Justice Amy Coney Barrett could be the decisive vote in a US Supreme Court dispute about what steps, if any, the federal government must take to help the Navajo Nation deal with a southwest water crisis.
Eight justices at argument on Monday appeared evenly divided in the dispute over the Colorado River with conservative Neil Gorsuch and his liberal colleagues lining up together.
Sonia Sotomayor, Elena Kagan, Gorsuch, and Ketanji Brown Jackson leaned toward tribal water access claims. Chief Justice John Roberts, Clarence Thomas, Samuel Alito, and Brett Kavanaugh appeared to side with the Biden administration, which is backed by Arizona and other states.
Barrett, a conservative, didn’t have a track record in tribal cases on the Chicago-based US Court of Appeals for the Seventh Circuit where she sat before becoming a justice in 2020. She’s since ruled both for and against tribal interests, and suggested the possibility of a narrow win for the Navajo in this case.
The Navajo Nation aims to move forward with a lawsuit seeking to secure water from the Colorado River, which provides seven states with water during the region’s historic drought.
The Navajo claims the US government is on the hook to help it access water under treaties dating to the 1800s that returned the tribe to its ancestral lands and promised to provide them with a “permanent home.”
All parties agree the treaties include some water rights, though they disagree on the scope.
The federal government says it just can’t interfere with any water on the reservation lands. The Navajo says the US has the duty to ensure the tribe has sufficient water.
Individuals on the Navajo reservation use seven gallons of water a day compared to an average individual use of 88 to100 gallons nationwide, Shay Dvoretzky, the tribe’s lawyer, told the justices.
In appearing to favor the Navajo, several justices telegraphed that the promise of a permanent home included the promise to provide sufficient water.
Gorsuch—who sat on the Colorado-based Tenth Circuit and has ruled for tribal interests since joining the court in 2017—suggested he should be able to sue “someone who promised me a permanent home, the right to conduct agriculture, and raise animals if it turns out it’s the Sahara Desert.”
At the very least, that argument is enough to allow the litigation to continue, Gorsuch said in emphasizing that the issue before the justices is very narrow.
Jackson seemed to agree, saying the “Navajo could still lose later on in the litigation.”
But the federal government argues the tribe, in addition to losing on the merits, can’t bring a suit in federal court.
The dispute “doesn’t belong in the courts. It belongs in front of the political branches,” said Frederick Liu, an assistant to the US solicitor general arguing for the administration.
Only Congress and the executive branch can weigh the competing interests at issue, he said. That includes effects on states.
Kavanaugh noted that any water given to the Navajo is likely to come at the expense of existing users and could have particularly “dire consequences” for residents of Arizona.
Arizona and several other states argued that allowing the suit to go forward would “cloud” water rights from the Colorado that were already determined by the Supreme Court in the 1960s.
Barrett suggested a limited a win for the tribe, so long as the water comes from somewhere else besides the Colorado.
“Because it doesn’t seem then that it affects you very much if they’re not getting the water from the mainstream,” she told the states’ lawyer, Rita Maguire.
The case is Arizona v. Navajo Nation, U.S., No. 22-1484, argued 3/20/23.
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