
The Supreme Court of the United States (SCOTUS) has ruled 5-4 against the Navajo Nation, supporting the U.S. argument that the treaty at issue does not require the federal government to take the affirmative steps that the Navajo Nation contends.
“The 1868 treaty reserved necessary water to accomplish the purpose of the Navajo Reservation,” Judge Brent Kavanaugh wrote for the majority. “But the treaty did not require the United States to take affirmative steps to secure water for the Tribe. We reverse the judgment of the U. S. Court of Appeals for the Ninth Circuit.”
The SCOTUS decision, which was released Thursday morning, can be downloaded HERE. The first three pages provide the bottom line.
The Alliance was part of a Western water user amicus brief filed in support of the federal government in this case.
In its decision, the Court specifically recognized the concerns raised in the Western Water Users amicus brief and cited that brief.
“Allocating water in the arid regions of the American West is often a zero-sum situation,” the Court found. “And the zero-sum reality of water in the West underscores that courts must stay in, 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 Court also embraced the Alliance’s and water users’ argument that water right claims should be made in water right adjudications.
“. . .[T]he Navajos may be able to assert the interests they claim in water rights litigation, including by seeking to intervene in cases that affect their claimed interests, and courts will then assess the Navajos’ claims and motions as appropriate”, the Court found.
The Family Farm Alliance was pleased by the Court’s judgment, which eliminates another possible layer of uncertainty regarding Western water decision-making.
“From a practical standpoint, this decision should eliminate the possibility of a new method being established for tribes to pursue water outside of the established process of filing and pursuing claims in basin-wide adjudications, involving all affected water users and States,” said Alliance General Counsel Norm Semanko (IDAHO). “It also demonstrates the importance that amicus briefs can play in these kinds of cases.”