OPINION ANALYSIS

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

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.