II. Background
The Colorado River runs through a long swath of the American West—starting its path in the middle of the Rocky Mountains, running through myriad landscapes, jurisdictions, and habitats before finally joining the waters of the Sea of Cortez (also known as the Gulf of California). On this path, the river runs through seven states and into Mexico, as well as through the homelands of dozens of Tribal Nations, including lands within the expansive Navajo Reservation, the largest Indian reservation in the United States in terms of acreage. The waters of the Colorado River—long the source of conflict and competition between the seven states with lands appurtenant to it—are allocated separately between the Upper Basin states of Colorado, Utah, Wyoming, New Mexico, and Arizona and the Lower Basin states, including California, Arizona, and Nevada, with the nation of Mexico also holding an entitlement to a share of the river’s flow pursuant to later negotiated agreements with the United States. At issue in Arizona v. Navajo Nation is the Navajo Nation’s ability to secure access to the water it holds rights to within the Lower Basin, an area known for aridity and rapid population growth in recent decades.
Tribal Nations’ homelands in Arizona encompass 27.7%—nearly a third—of the land area within the state’s boundaries, the highest percentage of tribal land in any state in the nation. Indigenous farmers also make up a significant percentage of agricultural water users in the state. Established through the terms of negotiated settlements with Tribal Nations and decisions by courts of law, the amount of decreed water rights held by fourteen of the twenty-two federally recognized Tribal Nations in Arizona is substantial. Importantly, nine Tribal Nations, including the Navajo Nation, have yet to complete determination of their water rights, which could be considerable in quantity and impact. Tribal Nations already hold rights to the greater portion of Arizona’s allocation under the Colorado River Compact. The importance of hearing, honoring, and respecting the rights of Tribal Nations to water has never been more apparent and pressing.
The legal framework underlying the rights of Tribal Nations to water is well established. In 1908, the United States Supreme Court issued its decision in Winters v. United States, ruling that the establishment of an Indian reservation impliedly also reserved a sufficient amount of water to meet the purposes of the reservation—in that case, agriculture and domestic settlements. Since that time, the Winters Doctrine, as it has become known, has been examined and applied to uphold the rights of Tribal Nations, and the rights of their individual members or citizens, to provide for their use of increasingly scarce and precious water resources.
Under the Winters Doctrine, tribal reserved rights to water have a priority date of the establishment of the reservation. This configuration means that they are first in line for fulfillment over later-in-time uses and claimants. As a matter of law, tribal reserved water rights are not lost due to nonuse. Even if a right has not been put to beneficial use, it remains valid and enforceable, having vested at the time that it was established. This rule is incredibly important given the history of abuse and theft of tribal lands and resources and the historic underfunding of water infrastructure by the federal government and other interests on and around Indian reservations. In many cases, these abusive or neglectful practices effectively prevented Tribal Nations and individuals from putting their water to beneficial use.
While the Navajo Nation’s claims in the instant case were first brought in 2003, we must look back much further to fully understand the degree to which past decisions and processes created the current situation. It may make sense to begin with the Colorado River Compact (Compact), approved by the seven basin states in 1922 in a series of meetings and negotiations that did not include representatives from the Tribal Nations. The Compact sets out the entitlements of the Upper and Lower Basin states, among other things, allocating 7,500,000 acre feet of water to each basin for consumptive use, including “all water necessary for the supply of any rights which may now exist.” The Compact also contained a relatively terse article disclaiming any impact by the Compact on “the obligations of the United States of America to Indian tribes.” In the century since the Compact was initially negotiated, additional agreements, court decisions, regulations, and administrative rulings dealing with the management and allocation of the waters of the Colorado River have been issued and are referred to as a body of authority known as the “Law of the River.” The vast majority of the many components of the Law of the River were negotiated, developed, or decided using processes that disregarded tribal rights and excluded Tribal Nations from participating in appropriate and rightful roles as sovereign stakeholders with a corresponding interest in the allocation and administration of the Colorado River.
On June 20, 2023, the United States Supreme Court issued its decision in Arizona v. Navajo Nation, ruling that the Navajo Nation could not bring a claim for breach of trust against the United States for its failure not only to assess or plan for the fulfillment of the Navajo Nation’s water needs and unquantified rights to water in the mainstream of the lower Colorado River but also to perform certain management roles in relation to the Colorado River in a manner consistent with fulfillment of the unquantified water rights of the Navajo Nation. The Court’s ruling overturned the Ninth Circuit decision but left room for the Navajo to potentially pursue relief through other approaches. Writing for the majority, Justice Kavanaugh was joined by the Chief Justice and Justices Alito, Thomas, and Coney Barrett. Justice Gorsuch wrote a lengthy and detailed dissent, joined by Justices Sotomayor, Kagan, and Jackson. Justice Thomas also filed a concurring opinion.
