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January 22, 2024 HUMAN RIGHTS

The Supreme Court and Tribal Water Rights

by Leonard R. Powell

Few issues in the American West are as pressing or as vexing as the escalating water crisis. And as water in the West continues to dry up, Tribal water rights become more and more critical with every passing year. Against this backdrop, the U.S. Supreme Court recently decided Arizona v. Navajo Nation, a case that asked whether the Navajo Nation’s treaties impose on the United States an obligation to assess the Nation’s water needs and develop a plan to meet them. The Supreme Court answered no, in a decision that is likely to shape future Tribal efforts to secure much-needed water resources.

The Winters Doctrine

The law governing Tribal water rights was first established in Winters v. United States (1908). Arising out of Montana, Winters concerned rights to the Milk River, which forms the northern boundary of the Fort Belknap Indian Reservation. Non-Indians upstream from the reservation owned arid lands that they wished to cultivate. They thus built dams, ditches, reservoirs, canals, and other waterways to divert the river’s waters for irrigation of their lands. In so doing, however, the non-Indians interrupted the flow of the river to the reservation and deprived the Indians of the use of its waters. The United States thus brought suit to enjoin the non-Indians from preventing the water from flowing downstream.

The case made its way to the U.S. Supreme Court. To resolve the dispute, the Court assessed the water rights of the Indians living on the reservation. No treaty or other agreement expressly addressed rights to the Milk River. But the agreement the tribes had negotiated to create the reservation specifically set aside the tribes’ lands “as and for a permanent home and abiding place.” The Court thus turned to this compact as the source for any water rights the tribes held.

To construe this agreement, the Court looked at the parties’ intent, which the Court discerned from the negotiating context. The reservation, the Court observed, was a part of a much larger tract that had belonged to the Indians before they entered into the agreement. And in that larger tract, the Indians had possessed not just the lands but the waters—including, the Court noted, “command of all [the waters’] beneficial use, whether kept for hunting, and grazing roving herds of stock, or turned to agriculture and the arts of civilization.” The section of the tract chosen for the reservation, however, was “arid, and, without irrigation, . . . practically valueless.” Indeed, when the tribes and the United States negotiated the treaty, it was obvious to both that the reservation could serve as a permanent homeland only if the tribes could access “the waters which made it valuable or adequate.” In those circumstances, it was plain the tribes had not intended to relinquish their right to the waters of the Milk River. Just the opposite: The Court concluded the tribes had intended to retain the water rights necessary to preserve their existence at their “permanent home and abiding place.” And those retained rights, in turn, superseded those of the non-Indian landowners, whose state law water rights had not been perfected until after the tribes’ agreement was executed.

Winters thus established that the creation of an Indian reservation impliedly reserves water rights needed to serve the purposes for which the reservation was created and that those rights supersede later-arising state law water rights. Since then, the Court has filled in additional contours of the Winters doctrine—providing guidance, for instance, as to how to quantify agricultural Tribal water rights. Many critical questions about Tribal water rights, however, remain unanswered, including questions about how tribes can access their water rights.

Few issues in the American West are as pressing or as vexing as the escalating water crisis.

Few issues in the American West are as pressing or as vexing as the escalating water crisis.


The Navajo Nation Decision

Decided 115 years after Winters, Navajo Nation is the latest Supreme Court case to grapple with the scope and meaning of the water rights that tribes reserved when they secured their reservations.

Like the tribes of the Fort Belknap Indian Reservation, the Navajo Nation possesses a negotiated-for reservation—in this instance, guaranteed by two treaties. In 1849, the Navajos and the United States signed a treaty in which the United States promised to “designate, settle, and adjust” the boundaries of a reservation for the Navajos and to “so legislate and act as to secure” the Navajos’ “permanent prosperity and happiness.” In 1868, the Navajos and the United States signed a second treaty that began to fulfill the 1849 treaty’s promises by establishing the Navajo Reservation.

In negotiating the 1868 treaty, water was at the forefront of the Navajos’ minds. The Navajos’ homelands were ideal for cultivating crops and raising livestock, which the Navajos had done since at least the late 1500s. But in 1863, the United States forcibly relocated the Navajos to Bosque Redondo in eastern New Mexico via a series of forced marches known as the “Long Walk.” Bosque Redondo had little water, and the United States came to recognize that the conditions there were deplorable. The Navajos desperately sought to return to their homelands—in significant part due to the water available there.

Eventually, the United States agreed that the Navajos could go back to their own country, resulting in the 1868 treaty, which guaranteed a “permanent home.” The United States, however, did not provide the Navajos with all the land it had promised them. Over time, the reservation was expanded to make the Colorado River the reservation’s western boundary. But even today, the initial promise made to the Nation remains unfulfilled, and the scope of the Nation’s water rights has been disputed for decades.

Today, the Navajo Nation’s water needs are serious. Over 30 percent of Navajos on the Navajo Reservation lack running water. Many must travel great distances to collect water. And the average Navajo member uses only about 7 gallons of water per day—strikingly little compared to the 80–100 gallons of water per day that the average American uses for household needs.

Against this backdrop, the Navajo Nation sued the United States in an effort to redress its water needs. Citing the Winters water rights impliedly reserved by its 1849 and 1868 treaties, the Nation alleged that the United States breached its treaty-based duties to provide the Nation with sufficient water to fulfill the promise of a permanent homeland. As a remedy, the Nation sought an order requiring the government “to determine the water required to meet the needs of the Nation’s lands in Arizona and devise a plan to meet those needs.” After losing in the district court, the Nation prevailed before the Ninth Circuit, which determined that the Nation had identified specific treaties and other provisions that imposed fiduciary obligations on the United States requiring the government to provide the requested relief.

The Supreme Court reversed the decision of the Ninth Circuit. The Court emphasized that the question was not whether the United States had interfered with the Navajo Nation’s ability to access water. Instead, the Court said, the Nation contended that the treaties required the government to “take affirmative steps to secure water for the Navajos.” The Court declined to hold that the treaties imposed such affirmative obligations on the government. Such affirmative obligations, the Court stressed, are judicially enforceable only when they are expressly accepted by the government in specific rights-creating or duty-imposing language. And the Nation’s treaties, the Court concluded, “said nothing about any affirmative duty for the United States to secure water.” For that reason, the Nation’s suit failed.

Future Implications

Navajo Nation is likely to shape future efforts to secure Tribal water resources. As the Navajos’ situation illustrates, many Tribal water rights remain unquantified or inaccessible even today, more than a century after Winters was decided. In the wake of Navajo Nation, it may prove difficult for tribes to solve such problems by seeking judicial relief against the United States. Tribes, though, are not without political branches directly for the help that they need. And when the political branches fail in their duties, even the courts can still provide a viable path forward when a treaty or other duty-imposing language is sufficiently clear.

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Leonard R. Powell

Special Counsel, Appellate and Supreme Court Practice at Jenner & Block, LLP

Leonard R. Powell is a special counsel in the Appellate and Supreme Court practice at Jenner & Block, LLP, where he represents clients before appellate and trial courts in high-stakes cases involving statutory interpretation, constitutional law, administrative law, and federal Indian law. He has played a key role in securing landmark victories for Indian country before the U.S. Supreme Court, including Haaland v. Brackeen and McGirt v. Oklahoma.