The U.S. Supreme Court delivered a blow of sorts to the Navajo Nation over its access to clean, running water because the conservative majority said the “ask” from the nation went beyond treaty obligations enshrined in 1868.

It wasn’t what the Navajo Nation had hoped for.

The nation’s president, Buu Nygren, called it a sad day but a motivator.

“So, it will be an exciting time to put up a good fight. So, I know that as Navajo people, we don’t just lay down and let people tell us how things are managed,” he said Friday afternoon in a Zoom conference. “We continue to survive and we continue to make the best for our families and our communities. So, that’s how I feel, for I feel that we’re going to come out stronger.”

The Navajo Nation has long claimed that the federal government is required by the treaty to do more to meet the reservation’s water needs, where an estimated 30% to 40% of residents lack access to clean running water.

But the court ruled water rights and providing water infrastructure are two different things, emphasizing it is not the government’s role to take an “affirmative” step to provide that benefit of delivery, under the treaty.

Supreme Court rejects Navajo Nation argument for federal assistance in Colorado River Basin

Nygren lamented the decision as disappointing because Navajo should not have to rely on so many rudimentary means to get access to clean water.

“There’s so many families that are tired of hauling water, so many families that are still drinking at a windmill water (pump), which is just the way I grew up. And that’s unfair. But as your president I will continue to move forward, and always protect Navajo sovereignty,” he said.

Citing an 1868 treaty, the Navajo Nation argues it deserves more Colorado River water

Shay Dvoretzky, an attorney in the case representing the Skadden Arps law firm in Washington, D.C., said the decision did not grant the relief the Navajo Nation sought yet still provided a number of “silver linings” in the nation’s favor.

“The Supreme Court had held that when the federal government creates an Indian reservation and (it) also reserves water rights to go with the land. And in yesterday’s opinion, all nine justices reaffirmed the continued vitality of that doctrine.”

That means the reservations have the right to use needed water from various sources such as groundwater, rivers, streams, lakes and springs that are on border crossings or encompassed on land within the reservation, Dvoretzky said.

How 18 years, 2 Utah senators and nearly $220 million help the Navajo

He emphasized that some in the media have wrongly reported that this was a water rights case when it actually encircled access to that water via delivery systems. Both the majority opinion and the dissent in the 5-4 decision unequivocally upheld tribal water rights.

Also, he said the court left open the possibility for more negotiations, especially via the Navajo Nation pursuing congressional action that could put it on solid ground in terms of infrastructure needs.

“The majority opinion said Congress and the President may update the law to address modern water needs and the Navajo people,” he said.

“Although we didn’t get the relief that we wanted from the court in this particular case, that doesn’t end the nation’s fight for the water that it needs,” he added. “And in fact, there are a number of opportunities I think this opinion creates.”

Dvoretzky clerked for the U.S. Supreme Court, has litigated 17 cases before the justices, heads up his firm’s Supreme Court and Appellate division and was named litigator of the year in 2019 by American Lawyer.