The Supreme Court ruled 5–4 on June 22 that the federal government has no obligation to help the Navajo Nation gain access to water, finding that a 19th-century treaty with the government imposes no such duty.
Oral arguments in the case, which took place on March 20, centered on the Navajo Nation’s desire to draw water from the Colorado River over the opposition of several thirsty nearby states.
The case pits the Navajo Nation—a large Indian reservation occupying territory in Arizona, New Mexico, and Utah—against the states of Arizona, Nevada, Colorado, the Metropolitan Water District of Southern California, and the U.S. Department of the Interior.
The Navajo Nation is one of the largest tribes in the United States, with more than 300,000 enrolled members, roughly 170,000 of whom live on the Navajo reservation created by the treaty. The reservation is one of the largest in the country—about the size of West Virginia—spanning more than 17 million acres across Arizona, New Mexico, and Utah.
The case at hand is actually two proceedings that were consolidated: Arizona v. Navajo Nation (court file 21-1484) and Department of the Interior v. Navajo Nation (court file 22-51).
Conservative Justice Neil Gorsuch wrote a dissenting opinion, which was joined by the three liberal members of the court—Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
‘Trust Relationship’ With Native Americans
Indian law and water law are complex.The Supreme Court held in United States v. Mitchell (1983) that “a general trust relationship between the United States and the Indian people” has long existed. That the federal government has a duty to honor its treaty commitments is called the doctrine of trust responsibility.
About 100 years ago, an interstate compact spelled out the water rights relating to the Colorado River. The Navajo Nation, based in the arid Western part of the country, said it needed access to the river because many of its members rely on wells for water. The tribe sued in 2003, seeking access to the main section of the river, and litigation has been pursued since then.
The U.S. Court of Appeals for the 9th Circuit ruled in February 2022 that the tribe could move forward with its lawsuit, which prompted the affected jurisdictions and the federal government to ask the Supreme Court to intervene.
The Supreme Court found in Winters v. United States (1908) that creating Indian reservations from land that was part of Indian land cession treaties created Indian water rights. These rights make sure a reservation would have sufficient water to maintain its land, according to a SCOTUSblog summary.
Tribes participated in many important settlements in recent decades, but settlements regarding the Colorado River took place before that in an era when the federal government asserted it had the power to decide for tribes what water rights to claim, the summary stated.
Writing for the court, Kavanaugh said a treaty from 1868 that ended hostilities between the U.S. government and the Navajo Nation didn’t require the government to do anything to help the tribe obtain water.
The treaty included provisions about the land, the minerals below its surface, timber, and the right to use needed water on the reservation that was established by the treaty, the justice wrote.
“The Navajos’ claim is not that the United States has interfered with their water access. Instead, the Navajos contend that the treaty requires the United States to take affirmative steps to secure water for the Navajos—for example, by assessing the Tribe’s water needs, developing a plan to secure the needed water, and potentially building pipelines, pumps, wells, or other water infrastructure—either to facilitate better access to water on the reservation or to transport off-reservation water onto the reservation.
“In light of the treaty’s text and history, we conclude that the treaty does not require the United States to take those affirmative steps. And it is not the Judiciary’s role to rewrite and update this 155-year-old treaty. 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.”
The Supreme Court reversed the prior decision rendered by the U.S. Court of Appeals for the 9th Circuit.
In his concurring opinion, Thomas expressed support for the majority opinion but expressed concerns about the government’s “trust relationship” with Native Americans.
The influence of the trust relationship idea on other areas of the law “is troubling” because it “appears to lack any real support in our constitutional system” or in history, he wrote.
“The text of the Constitution (which mentions Indians only in the contexts of commerce and apportionment) is completely silent on any such trust relationship.
‘Fight Again’
Justice Gorsuch wrote in his dissent that the Navajo Nation was making a simple request.The tribe wanted the United States “to identify the water rights it holds for them. And if the United States has misappropriated the Navajo’s [sic] water rights, the Tribe asks it to formulate a plan to stop doing so prospectively.”
“Because there is nothing remarkable about any of this, I would affirm the Ninth Circuit’s judgment and allow” the case to proceed, he wrote.
Members of the Navajo Nation have had to fight for their rights for a long time already, but “they must fight again for themselves to secure their homeland and all that must necessarily come with it.”
