The history of the Diné (Navajo) people is littered with broken promises and unfulfilled obligations by the U.S. government. Accordingly, it should come as no surprise that in Arizona v. Navajo Nation, 599 U.S. 555 (2023), the Supreme Court of the United States held that the federal government is under no obligation to take affirmative steps to help the Navajo Nation secure the water rights promised to it under the Navajo Treaty of 1868.
In overturning the U.S. Court of Appeals for the Ninth Circuit’s ruling that the United States has a duty under the Navajo Treaty of 1868 to take affirmative steps to secure water for the Navajos, the majority opinion stated, “[n]otably, the 1868 treaty did impose a number of specific duties on the United States, but the treaty said nothing about any affirmative duty for the United States to secure water. As this court has stated, ‘Indian treaties cannot be rewritten or expanded beyond their clear terms.’” Id. at 565.
The Navajo Nation is the largest reservation in the United States, with more than 170,000 Diné living on the reservation, which spans more than 17 million acres across the states of Arizona, New Mexico, and Utah. Id. at 559. A significant number of households in the Navajo Nation do not have access to potable water. See, e.g., About the Bennett Freeze, Navajo Thaw Implementation Plan. Drought has devastated the Navajo Nation, with ranchers being particularly hard hit. Many sheep ranchers must now remove sheep from the range more frequently than in earlier years to allow ecosystems to restore themselves. Other ranchers have transitioned to cattle ranching, which is harder on grass and requires the introduction of nonnative plants for feed, resulting in further ecological disruption. See., e.g., N. Ariz. Univ., Navajo Nation: Dune Study Offers Clues to Climate Change Impacts (2008). In light of this ruling, the Diné will be forced to continue to deal with the extreme drought on the reservation, being exacerbated by climate change, without any additional assistance from the U.S. federal government.
Forced Displacement and the Navajo Nation Treaty of 1868
At the United States’ proclamation of the annexation of the Territory of New Mexico in 1848, which encompassed the whole of Navajo Nation across portions of four present-day states, U.S. Army Gen. Stephen Kearny promised the assembled white settlers that the United States would “keep off the Indians, protect you and your persons and property, and . . . protect you in your [Christian] religion.” Proclamation of Brigadier General Stephen W. Kearny to the People of Las Vegas: August 15, 1846, The Hist. Marker Database (2021). To expand into a continent that was the homeland of numerous tribes, the United States formulated a version of the European “doctrine of discovery,” in which land belonged to a European conqueror and any Indigenous peoples found there had only tribal rights of occupancy that could be surrendered. See Johnson v. M’Intosh, 21 U.S. 543, 583 (1823) (holding “discovery gave a title to lands still remaining in the possession of the Indians” to the colonizing party).
The journey of the Diné from their ancestral lands onto the Navajo Nation reservation involved destruction, debasement, forced assimilation, and two ratified treaties—the Treaty of 1850, Treaty Between the United States of America and the Navajo Tribe, Sept. 9, 1849, 9 Stat. 974 (1850 Treaty), which established U.S. presence among Diné settlements, and the Navajo Treaty of 1868, Treaty Between the United States of America and the Navajo Tribe, June 1, 1868, 15 Stat. 667 (Navajo Treaty of 1868), which established the Navajo Nation reservation.
The 1850 Treaty established the relationship of the United States with the Diné and provided for an agency office, forts, and trading posts. The forts and trading posts brought in the colonial system of frontier trade. The United States promised the Tribe protection and “permanent prosperity and happiness.” Navajo Treaty of 1868. However, Fort Defiance soldiers stood by as settler militia, coming from all directions, attacked Diné homes. In this period, Diné families began forced movement, erecting temporary shelter while continuing to plant and raise livestock. See Nancy C. Maryboy & David Begay, The Navajos of Utah, in The History of Utah’s American Indians 280 (Forrest S. Cuch ed., 2000). In 1863, soldiers joined the militia to clear out all Diné, and other area tribes, in a brutal scorched-earth campaign, torching homes and farms, destroying all waterholes, and taking all livestock “when every living being became an enemy that finished in death.” Id. After near-starvation and a promise that they would be safer and well-fed under U.S. Army protection, thousands of Diné surrendered at Fort Defiance in the winter of 1863 and were force-marched over 300 miles to a makeshift “reservation” at Bosque Redondo near Fort Sumner. Id.
The million acres of barren, alkaline land at Bosque Redondo was the intended permanent Navajo reservation, but it was a catastrophe from the beginning. Compounding scarce rations, there was frequent flooding from the Pecos River, severe hailstorms, drought, insects, and scarce firewood. Id. at 285. There was rampant smallpox, chickenpox, and pneumonia, diseases for which Navajos had little immunity; trafficking of women in exchange for food for their families; and widespread corruption among the military and civilian authorities in charge of the prisoners. By 1868, a minimum of 3,000 Diné (at least 20% of the Tribe) perished in captivity. Id. Certain Navajo engaged in armed conflict against their captors.
The Navajo Treaty of 1868 began with both sides agreeing that hostilities between the parties shall forever cease. The boundaries of the reservation—roughly 5,110 square miles or three million acres encompassing Fort Defiance and traditional agricultural lands in the San Juan Basin and Canyon de Chelly—were defined for the Tribe’s “use and occupation,” impliedly held by the Tribe in common. Navajo Treaty of 1868 art II. The United States defined who could enter the reservation and who was authorized to construct buildings to support the federal government’s continued presence, including agency offices, warehouses, and chapels. Id. arts. I–III. In exchange for the Navajo Nation agreeing to not “make any permanent settlement elsewhere,” id. art. XIII, the U.S. government designated individual plots of lands and supplied livestock to the Diné. Id. arts. V & XII. Through these treaty-based promises, the U.S. government sought to encourage a farming-based agrarian lifestyle among the Diné, which obviously requires access to water to succeed.
