Supreme Court makes Navajo Nation’s fight for more water harder

Already facing some of the most severe water scarcity in the drought-stricken Southwest, the tribe now has to deal with a Supreme Court ruling this week that will make securing water even harder for the 170,000 enrolled tribal members who live on its reservation.

Two decades after the Navajo Nation sued the federal government to force them to act, their frustrating, meandering journey through the federal courts ended with the 5-4 decision authored by Justice Brett Kavanaugh, saying an 1868 treaty “contains no language imposing a duty on the United States to take affirmative steps to secure water for the Tribe.”

As a result of the ruling, if the Navajo Nation wants access to water from the lower Colorado River, Congress must act or the tribe needs to ask the Supreme Court to reopen a prior case that allocated water between states, said attorney Rita McGuire, who represented southwestern states that opposed the tribe.Gorsuch found one “silver lining,” writing that the majority did agree that the Navajo Nation may be able to assert such a claim.

Kavanaugh said Congress could still help the Navajo Nation. Congress has allocated billions to help tribes secure water rights and build infrastructure to reliably deliver clean water to their people. And supplying water across the Navajo reservation is particularly challenging because of its arid environment and the great distances involved - it’s the largest in the U.S. at 27,000 square-miles - an area larger than West Virginia.

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