[co-author: Ariel Jones]

In a highly unwelcome decision for Native tribes relying on treaties with the U.S. government, the U.S. Supreme Court held recently that the government’s general trust obligation to Navajo Nation does not require the federal government to take affirmative steps to secure water for the Navajo reservation. In the 5-4 decision in Arizona v. Navajo Nation, Justice Brett Kavanaugh opined for the majority that nothing in the text of the 1868 treaty between Navajo Nation and the U.S. creates a “conventional trust relationship” with regards to water. The tribe is located in a region undergoing a historic drought, and it had argued the U.S. had a legal obligation to assist the tribe obtain much-needed water access.

Justice Neil Gorsuch, who not infrequently votes on the side of Tribal nations, made clear in his reproving dissent that nothing about the U.S. relationship with Navajo Nation, or any tribe for that matter, is conventional. Gorsuch recounted the history of the 1868 Treaty of Bosque Redondo, when the Navajo people faced a daunting power imbalance and language barrier. Unsurprisingly, this is a common theme across most, if not all, historic treaties between Indigenous peoples and the U.S. It is so common, in fact, the Marshall Court opined over 150 years ago that treaties, statutes, and regulations are to be interpreted in favor of the tribes. This “Indian canon of construction” was mentioned nowhere in Kavanaugh’s opinion, an unconventional deviation from principles of federal Indian law, especially considering his reliance on the 1868 treaty.

Kavanaugh’s opinion did not deviate so far as to crush the U.S. government’s general trust obligation to federally recognized tribes altogether, but it never got to the question Navajo Nation was asking either. In Winters, the 1908 Supreme Court found that the United States does have to reserve necessary water for the Indian reservations it creates (“Winters doctrine”). Navajo Nation, whose water rights have never been litigated, brought this claim in part to determine the bounds of the U.S. obligation. Saying only that the federal government does not have to “take affirmative steps to secure water for the tribe,” Kavanaugh took an unconventional route to avoid answering the question.

So where does Navajo Nation go from here? Gorsuch had the answer – back to square one. In our opinion, in addition to disregarding the principles of federal Indian law, Kavanaugh demonstrated a fundamental misunderstanding of water law. In the West, prospective adjudication to allocate water rights is commonplace. Kavanaugh suggested the Court might consider cases of “direct interference” with Navajo Nation’s water supply. However, with the dire water situation in the West, that might be too late for the Navajo people, a sequence unfortunately familiar to Indian Country.

The U.S., time and again, has declared itself trustee to tribes, failed to meet its obligations as such, and left tribes searching for restitution. We hope there will come a day when the federal government asks for Indigenous peoples’ permission to use natural resources, rather than asking for their forgiveness after exploitation. One thing is certain: Navajo Nation will not stop fighting for its water rights.