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on Thursday, 6 July 2023 in Environmental Pulse: Vanessa A. Silke, Editor

In Arizona v. Navajo Nation, the court held that an 1868 treaty reserved water rights but did not require the federal government to secure that water for the reservation.

Under the Winters doctrine, the federal government’s reservation of land for an Indian tribe also implicitly reserves the right to use necessary water within the reservation. Winters v. United States, 207 U.S. 564, 576-77 (1908).

Faced with an historic water shortage in the desert southwest, the Navajo Tribe (“Navajos”) tried to push the Winters doctrine a step forward. The Navajos brought a breach-of-trust claim against a number of federal agencies, with a demand that the federal government affirmatively provide water to the tribe.

The Navajos’ claim rested on an 1868 treaty with the federal government. The treaty “set apart” a reservation for the “use and occupation of the Navajo tribe” as their “permanent home.” Citing that language, the Navajos sought a court order compelling the federal government to meet their water needs. This would have potentially required the federal government to curtail state-administered water rights held by non-tribal users, and install pipelines, pumps, wells, and related infrastructure to resolve the tribe’s claim.

The States of Arizona, Nevada, and Colorado intervened against the Navajos to protect their interests in the water at issue. The district court rejected the Navajos’ claim, but the Ninth Circuit Court of Appeals reversed. It found that the treaty obligated the federal government to secure water for the Navajos.

On appeal, the U.S. Supreme Court reversed. Justice Brett Kavanaugh, writing for a five-justice majority, rejected the Navajos’ claim. A copy of the opinion is available here.

In breach-of-trust cases, the plaintiff must establish that the text of a treaty, statute, or regulation imposed certain duties on the other party. The federal government owes a judicially enforceable duty to a tribe only when it expressly accepts such duty. United States v. Jicarilla Apache Nation, 564 U.S. 162, 177 (2011).

The court held that while the treaty obligated the federal government to recognize the Navajos’ water rights, it did not impose any federal duty to affirmatively secure water for the Navajos. The treaty specifically required the federal government to provide certain “seeds and agricultural implements,” but it said nothing about affirmatively securing water. Even in subsequent Colorado River litigation, the federal government never assumed a duty to provide water for the Navajos.

While five justices joined the court’s opinion, Justice Neil Gorsuch (joined by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson) dissented. He emphasized the context, contending that in the arid southwest, a treaty allowing the Navajos to return to their homelands necessarily implied a promise of adequate water.

Despite joining the court’s opinion in full, Justice Clarence Thomas wrote separately to question the court’s Native American jurisprudence dealing with “pro-Indian canons of construction” and the federal government’s plenary power. He argued that those concepts lack support in the Constitution and should be limited.

This opinion draws a critical line between the federal government’s duties to recognize and affirmatively provide water. While the Winters doctrine requires the federal government to recognize impliedly reserved water rights to accomplish the purpose of the reservation, the government has no actual duty, absent specific treaty language, to affirmatively obtain the water for a reservation.

Attorneys at Baird Holm LLP have broad experience in water rights and litigation. Please contact us if you have questions about this case or a related matter.

Hannes D. Zetzsche
Lauren A. Dubas, Summer Associate

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500

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