Navajo Nation Argument in Favor of Its Water Rights
The Navajo Nation Treaty of 1868 includes the promise of water rights, in addition to the land within the boundaries of the reservation, which was expressly acknowledged by the Court. Navajo Nation, 599 U.S. at 561–62. The Court stated that when the United States establishes a tribal reservation, such as the Navajo Nation, the Tribe’s bundle of property rights includes “the land, the minerals below the land’s surface, the timber on the land, and the right to use needed water on the reservation, referred to as reserved water rights.” Id. at 562. Often referred to as the Winters doctrine, the Court’s longstanding reserved water rights doctrine reserves the right of tribes to use water from various sources, including “groundwater, rivers, streams, lakes, and springs—that arise on border, cross, underlie, or are encompassed within the reservation.” Id. at 561 (quoting Winters v. United States, 207 U.S. 564, 576–77 (1908)). However, the Court notes that such use is limited “to the extent needed to accomplish the purpose of the reservation.” Id. The Court fails to identify what the purpose of the Navajo reservation is, but the cases it relies upon have held that the U.S. government could control the volume of water necessary for a tribe to farm or fish to survive. See Winters, 207 U.S. at 576–77.
To accomplish the purpose of the Navajo reservation, the Diné obtain water from the Colorado, the Little Colorado, and the San Juan rivers and their tributaries under their reserved tribal water rights promised to them pursuant to the Navajo Treaty of 1868. However, the Navajo Nation, much like the many other areas in the southwestern United States, faces a crisis of water scarcity that is only getting worse. From 2000 through 2022, the southwestern United States has experienced the driest 23-year period in more than a century and one of the driest periods in the last 1,200 years. Navajo Nation, 599 U.S. at 561. As a result, the Navajo Nation has been forced to compete with the states of Arizona, Nevada, and Colorado for access to water from the Colorado River. For the United States to fulfill its promises pursuant to the Navajo Treaty of 1868, the Navajo Nation argued that it must take affirmative steps to secure water for the Tribe, including by assessing the reservation’s water needs, developing plans to secure the necessary water, and potentially building the infrastructure necessary to ensure access to the water in question.
Majority Opinion Rejecting Navajo Nation’s Argument
Justice Kavanaugh wrote the majority opinion, which his conservative colleagues Justices Roberts, Thomas, Alito, and Barret joined. Although the Court affirmed the United States’ trust relationship with the Navajo Nation, it distinguished the United States as a sovereign, as opposed to a private trustee. This means that the United States does not assume all of the fiduciary duties of a private trustee, instead creating a more limited trust relationship than what would be required as between private parties under common law. Therefore, the Court will not “infer duties not found in the text of a treaty, statute, or regulation” to impose additional duties on the United States as a trustee. Id. at 566.
Crucially, the Court concluded that the Navajo Treaty of 1868 “did not impose a duty on the United States to take affirmative steps to secure water” for the Navajo Nation. Id. Accordingly, the Court held that the Navajo Nation failed to state a breach of trust claim based on the clear text of the Navajo Treaty of 1868. The Court concluded that to maintain such a breach of trust claim, the Navajo must establish that the text of the treaty, a statute, or a regulation imposes a specific duty on the United States.
The Court further stated that “[u]nder the Constitution, Congress and the President have the responsibility to update federal law as they see fit in light of the competing contemporary needs of water.” Id. While noting that Congress has enacted legislation to address the water needs of Americans, including the Navajos, by authorizing billions of dollars for water infrastructure, the Court states that “it is not the Judiciary’s role to update the law.” Id. The Court concludes its discussion on a somber note, discussing its inability to address the competing contemporary demands for water in light of the zero-sum reality confronting the southwestern United States.
Dissenting Opinion
Justice Gorsuch, writing for the dissent, and joined by Justices Sotomayor, Kagan, and Jackson, explained that treaties are essentially contracts between two sovereign nations, and when interpreting such, it is matter of determining the parties’ intent. In order to interpret the parties’ intent under the Navajo Treaty of 1868, they noted that the Court should apply “familiar principles of contract interpretation,” including the implied covenant of good faith and fair dealing between the parties and the principle that any uncertainty should be construed against the drafting party. Id. at 586 (Gorsuch, J., dissenting). Additionally, the Court should consider the doctrine of unilateral mistake, “the notion that if two parties understand a key provision differently, the controlling meaning is the one held by the party that could not have anticipated the different meaning attached by the other.” Id. Notably, the dissent pointed out that given the United States often operated under the “specter of undue influence” in many of its negotiations with tribes, treaties with such tribes should never be construed in such a manner to prejudice those tribes. Id. at 586–87.
In light of the historical circumstances that led to the Navajo Treaty of 1868, the dissent asserts that the United States has a fiduciary duty with respect to water rights it holds for the Navajo Nation, especially considering the extent that the United States “exercises control over many possible sources of water in which the [Navajo] may have rights, including the mainstream of the Colorado River.” Id. at 584. Accordingly, the dissent states that the U.S. government owes the Navajo Nation a duty to manage the water it holds for it in a legally responsible manner. Included in that duty is, at minimum, a requirement for the United States to assess what rights it holds for the Navajo Nation as its land’s trustee. However, no such action has been forthcoming. As Justice Gorsuch noted in his dissent, Navajo “efforts to find out what water rights the United States holds for them have produced an experience familiar to any American who has spent time at the Department of Motor Vehicles. The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another.” Id. at 598.
