On June 22, 2023, the U.S. Supreme Court issued its opinion in Arizona v. Navajo Nation, No. 21-1484, limiting the federal government’s obligation to affirmatively secure water for federally recognized Indian tribes. The Supreme Court held that the 1868 treaty establishing the Navajo Reservation (the “Treaty”) “did not require the United States to take affirmative steps to secure water for the [Navajo Nation].” Among other things, the Court closed the door on the Navajo Nation’s ability to secure an affirmative accounting of its reserved water rights through a lawsuit directly against the federal government.
The water rights at issue in the case are “reserved water rights,” also referred to as “Winters rights.” These are rights implicitly reserved by Congress, at the time of a federal reservation of land, to accomplish the primary purposes of that reservation. See Winters v. United States, 207 U.S. 564, 576–77 (1908). Winters rights are often some of the most—if not the most—senior water rights on a particular water system, so in times of shortage, the holders of Winters rights often have priority over junior water users whose use might be curtailed. The scope of Winters rights (e.g., the instantaneous and annual volumes of water reserved) often remains unresolved absent a general stream adjudication that resolves all claims to water rights on a particular water system.
In this case, the Navajo Nation sued the federal government for breach of trust. The Navajo Nation claimed that the Treaty imposed a duty on the federal government to take affirmative steps to secure water for the Navajo Nation. The Navajo Nation sought to compel the federal government to “determine the water required to meet the needs” of the Navajo Nation (i.e., attempt to quantify the scope of the Navajo Nation’s Winters rights) and to “devise a plan to meet those needs.” The states of Arizona, Nevada, and Colorado (all members of an interstate compact allocating Colorado River water between seven Western states) intervened to defend their interests in Colorado River water. Before the case reached the Supreme Court, the federal district court where the case was filed dismissed the Navajo Nation’s lawsuit. Thus, the Supreme Court was the final decision maker to determine whether the Navajo Nation’s lawsuit against the United States could proceed. The Court acknowledged that it was deciding this case against the backdrop of historic water scarcity in the arid West and ongoing disputes regarding the allocation of Colorado River water.
A five-justice majority rejected each of the Navajo Nation’s breach of trust claims. The majority focused on whether the Treaty itself imposed judicially enforceable duties on the federal government to secure water for the Navajo Nation and ultimately held that the Treaty did not impose such duties on the federal government. The majority explained that the Treaty imposed several explicit obligations on the federal government (e.g., providing seeds for a period of three years) but was silent on any obligations with respect to water rights.
The majority characterized the Navajo Nation’s position as asking the Court to rewrite the Treaty, and the majority cited the “separation of powers” doctrine as the primary reason for refusing to do so. As the majority explained, because Congress has the power to establish treaties, only Congress can amend the terms of an existing treaty. The majority cited the zero-sum nature of water allocation as further justification for exercising judicial restraint. Any obligation of the federal government to secure water for the Navajo Nation would likely result in less water available for other water users, given the seniority that generally attaches to Winters rights.
Justice Thomas joined the majority opinion but drafted a separate concurrence to explain his view that the Court should reexamine its precedent regarding the trust obligations (if any) owed by the federal government under treaties with tribes. In particular, Justice Thomas emphasized, in his view, a troubling trend of courts invoking statutory interpretation methods that support “pro-Indian” interpretations and a lack of clear constitutional or textual basis for imposing trust obligations on the federal government.
Writing for the dissent, Justice Gorsuch argued that the Court misrepresented and exaggerated the Navajo Nation’s requested relief. The dissent articulated the question before the Court as whether the federal government has an obligation to identify and account for the water rights it holds in trust for the Tribe. The dissent viewed this question as a much narrower request of the federal government and would have held that the federal government does have such an obligation based, in part, on the dissent’s view that the federal government has a fiduciary responsibility to manage and account for the Navajo Nation’s water rights, a “trust” asset, for the benefit of the Navajo Nation. To support its conclusion, the dissent looked beyond the text of the Treaty to the historical context and other principles of Federal Indian Law. The dissent also noted that the federal government had repeatedly thwarted efforts by the Navajo Nation to assert its Winters rights on its own behalf, providing further justification for imposing on the federal government an affirmative obligation to manage and account for these rights on the Navajo Nation’s behalf. The dissent signaled its view that, if the federal government has no duty to secure water for the Navajo Nation and other similarly situated tribes, lower federal courts should allow these tribes to intervene in water rights adjudications to secure rights on their own behalf.
The Court’s decision reduces the near-term risk of further curtailment for junior water users on the Colorado River system and other water systems with unadjudicated Winters rights. Absent an affirmative obligation to secure water for tribes, the federal government’s approach to asserting and securing reserved water rights, including Winters rights, is likely to remain unchanged in the near term. At the same time, the decision relied heavily on the doctrine of “separation of powers,” signaling the majority’s view that Congress and the Executive Branch of the federal government may have significant discretion to change their approach toward managing reserved water rights. And, as noted in the dissent, there may be a renewed effort by tribes to intervene in water rights adjudications and assert claims on their own behalf. Whether those efforts will be successful remains to be seen.
Matteo Crow (summer associate) assisted in the preparation of this legal update.