Supreme Court rules 5-4 against Navajo Nation in water rights dispute

SCOTUS Blog ^ | June 22, 2023 | Matthew L.M. Fletcher

[CedarDave]

Under a historic water crisis in the desert southwest, the Navajo Nation asked for a court order requiring the federal government to determine the Nation’s water needs and to devise a plan to meet those needs. In a 5-4 decision on Thursday, the Supreme Court held that the United States owes no “affirmative duty” to the Navajo Nation to secure water, reversing a decision by the U.S. Court of Appeals for the 9th Circuit. The majority ruled that the 1868 Treaty of Bosque Redondo, known to the Nation as the Old Paper, or Naal Tsoos Sani, established no federal obligation to do so.

The decision came down to how the court framed the Nation’s claims. The majority accepted the federal government’s invitation at oral argument to frame Indian treaties as establishing rights to resources such as land, timber, minerals, and water, with each property right a “stick in the bundle of property rights that make up a reservation.” The property rights theory of reservation creation effectively placed the burden on the Nation to show that the treaty explicitly required the United States to do more than merely recognize tribal water rights. Following cases such as United States v. Jicarilla Apache Nation, the court held that the United States owes no duty to Indian tribes except those expressly noted in treaties, statutes, or regulations. In other words, once the federal government recognizes tribal property rights through the treaty, the government’s obligations all but disappear in the absence of additional enactments.

The Nation had argued that the 1868 treaty did more than establish bare property rights. The Old Paper, it said, established an ongoing relationship between the tribe and the United States, often referred to as the general trust relationship or the duty of protection, that placed obligations on the federal government to act to fulfill the purposes of the treaty. It also argued that Indian land cession treaties necessarily granted a reservation the right to enough water to maintain its land. The Nation relied on the canons of construing Indian treaties, which requires the judiciary to interpret treaty language as tribal treaty negotiators would have understood it. The majority instead characterized the Nation’s argument as a demand to “rewrite and update this 155-year-old treaty.”

The decision was released as worldwide climate change has begun to dramatically dry up the desert southwest. The court tread relatively lightly on the policy ramifications of its decision but did acknowledge that water allocation in the west is a zero-sum game, presuming that a Navajo Nation victory here might well lead to decreases in water for others. The majority also noted that Congress has already agreed to establish water infrastructure for the Nation, at the cost of billions of dollars.

Justice Neil Gorsuch dissented, his third extensive writing in the last two weeks on Indian law matters. Gorsuch would have framed the issue before the court as a matter of applying the canons of construing Indian treaties. He chastised the majority for ignoring the historical context of the 1868 treaty, which arose from “the Long Walk” in 1864, in which the federal government forcibly marched the bulk of Navajo Nation from its homelands to Bosque Redondo in what is now eastern New Mexico. Gorsuch emphasized that Bosque Redondo was a harsh, inhospitable area with little or no game and agricultural opportunities, largely due to a lack of water. The 1868 treaty allowed the Nation’s citizens to return to their homelands with the promise of adequate resources. Gorsuch applied that history in light of the canons, finding that the overall context of the treaty would require the government to take affirmative steps to secure the water needed to fulfill the treaty’s purposes. He pointed to language in the Supreme Court’s 1908 decision in Winters v. United States, in which the court named the federal government a “fiduciary” of reservation resources.

Gorsuch also noted that the Nation’s complaint did not demand that the federal government guarantee water to the Navajos, but instead merely asked the government “to identify the water rights it holds for them.” The majority scoffed at that characterization of the complaint, pointing to speculation by the Nation’s counsel at oral argument that the relief requested might also require the federal government take action to build expensive infrastructure.

Gorsuch observed that the United States has long refused to act to fulfill the 1868 treaty’s purposes, acting to block efforts by the Navajo Nation since “Elvis was still making his rounds on The Ed Sullivan Show.” He did note a “silver lining,” offering suggestions on how the Nation can still attempt to intervene in ongoing Colorado River water rights litigation to assert its treaty rights to water. Gorsuch bitterly concluded, “After today, 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 or any other water sources to which they might have a claim.”

As is now common in Indian law cases, Justice Clarence Thomas wrote separately to urge the court to reconsider foundational principles of federal Indian law, his third apparent response to Gorsuch’s pro-tribal writings this term. Concurring fully in the majority opinion, Thomas suggested that the court revisit its cases recognizing the canons of construction of Indian treaties, reasoning that if there is no enforceable federal trust duty to tribal interests, then there is no basis for the canons.

[CedarDave]

Excellent discussion of the decision. Whether one may agree or disagree with the decision or with Justice Gorsuch's dissent, issues arising from the 1868 Navajo Nation treaty still are being litigated today, after 155 years of controversy.

[Dr. Sivana]

We got LOTS of rain last winter. One problem in AZ is that the Saudis are sucking out groundwater for high water need crops that will be exported. Not the best use of a finite resource.

[Leaning Right]

Excellent discussion, except that every bad thing is (again) the fault of climate change:

“The decision was released as worldwide climate change has begun to dramatically dry up the desert southwest.”

[moovova]

The Trail of Dry Tears.