III. Procedural History
The history of Arizona v. Navajo Nation extends back to 2003 when the Navajo Nation brought suit against the U.S. Department of Interior and federal officials in federal district court in Arizona, seeking declaratory and injunctive relief. The Navajo Nation filed its complaint in the Federal Court in and for the District of Arizona in 2003. The claims initially asserted by the Nation were based on the National Environmental Policy Act and the Administrative Procedure Act and stemmed from federal management and allocation decisions in relation to the lower Colorado River. After a lengthy stay for settlement negotiations, which did not ultimately resolve the issues in the case, the trial court granted motions to dismiss the Nation’s claims in 2014, largely on standing and sovereign immunity grounds.
The Ninth Circuit Court of Appeals affirmed in part, reversed in part, and remanded the case back to the lower court. The Nation then moved to file its third amended complaint, adding additional allegations to support its breach of trust claim, as well as new claims based on its 1868 Treaty and the trust responsibility of the United States to the Navajo Nation. The district court denied the Nation’s motion to amend, citing the United States Supreme Court’s retained exclusive jurisdiction over the allocation of water in the lower Colorado River under Arizona v. California. The district court held that allowing the Nation’s amended complaint to go forward “would require this Court to determine the Nation’s rights to water from the [Colorado] River.” The court further held that such a determination was “off limits to any lower court.” The Nation renewed its motion to file a third amended complaint, which was also denied by the federal district court, again citing to the “Supreme Court’s reservation of jurisdiction” over allocations of water rights to the lower Colorado River, as well as to limitations on the United States’ liability for violations of its trust responsibility to Indian tribes under existing precedent.
Reviewing the lower court’s decisions that it lacked jurisdiction to review the Nation’s claims, the Ninth Circuit Court of Appeals reversed and remanded the case back to the district court with instructions. The panel decision, authored by Judge Gould, held that (1) jurisdiction over the Nation’s asserted breach of trust claim was not barred by the Supreme Court’s ongoing authority over allocation questions in Arizona v. California; (2) the claim was not barred by res judicata; and (3) the Nation’s proposed third amended complaint sufficiently stated a breach of trust claim. The Ninth Circuit’s decision noted that the Nation did not seek an actual quantification of rights to the Colorado River and, based on that distinction, ruled that the lower court had jurisdiction to determine the Nation’s claims. The Ninth Circuit further ruled that the Nation’s proposed amendment to its complaint was not futile, exploring in detail the history of the Navajo Nation’s relationship with the United States through its treaties and with respect to water resources. The opinion also acknowledged and highlighted the importance of water for “healthy human societies” and the correlation between Navajo Nation’s water insecurity and the “exacerbation of the risks from COVID-19.”
The Petition by State Intervenors and the United States for rehearing en banc before the full Ninth Circuit Court of Appeals was denied by the panel. Both the federal defendants and the state intervenors then filed petitions to the United States Supreme Court for certiorari. On November 4, 2022, the Court granted certiorari to both petitions—one by the United States, and another by state and non-Indian water user intervenor-appellants—and consolidated its review of the Ninth Circuit decision favoring the Navajo Nation in Navajo Nation v. Department of Interior.
IV. The Case Before the United States Supreme Court
The Court granted certiorari with respect to two distinct questions: (1) whether allowing the Nation to proceed with its claims would violate the Court’s retained exclusive jurisdiction in Arizona v. California; and (2) whether the Nation could state a cognizable breach of trust claim against the federal trustee based on unquantified implied water rights, consistent with prior precedent on tribal claims for breach of trust.
Briefing was completed on March 3, 2023. Nine briefs by amici curiae were submitted in support of the Nation; two amici curiae filed briefs in support of the federal and state petitioners. The Court heard oral arguments on March 20, 2023. Arguments were presented by attorneys for the United States, the State of Arizona, and the Navajo Nation. The Justices’ question topics ranged from the Nation’s treaties with the United States, and the extent of the federal government’s obligations under those treaties, to the Winters Doctrine recognizing implied water rights on establishment of a Reservation, the drought and water shortages plaguing the American Southwest, and the Law of the River’s reach with respect to questions pertaining to the waters of the Colorado River.
V. Review of the Court’s Decision
The Court issued its decision on June 22, 2023, ruling largely in favor of the federal government, holding that, absent specific language establishing an enforceable duty on the United States in a statute, agreement, or similar pronouncement, the trust doctrine by itself does not provide a cause of action for any form of relief. The Court then declined to rule on the remaining question of whether its reservation of exclusive jurisdiction over allocations of Lower Colorado River water in Arizona v. California barred the Nation’s complaint from being heard by the lower court. Justice Thomas wrote a concurring opinion, expressing his continued concerns about the federal government’s trust relationship with Indian tribes, characterizing it as “an additional and troubling aspect of this suit.” Justice Gorsuch wrote a lengthy dissent, joined by Justices Sotomayor, Kagan, and Jackson, offering a more detailed account and analysis of the relevant history, providing critical context surrounding the 1868 Treaty, and underscoring the “many steps the Navajo took to avoid this litigation.”
