In a 5-4 decision, Justice Brett M. Kavanaugh said an 1868 peace treaty between the United States and the Navajos does not require the federal government to take any “affirmative steps” to secure water rights on behalf of the tribe from the Colorado River.
“[I]t is not the Judiciary’s role to rewrite and update this 155-year-old treaty,” Kavanaugh wrote. “Rather, Congress and the President may enact — and often have enacted — laws to assist the citizens of the western United States, including the Navajos, with their water needs.”Justice Neal M. Gorsuch, a former federal judge from Colorado who has emerged during his time on the high court as its most outspoken advocate for Indian tribes.
The Navajo lawsuit sought to make the federal government “determine the water required to meet the needs” of the reservation and “devise a plan to meet those needs,” Kavanaugh wrote. The government resisted, and Arizona, Nevada, Colorado and some water districts in California intervened to protect their shares of water.
Kavanaugh said the treaty was very explicit about some things the United States must supply the Navajo — schools, a chapel, a blacksmith shop, plants and seeds, and livestock — “but the treaty said nothing about any affirmative duty for the United States to secure water.”
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