WASHINGTON — The U.S. Supreme Court on Monday appeared narrowly divided over whether to allow the Navajo Nation to sue the federal government for help expanding their reservation's access to water at a time when the precious resource has been in tight supply across the drying American West.
After oral arguments that stretched almost two hours, there appeared to be at least five justices supportive of allowing the tribe to purse a claim, but there was no clear consensus from the bench on the scope of the government's duty to provide water the Navajo seek.
The vital but increasingly strained Colorado River, is at the center of the debate along with a labyrinth of agreements carefully apportioning its water to serve nearly 40 million Americans across the West. "I don't think you would be able to bring a breach of contract claim," Liu replied. Gorsuch reacted with disbelief.
The Biden administration's Liu said the government remained morally committed to helping the Navajo -- and has allocated billions of dollars for infrastructure improvements on reservations -- but that the treaty"did not impose on the United States a duty to construct pipelines, pumps, or wells to deliver water."
"Do you think that you have the right to take out from that water source whatever quantity of water is necessary to meet the standard of a livable, permanent homeland regardless of the needs of others who are drawing water from the same water source?" Alito asked.Justice Clarence Thomas suggested any tribal water rights could be limited to pre-existing water, or groundwater, on the reservation -- not from an alternate source hundreds of miles away.
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