[desertsolitaire]

I have had a thought.
If there is such need for potable water in the desert SouthWest US, and the Antarctic ice sheets are such a feared variable in melting and raising global sea levels....
Why not move heaven and earth to transport (secure and tow?) the “ dangerous fresh-water glacial ice sheet from Antarctica to the Desert SouthWest to be put to good use? I suspect its an easier engineering feat than terraforming Mars for human habitation... Thoughts?

[moovova]

Seriously, we’ve had rain for 8 days, with the prediction of 4 more days of rain. Every. Single. Day. I don’t remember getting this much rain for this long. I’d almost think there was something to this Global Precipitation crisis.

[monkeyshine]

Interesting case. Seems to all hinge on the Treaty itself. Doesn’t mean they don’t have other rights, or ability to negotiate or lobby Congress (or the state) for water rights.

I agree a lot of water is “wasted” on luxury agricultural items. It is wasted in private swimming pools too. And baths. There is plenty of water on earth. With “sea levels rising” as they say, sounds like a good time to invest in desalination. We can clean the sea water and pile the brine up in Arizona and Nevada. And in the process prevent the oceans from drowning New York!

Trouble is, as short supply for water is - it is still not as valuable as oil. So not much interest in large scale water piping projects let alone desalination construction.

[monkeyshine]

dramatically dry up the desert

Uh huh. If it wasn't dramatically dry, it wouldn't be called a desert.

[Southside_Chicago_Republican]

Bookmark

[coloradan]

“The decision was released as worldwide climate change has begun to dramatically dry up the desert southwest.”

This statement assumes facts not in evidence. Left unmentioned is the possible increase in draw from the much larger population, golf courses, the NSA’s need for cooling water in its Utah Center For Violations Of All Citizen’s Fourth Amendment Rights, etc. Nope, just “climate change”.

[Dr. Sivana]

I agree a lot of water is “wasted” on luxury agricultural items. It is wasted in private swimming pools too. And baths.

And here in Phoenix . . . GOLF COURSES!

At least with a swimming pool, you fill it once, and you use the same water for a long time. Even car washes reuse some water. But gold courses?

Years ago, I won a corporate trip to Super Bowl XXX, but was obliged to go to some golf event. There I was in the middle of the desert, everything lush and green, except for one patch that the sprinklers missed, a reminder of what this place is REALLY like.

[CedarDave]

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[Lockbox]

My suggestion is for The Nation to place pumps along the Colorado River where it touches their nation and take all the water they need. Too bad the US did not include that in the deal and since The Nation is a separate and let the UN enter into the deal. Tie the deal up in different governments, courts and other entities but keep pumping....

[ProtectOurFreedom]

Where are you getting all this rain?

It’s quite cold and dry here in the Inland Northwest. It is finally forecasted to warm up in the next week to ten days. Evenings and night times are still sweatshirt, sweater, and jacket weather.

[Valpal1]

“worldwide climate change has begun to dramatically dry up the desert southwest.”

I get so tired of this bogus claim. If global warming actually melts the ice sheets, there will be more water in the water cycle and more effing rain every where. Less desert, more vegetation.

[monkeyshine]

Indeed. I heard the humidity levels in Las Vegas have been rising greatly over the last two decades because of the massive housing developments, the lawns and golf courses, pools and maybe that gigantic fountain at the Bellagio (which is, to their credit, filled with grey water). It’s supposed to be arid - dry heat. But 112 AND humid? Blech.

[ProtectOurFreedom]

The Nation had argued that the 1868 treaty did more than establish bare property rights. The Old Paper, it said, established an ongoing relationship between the tribe and the United States, often referred to as the general trust relationship or the duty of protection, that placed obligations on the federal government to act to fulfill the purposes of the treaty. It also argued that Indian land cession treaties necessarily granted a reservation the right to enough water to maintain its land. The Nation relied on the canons of construing Indian treaties, which requires the judiciary to interpret treaty language as tribal treaty negotiators would have understood it. The majority instead characterized the Nation’s argument as a demand to “rewrite and update this 155-year-old treaty.”

I've lived many years close to tribal reservations in upstate New York and North Idaho, so this strikes me as yet another in a long line of abuses of the natives in North America. How can we grant them reservations but not provide enough water?

I'm yet again reminded of what happened to this maiden...

[Vigilanteman]

Yep. As far back as the 1960s when I was still a wee lad, I remember discussion of the lunacy of the government paying farmers in the southeast NOT to grow cotton while farmers in Arizona were subsidized to grow cotton.

Rumors were that it was LBJ's revenge for most states in that region voting against his landslide reelection in 1964. But since Arizona voted against him as well, that didn't make a lot of sense to me.

[MinorityRepublican]

Neil Gorsuch is usually good but he's squishy when it comes to Native Americans. The Americans came and conquered the land. Might is right. As simple as that. It's done with. We are giving Native Americans their casinos and some exemptions from taxes so they can sell tobacco for cheap. That should be about it.

One more Justice, we'll have the Supreme Court give all the land back to the Native Americans. You can't do that lol.

[Dr. Sivana]

But since Arizona voted against him as well, that didn't make a lot of sense to me.

Arizona might have gotten a pass as it was Goldwater's home state.