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WASHINGTON — The Supreme Court appeared bitterly divided on Monday over whether to allow the Navajo to pursue claims that the federal government has an obligation to address Native American tribes’ water rights.
During nearly two hours of oral argument, a nine-person court majority seemed to rely heavily on the vote of conservative Justice Amy Coney Barrett to somehow advance the tribe’s case. It looked like
The lawsuit touches on a complex series of agreements and court rulings that have determined for decades how the upper and lower Colorado River waters are divided between states. . Further complicating matters is that the Colorado River system has already been depleted by prolonged drought and the long-term threat of climate change is looming in the future.
The tribe is seeking claims to the waters of the Lower Colorado River, which runs along the northwest border of the Navajo Reservation, citing years of abuse. The tribe’s land is the largest Native American reservation, mostly in Arizona, but also straddling New Mexico and Utah.
The court, with a 6-to-3 conservative majority, heard two consolidated appeals. One is the federal government, the other is Arizona, Nevada, Colorado, and even some water districts in California.
The controversy revolves around whether the government had legal obligations that the tribes could enforce in court. The tribe, which signed a key treaty with the federal government in 1868, argued that under the agreement with the federal government guaranteeing access to land, the government was also supposed to be obligated to provide the necessary water. There is
Three liberal justices and conservative Neil Gorsuch appeared to sympathize with the tribe’s claims. Barrett asked tough questions of both sides, but other conservatives were more skeptical.
Gorsuch, a frequent Native American voter, focused on the language of the 1868 treaty that guaranteed a permanent home to the tribe.
“Is it possible to have a permanent home and raise animals without water?” he asked.
Liberal Attorney General Elena Kagan questioned the government’s claim that while the treaty guarantees some access to water, there is no way for tribes to substantiate those rights.
“If the treaty promises water, where do you get the idea that it is unenforceable?” she asked Frederick Liu, a government lawyer.
The federal government says the tribes are trying to reopen an already-decided case that determines how the river’s water will be allocated, but Barrett seems to have agreed with the tribes that the lawsuit doesn’t necessarily call for it. is.
But she also seemed concerned that the lawsuit could be used to impose additional burdens on the federal government, such as the requirement to build pipelines.
With the exception of Gorsuch and Barrett, conservative judges were fairly skeptical of the Navajo case.
If water was key to the treaty, “why wasn’t water mentioned?” Chief Justice John Roberts asked.
Judge Samuel Alito raised the “real-world implications” of the tribe’s claims, questioning their potential adverse effects on water allotted to surrounding states.
The Biden administration and three states will appeal after the San Francisco-based Ninth Circuit Court of Appeals ruled in favor of the Navajo in 2021, suing the government for failing to perform its duties on behalf of the tribes. said it can. .
The tribe claims it is not seeking a decision specifically regarding rights in the lower Colorado River. says it means a full assessment of the Navajo water rights, which may affect water conditions from the Colorado River, needs to be done. assigned.
A Colorado attorney said in a state brief that the ruling against the tribes would “provide immediate and long-term disruption to the coordinated management of the Colorado River.”
The state notes that it has already implemented the 2007 agreement on water shortages and the drought contingency plan adopted in 2019.
The Navajo can get water from other sources, such as the San Juan River, a tributary of the Colorado River, but that alone isn’t enough, the tribes say. Many tribe members do not have access to running water and rely on wells or other local water sources.
The tribe originally sued the federal government in 2003 for access to the lower Colorado River main stream, and lawsuits have continued since. In a separate lawsuit in state court, the tribe has fought for access to another tributary of the Colorado River, the Little Colorado River.
A previous attempt to settle the Navajo claim to the lower Colorado River failed about a decade ago.
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