While the Court declined to recognize an enforceable trust duty in relation to an implied right stemming from the Nation’s Treaty with the United States, it also left little doubt that the Nation has rights to water sufficient to fulfill the purposes of its reservation. Indeed, the Court’s favorable discussion of tribal water rights, as recognized by the Winters Court over a century ago, indicates that the Navajo Nation’s water rights and the legal doctrine on which they are based are strong but that a different approach to asserting and defending them must be pursued. At the same time, the Court’s treatment of the federal trust doctrine is less favorable and may have broader implications on water rights litigation and settlement negotiations beyond the Navajo Nation. However, it seems clear that the Tribal Nations’ water rights, reserved through treaties and agreements with the United States, remain intact as a matter of law.
In its analysis of the legal questions in the case, the Court focused on the extent of the federal government’s trust responsibility in relation to implied rights stemming from the 1868 Treaty between the Navajo and the United States. This analysis rests on the Court’s initial assertion of a perspective grounded in dominance and colonization, with a corresponding attenuation of the Navajo Nation’s perspective and significance in broader history and geography. Indeed, the opinion’s first sentence sets the tone for what will be a difficult read from the perspective of tribal interests: “In 1848, the United States won the Mexican-American War and acquired vast new territory from Mexico in what would become the American West. The Navajos lived within a discrete portion of that expansive and newly American territory.” This opening is in stark contrast to the opening lines of another recent and contentious case pitting the historical claims of Tribal Nations against the interests of a State of the Union; in McGirt v. Oklahoma, the majority opinion began by centering the tribal experience: “On the far end of the Trail of Tears was a promise.” The McGirt opinion continues from that opening, which centers the perspective and expectation of the Tribal individual and the Tribal Nation of which he is a citizen, to decisively uphold their legal position with respect to the ongoing legal viability and significance of the territorial limits memorialized in its treaties with the United States. The framing of history and historical events and relationships often holds determinative significance in cases such as these.
In its analysis of history, the Arizona v. Navajo Nation majority frames the request for relief as one for “affirmative steps”; indeed, the majority uses that characterization eighteen times within its brief thirteen-page opinion. Because the relief sought is equitable, this choice is significant. The first question presented turns on the extent of the federal government’s trust responsibility to Tribal Nations. Can Tribal Nations rely on the trust responsibility to compel the federal trustee to do what is needed to protect the Tribal Nations’ interests—in this case, to ensure that their homeland, reserved by treaty, meets and fulfills its purpose? The majority of the Court determined that they cannot. To come to that conclusion, the Court cited to and extended the holdings of earlier trust doctrine cases limiting the federal government’s liability for monetary damages in claims brought for lapses in its responsibilities in the role of trustee. The requirement that “the Federal Government must expressly accept trust responsibilities in a treaty, statute, or regulation that contains rights-creating or duty-imposing language” now extends, under this decision, to claims for equitable enforcement of the federal trust responsibility, as well as claims for monetary damages.
This limitation on claims brought to enforce the federal trust responsibility is best understood in factual context within the Court’s extensive trust doctrine jurisprudence. Critically, the Court notes “the zero-sum reality of water in the West” in its analysis of the first question presented. The role of courts in interpreting law, according to the majority in Arizona v. Navajo Nation, is confined to “text and history, leaving to Congress and the President the responsibility to enact appropriations laws and to otherwise update federal law as they see fit in light of the competing contemporary needs for water.” The reminders the Court provides in this passage of the opinion recall, with unmistakable significance, the location of this particular conflict—the Lower Colorado River Basin in the State of Arizona.
VI. Conclusion
Conflicts over water in the arid and over-appropriated American Southwest are not a new phenomenon, and the United States Supreme Court is well aware of long-standing water disputes in the region, involving many competing stakeholders and interests. Tribal Nations’ water rights, as well as the compelling and unmet needs for water in Indian Country, are unchanged by the Court’s decision in Arizona v. Navajo Nation. The case illustrates the difficulties that Tribal Nations face when trying to address historical exclusion from infrastructure funding, from policy making positions and forums, and ultimately from water allocation and delivery. However, it is equally apparent that the sovereigns with the longest relationships to Western resources, habitats, and landscapes are critical to the reform of water resource management and decision making.
The key to understanding and honoring the potential impact of the water rights of Tribal Nations in Arizona and elsewhere is communication and respect. For too long, Tribal Nations, including the Navajo Nation, were excluded from key decision-making processes, including the crafting and establishment of drought response requirements and procedures in the lower Colorado River Basin. In recent years, tribal leaders and tribal water users have increasingly assumed their rightful roles in managing the rivers and waters that they and their ancestors have managed and relied on for millenia. The Tribes’ strong legal rights to the water that they need to support their lands and lifeways are buoyed by their unbending moral and spiritual traditions of respect and sustainability, which underlie every decision made about a critical resource such as water. The roles of Tribal Nations in identifying viable paths towards secure and sustainable water futures for all cannot be disregarded and, if respected and supported, hold the potential to benefit us all. It need not be the zero-sum reality contemplated by the Court in Arizona v. Navajo Nation.