73
votes
Supreme Court rules 5-4 against Navajo Nation, stating that United States has no "duty" to "supply tribes with adequate water"
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- Title
- US Supreme Court rules against Navajo Nation in water rights case
- Word count
- 562 words
This is yet another blow to Native American tribes by the new conservative-majority court. (You may recall 2022's McGird v Oklahoma decision giving states more control over native peoples.)
At issue in the present case is whether the 1908 "Winters doctrine" imposes a duty on the US to, basically, make sure the Navajo have sufficient access to clean drinking water. The majority ruled that the treaty did not establish "a conventional trust relationship with respect to water," and indeed "it is unsurprising that a treated enacted in 1868 did not provide for all the Navajos' current water needs 155 years later" (AZ v Navajo Nation, p2 (PDF))
This is a perverse decision. As a minor matter, the US does, of course, feel itself bound by its own centuries old constitution, trusting that to provide for things like water needs of the US people. But more importantly, it's cruel, and cruelly interpreted. People need water, and the US has control over the water flowing to the Navajos. Why decide to read the verbiage in a way that renders the treaty to mean that only at the instant of signing the treaty did the US need to provide access to water? I'm at a loss to understand this.
Further, as justice Gorsuch writes in his dissent, the Navajo people have suffered terribly at the hands of the United States. The ask to merely identify what water rights they have--the crux of the suit, in Gorsuch's opinion (see ibid p.22)--is the very least of what the US owes in recompense.
The Gorsuch dissent is a good read. I wasn't surprised at the ruling regarding providing drinking water through infrastructure projects, but I was surprised that they didn't believe there was a duty to even assess how much water is in trust for the Nation.
Gorsuch has been amazing for native rights. With every case that involves native laws and land, he's been writing some great opinions.
I may disagree with his views, but he's very consistent and I believe he was truly qualified for SCOTUS. Dude is a stickler for a contract, and that's what I've seen him boil this down to.
Gorsuch had to be qualified because he sits in a stolen seat. This was at the start of trump’s term and the GOP was still interested in making him look like a normal and reasonable president. They knew it wasn’t the right time to put the likes of Kavanaugh or Barrett on the bench, especially with the lingering controversy surrounding Garland’s nomination.
At that point Trump was still being heavily managed by "traditional" establishment Republicans. They were willing to give him the red meat on immigration and the Muslim ban if he let them run the stuff that mattered. Eventually he grew bored with them and the psychotic faction he represented managed to have them all drummed out.
Yep. He's my favorite SCOTUS Justice in a long time. I've also found it really interesting that him and Justice Jackson have been not only ruling together very often this term but also joining each others' opinions a lot.
I'm particularly interested to see if anyone can help explain the majority's reasoning in a rational way--where they didn't set themselves the goal of being cruel, and produce interpretations that did that.
Because, as I see it, they went out of their way to find a way to interpret this cruelly, when a much more obvious and humane interpretation was right in front of their faces.
So the situation is that the original treaty with Navajo people allowed them to use water as necessary from the rivers and streams of the Colorado River Basin. And that hasn't changed, they have unfettered access to that, what's changed is that the Colorado River is drying up. The court argues that both the original treaty and the Winters doctrine leave it at that - they have unfettered access to the water they were promised. Building pipes from other water sources is out of scope.
To some extent, I think this is also preempting complicated state-level disputes. Arizona, Nevada, Colorado, and California have been fighting over the Colorado river for a while, and the government has been hands off. If water is to be brought from elsewhere to the reservation, the question is, from where?
That's more unspoken. The public reasoning is basically, nothing's changed with the federal government's obligations, go fight Arizona/Nevada/Colorado/California for water.
And that makes sense. It's basically affirming the historical wrong of "go live in this unused desert space that doesn't have much water" rather than a modern wrong of "we will deny you water going forward by restricting your access to the river".
In my opinion the reservation should at least have a high (absolute?) priority over the other states for the basic (not for profit farming) uses.
Then they should have priority for the for profit farming usage once the other states also have all the water they need to drink.
But building what may be exceptionally impractical water pipelines based on a treaty seems absurd to me.
John Oliver did an episode on this recently-ish.
Each state along the Colorado River was awarded a certain amount of water per year to be distributed amongst its farmers. But the sum of water per year being divided up between the states was too much — on purpose — and completely ignored the Navajo to begin with. This has contributed significantly to the Colorado River Basin water level dropping an enormous amount.
This one?
https://youtu.be/jtxew5XUVbQ
Yes.
Extremely helpful reply, thank you.
I wonder if there's a case to be made that the US-- in granting access for the use of farming, drinking, etc.--has a duty of care to maintain the basin in a suitable condition for use. It's not like they could have poisoned it immediately after signing and claimed they were upholding the spirit of the treaty.
And if that is a legitimate case, then that would open up the US to much warranted suits for climate negligence.
Do you know if there are any limits on how much water the Navajo can take from the Colorado?
I'm not from the US so my apologies if I'm missing nuance here but this just seems to be straight up evil. Hurting people just because you can, interpreting the constitution in such a way that you twist it to suit the pain you want to inflict on others for reasons that I just cannot comprehend.
As someone from the UK who works for a non-governmental public body auditing local and central government performance I've seen first hand the decline in services and help for the poorest in our society at the hands of the Tory government so I'm assuming it's a similar thought process. Just unnecessarily cruel, and it feels like it's almost for cruelties sake (for example our conservative government tried to stop free school lunches for children during the Covid pandemic which was only shelved when a popular football player used his platform to kick up a huge stink).
Welcome to the Republican Party.
It'd be nice if it were just repubs but most rich people of all walks only care for themselves.
If it were just one side, it'd be easier to get rid of them.
When so much of America is built on what we took from the natives, and summarily denied or excused, this is sadly an inevitably American stance regarding native's rights. I live in an area where the resident tribes were rounded up and made to march west. About the only concrete thing the state did that was good for these people was to federalize some of their sacred lands and burial grounds, so that more conscientious people in times to come can reflect on what we took.
What really bothers me to no end is how romanticized the entire colonization of the Americas is by the US education system. Between the rubbish we tell everyone about Christopher Columbus (a holiday in his f-ing name) to Disney’s Pocahontas, and so, so much more.
My mom’s been really into genealogy research lately, and she found out that her dad’s uncle was registered on the Dawes Rolls, and she was really excited and talking about all this stuff she’s learned. Turns out she didn’t know Native Americans were enslaved by European colonists, nor did she know about the horrors of Native American Boarding Schools. If it’s just now, this generation, that people are starting to listen and open their eyes to atrocities of this magnitude, what other horrors have been left out of the history books? And, perhaps more importantly, how do we even start to make up for them, or for being part of a society that turned a blind eye to them for so long?
Jesus christ, yeah we stole all your water but its not like we owe you water! There is no agreement with this that isn't evil.