Supreme Court Decides Arizona v. Navajo Nation

On June 22, 2023, the U.S. Supreme Court decided Arizona v. Navajo Nation, No. 21-1484, holding that the federal government is not obligated to affirmatively secure access to water for the Navajo Nation.

An 1868 Treaty between the Navajo Nation and the United States established a large reservation for the Navajos in the Colorado River Basin. The Reservation includes “the land, the minerals below the land’s surface, and the timber on the land, as well as the right to use needed water on the reservation.” The Navajo Nation asserted a breach of trust claim against the federal government, claiming that the Treaty “require[d] the United States to take affirmative steps to secure water for the Navajos—for example, by assessing the Tribe’s water needs, developing a plan to secure the needed water, and potentially building pipelines, pumps, wells, or other water infrastructure.” Arizona, Nevada, and Colorado intervened against the Tribe based on their interest in the Colorado River’s resources. The District Court of Arizona dismissed the Tribe’s complaint, but the Ninth Circuit reversed, agreeing with the Tribe that “the United States must do more than simply not interfere with the reserved water rights.”

The Supreme Court reversed the Ninth Circuit, ruling in favor of the federal government and the intervenor states. The Court held that “[t]he Federal Government owes judicially enforceable duties to a tribe only to the extent it expressly accepts those responsibilities . . . in a treaty, statute, or regulation.” Writing for the majority, Justice Kavanaugh pointed out that the Treaty “did impose a number of specific duties on the United States,” such as the obligation to construct schools and certain shops on the Reservation, but “said nothing about any affirmative duty for the United States to secure water.”

The Court acknowledged that “the United States maintains a general trust relationship with Indian tribes, including that Navajos,” but ultimately concluded that the government “is a sovereign, not a private trustee,” and therefore not bound by the fiduciary duties that characterize a private trust. Consequently, the Court deferred to Congress and the President to enact “laws to assist the citizens of the western United States, including the Navajos, with their water needs.”

Justice Kavanaugh authored the opinion of the Court. Justice Thomas filed a concurring opinion. Justice Gorsuch filed a dissenting opinion, joined by Justices Sotomayor, Kagan, and Jackson.