Justice Neil Gorsuch’s writings on Indian law have received plenty of attention in recent years. The court’s only Westerner has set himself apart from his colleagues on the left and the right for his strong defenses of tribal sovereignty, his empathetic understanding of Native American history, and his ability to write about one of the most complicated areas of the American legal system with unusual clarity.
He continued that trend in Thursday’s ruling in Navajo Nation v. Arizona, where the court decided against the tribe’s efforts to compel the federal government to enforce its water rights. Writing for himself and the court’s three liberal justices, Gorsuch dissented from the ruling. “As they did at Bosque Redondo,” he wrote, referring to the site of an 1868 treaty, “[the Navajo] must again fight for themselves to secure their homeland and all that must necessarily come with it. Perhaps here, as there, some measure of justice will prevail in the end.”
This time, however, Gorsuch’s might not be the opinion that truly stands out. Justice Clarence Thomas wrote a solo concurring opinion where he explained that while he agreed with the majority’s reasoning in full, he was writing separately because he thinks that the court should “clarify” some of its most important Indian law and tribal sovereignty rulings—meaning that he thinks they should be overturned. Doing so would upend two centuries of federal-tribal relations and fundamentally reshape Native Americans’ place in the American constitutional order.
Thursday’s dispute sprang from the Colorado River. The scarcity of water in much of the American West has led to unique legal structures to ensure it is fairly allocated. One of those structures is the Colorado River Compact, which Congress and seven states established in 1922. It divides the river into upper and lower portions and sets out specific water allotments for each state to receive. As the Western population has grown and droughts have lowered the amount of available water, these allotments have taken on even greater importance.
The Navajo Nation is not part of the Colorado River Compact or its allotment formula, even though its reservation is within the river’s watershed. While some tribal reservations are quite small, the Navajo lands are not: They span most of northeastern Arizona as well as notable portions of Utah and New Mexico. More than 160,000 people live there, making it the most populous reservation in the United States. As the Navajo Nation observed in its brief for the Supreme Court last year, obtaining potable water is often difficult. Roughly one-third of the Navajo Nation’s inhabitants don’t have access to running water, for example.