On June 22, 2023, the United States Supreme Court handed down its third decision regarding federal Indian law this term. In a 5-4 decision, the Court held that the Navajo Treaty of 1868 does not require the United States to take affirmative steps to secure water rights for the Navajo Nation.
The Court focused on what it perceived as the Nation’s claim, particularly emphasizing that the United States is not mandated under the Navajo Treaty of 1868 to “take affirmative steps to secure water” for the Nation. The Nation asserted a breach of trust claim, but the Court found that the government must “expressly accept” trust responsibilities in a treaty for a breach of trust claim to be enforceable against the government. Here, since the Court found the Treaty did not explicitly address water rights, the Court ruled that the government does not have a responsibility to secure water for the Nation. The Court acknowledged that a reservation of land for Indian Tribes “implicitly reserves the right to use needed water from various sources” but “only to the extent needed to accomplish the purpose of the reservation.” Thus, while the Court recognized that the Nation has a legal right to water on their reservation, it also found the federal government, which holds those rights in trust, does not have the obligation to identify or secure those rights for the Nation.
The Court addressed four of the Nation’s claims, finding none persuasive. First, the Nation asserted that the 1868 Treaty established the reservation as a “permanent home” for the Navajo people, and implicit in that is the promise that the government would provide water. The Court disagreed; it found that the assertion had no grounds in the Treaty or in history. Next, the Court rejected the Nation’s claim that the United States has control over the water source and thus owes trust duties to the Nation. The Court stated that a breach of trust claim “cannot be premised on control alone” and must be explicitly agreed upon.
Additionally, the Navajo Nation argued that the language in the Treaty where the United States agreed to provide three years of “seeds and agricultural implements” implicitly meant water would be provided since the seeds were unusable without water. However, the Court found that the reservation contained multiple water sources the Nation could use; therefore, there was no affirmative duty to secure water in those three years or “indefinitely into the future.” Moreover, Justice Kavanaugh noted that the inclusion of the three-year period suggested that the government knew how to include an affirmative duty, so the absence of water rights in the Treaty meant that it was not an intended obligation. Lastly, the Court rejected the argument that the Navajo Nation would have understood in 1868 that the Treaty obligated the United States to take affirmative steps to secure water for the Nation. It found that the Treaty said “nothing to that effect” and that the historical record did not support a claim of that nature.
The Court also found that the legislative and executive branches are better suited to address the Nation’s claims as it is “not the Judiciary’s role to rewrite and update this 155-year-old treaty.” However, it did state that the Nation may be able to assert its interests in water rights litigation. The dissent also wrote that after this decision, “it is hard to see how this Court (or any court) could ever again fairly deny a request from the Navajo to intervene in litigation over the Colorado River” since other avenues are severely limited by the majority’s opinion.
The true impacts of this decision remain to be seen. Although the decision was a loss for the Navajo Nation, the Native American Rights Fund and Indigenous nations stated that they would continue to assert their water rights. Beyond the Navajo Nation’s water rights, this ruling potentially limits any Tribal nation’s ability to enforce the federal trust responsibility owed by the United States to Indians. The majority opinion states that a tribe can only enforce the federal trust responsibility when the federal government has explicitly accepted the responsibility. Moreover, it is unclear how the decision could affect the canon of treaty interpretation traditionally understood in the Winters doctrine.
This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.
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