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.