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Supreme Court rules against the Navajo Nation in water dispute

MARY LOUISE KELLY, HOST:

From the Supreme Court today, a big decision on tribal water rights along the Colorado River. The court ruled against the Navajo Nation in a case that centered on the tribe's desire to secure more water for its people. Many tribal members live without clean water access at home. Reporter Luke Runyon with member station KUNC is here to explain. Hey, Luke.

LUKE RUNYON, BYLINE: Hi there.

KELLY: Lay out for me what exactly this case was about.

RUNYON: This case was really about the relationship between the federal government and the Navajo Nation and about an 1868 treaty which established the tribe's reservation. It's an incredibly arid expanse of Arizona, New Mexico and Utah. The Supreme Court ruled more than a century ago that when reservations were established, they included enough water for people to actually live on them. And in this case, the Navajo were asking the federal government for an assessment of specifically how much water that is. The government's lawyers countered that the treaty didn't require that.

KELLY: And it sounds like the justices agreed with that argument.

RUNYON: Yeah. A 5 to 4 majority agreed with the government's argument. Justice Brett Kavanaugh wrote the opinion, and he was joined by most of the court's conservative wing. And he said the treaty didn't make any promises about assisting the tribe in any way. But in his dissent, Justice Neil Gorsuch said the other justices were missing the point and misunderstanding the tribe's desires, that their asks were a lot more modest than the court was making them out to be.

KELLY: Well - and I will say, asking the federal government to assess how much water the Navajo Nation needs - that doesn't sound like a huge or a controversial ask.

RUNYON: On its surface, it's not. But what some say the Navajo were really asking for in that assessment is more specificity on how much water they actually have a right to. The treaty just gives the Navajo a vague right to enough water to conduct agriculture and for other uses. But how much is enough has never really been specified. And an assessment could give that specificity.

KELLY: And why is that important?

RUNYON: Well, a right to a specific quantified amount of water would likely mean it would come from the nearby Colorado River. That river is already overpromised. There's not enough water to meet demand. And so if the Navajo were to get a legal right to a precise amount, it would probably have to come from someone else.

KELLY: OK. So for people who watch this closely, what are you hearing?

RUNYON: Well, going into this decision, there was some optimism that they'd side with the Navajo Nation because just last week, the court decided to uphold the Indian Child Welfare Act, which was a big win for tribes. But the court in this case went with the more narrow interpretation of what the tribal-federal relationship looks like when it comes to water. I talked with Heather Tanana, a University of Utah law professor and citizen of the Navajo Nation, and she says this decision keeps the burden on tribes to chart their own futures without much help.

HEATHER TANANA: The status quo is going to continue. Being disappointed by the federal government is nothing new in Indian country.

KELLY: And does this ruling have implications for other tribes beyond the Colorado River Basin?

RUNYON: It's hard to say. Right now the states that share the river are negotiating how to do that into our climate-changed future. And they've been talking a lot about how tribes must be included in those negotiations. They've been almost completely left out up until now. And today's ruling, as Heather Tanana said, basically maintains the status quo. There's no new legal lever for tribes to ask for assistance in getting access to Colorado River water.

KELLY: Luke Runyon is host of the podcast Thirst Gap about the Colorado River. He is at member station KUNC in Colorado. Thanks, Luke.

RUNYON: Thank you. Transcript provided by NPR, Copyright NPR.

As KUNC’s reporter covering the Colorado River Basin, I dig into stories that show how water issues can both unite and divide communities throughout the Western U.S. I produce feature stories for KUNC and a network of public media stations in Colorado, Utah, Wyoming, New Mexico, Arizona, California and Nevada.
Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.