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On Thursday, June 22, 2023, the Supreme Court of the United States issued its聽Arizona v. Navajo Nation聽. The Court determined the United States has a trust relationship with the Navajo Nation, but the United States does not need to take affirmative steps to secure water for the Nation. To reach this conclusion, the Court analyzed the 1868 Treaty between the United States and the Navajo Nation. Since nothing in the Treaty suggested or required the United States to take any specific or affirmative actions relating to water, the United States does not have a duty to act affirmatively to secure the Nation鈥檚 water rights. Water Fellow Frannie Monasterio summarizes the majority and dissent opinions and briefly reviews the challenges the Navajo Nation face in securing their water rights in the Colorado River.

Earlier this year, Monasterio collaborated with four other attorneys (Elizabeth G. Bentley, Elisabeth Parker, Clifford B. Parkinson, and聽Heather Tanana) on an聽聽to the Supreme Court filed on behalf of DigDeep and the Utah Tribal Relief Foundation.

The Navajo Reservation is the largest in the United States. Even though the Reservation is adjacent to the Colorado River, water remains scarce because of the 鈥渢he Law of the River,鈥� a complex mix of international law, interstate water compacts, case law, and other legal instruments and elements. See Jason Anthony Robison, The Colorado River Revised, 88 Colo. L. Rev. 475, 500鈥�43 (2017). Under this body of law, water cannot be lawfully withdrawn from the Colorado River without an adjudicated water right.

Adjudicating water rights is a challenging, often a decades-long, multi-party process. This is in part because the instrument determining how water is allocated in the Colorado River Basin鈥攖he Colorado River Compact鈥攍argely ignored Native Americans during the Compact鈥檚 negotiation process. See Colorado River Compact, 1923 Colo. Sess. Laws 684, Colo. Rev. Stat. 搂 37-61-101 to - 104 (2016); Amy Cordalis & Daniel Cordalis, Indian Water Rights: How Arizona v. California Left an Unwanted Cloud Over the Colorado River Basin, 5 Ariz. J. Envtl. L. & Pol鈥檡 333, 341 (2014). As a result, the water rights of several Native American Tribes, including the Navajo Nation of Arizona, remains unsettled. Id. at 357. The compounding complexity of settling these water rights remains; as one water rights case (if ever) is adjudicated, it influences however much water other water rights holders may withdraw from the Colorado River.

Exacerbating this failure to account for tribal water rights is the fact that there simply is not enough water to go around. In the wake of climate change, water is becoming increasingly scarce in the already arid, water-hungry west. Since the Compact鈥檚 original 1922 signing, all Compact States, which includes Wyoming, Colorado, Nevada, New Mexico, Utah, California, and Arizona, have experienced incredible population growth. Nevada鈥檚 growth rate, for example, was 548% between 1966 and 2015. The Colorado River Revised, supra, at 492. Water demand has, accordingly, increased among these states. At the same time, the west is becoming increasingly dry. See e.g., Jonathan T. Overpeck & Bradley Udall, Climate Change and the Aridification of North America (2020), .

In January 2019, the Navajo Nation filed suit in the federal district court of Arizona to compel the United States 鈥渢o determine the water required to meet the needs of the Nation鈥檚 lands in Arizona.鈥� Joint Appendix at 86; see also Treaty Between the United States of America and the Navajo Tribe of Indians, June 1, 1868, Art. XIII (鈥�1868 Treaty鈥�). Further, the Nation asked that if the United States is interfering with the Tribe鈥檚 water rights, that they then 鈥渄evise a plan鈥� overcome this interference. Joint Appendix at 86, 138, 139, Arizona v. Navajo Nation (U.S. 2023) (No. 21-1484) (鈥淛oint Appendix鈥�). This case was decades in the making, beginning in 2003, and included years-long attempts at failed negotiations. Navajo Nation v. U.S. Dep't of the Interior, 26 F.4th 794, 799 (9th Cir. 2022); Navajo Nation v. United States Dep't of Interior, No. CV-03-00507-PCT-GMS, 2018 WL 6506957 at *1, (D. Dec. Dec. 11, 2018).

Majority Summary

The majority opinion, written by Justice Kavanaugh and joined by Justices Roberts, Thomas, Alito, and Barret, determined that the Navajo Nation failed to state a breach of trust claim based on the 1868 Treaty establishing the Navajo Nation Reservation. Despite its trust responsibility towards Native Americans, the United States was not obliged to 鈥渢ake affirmative steps to secure water for the Navajo鈥� Nation. Arizona v. Navajo Nation, No. 21-1484 (U.S. June 22, 2023), 2023 WL 4110231, at *6 (鈥淒ecision鈥�).

Generally, trust responsibilities are created by a trust instrument鈥攗sually a document such as a will, deed, or agreement鈥攁nd involve a trustee, a beneficiary, and a property interest. A trustee holds title of the property for another鈥檚 benefit. A beneficiary is the party 鈥渇or whose benefit the property鈥� is held. 鈥淭he trust instrument defines the specific duties of the trustee.鈥� Ann C. Juliano, Conflicted Justice: The Department of Justice鈥檚 Conflict of Interest In Representing Native American Tribes, 37 Ga. L. Rev. 1307, 1311鈥�12 (2003) (footnotes omitted). The relationship is fiduciary in nature, and accordingly 鈥渢he law demands an exceptionally high standard of moral conduct from the trustee towards the beneficiary.鈥� Id. at 1312 (citing George Gleason Bogert et al., Bogert鈥檚 Trusts and Trustees 搂 1, at 10 (2d ed. 1984)). 聽For example, 鈥淸a] trustee can breach her fiduciary duty by failing to protect and preserve the trust property.鈥� Conflicted Justice, supra, at 1314.

The majority agrees that the 鈥淯nited States maintains a general trust relationship with Indian tribes, including the Navajos.鈥� Decision at *6. The trust document is the Treaty of 1868, the trustee is the United States, and the beneficiary is the Navajo Nation. Id. The property interest is water rights in the lower Colorado River under the Winters doctrine, which established that when the U.S. reserves land for Native Americans, it also reserves enough water to fulfill the purposes contemplated by that reservation. Decision at *3; Winters v. United States, 207 U.S. 564, 576鈥�77 (1908).

Despite this trust relationship, the fiduciary duty usually owed to a beneficiary does not apply to the United States because, as the Court reasons, the United States is a sovereign. As a sovereign, rather than following common law equitable principles of trust relationships, all trust obligations are determined by Congress and/or the President. Thus, unless Congress explicitly creates 鈥渁 conventional trust relationship with a tribe as to a particular trust asset,鈥� common law trust principles do not apply 鈥渢o infer duties not found in the text of a treaty, statute, or regulation.鈥� Decision at *6 (citing United States v. Jicarilla Apache Nation, 564 U.S. 162, 178 (2011)). Congress or the President can, then, 鈥渃reat[e] a trust relationship that is .聽.聽. bare compared to a trust relationship between private parties.鈥� Decision at *6 (citing Jicarilla, 563 U.S. at 179). Such was the case here: Of the actions or responsibilities of the United States listed by the 1868 Treaty, nothing 鈥渆stablishes a conventional trust relationship with respect to water.鈥� Decision at *6. Accordingly, 鈥渢he 1868 treaty did not impose a duty .聽.聽. to take affirmative steps to secure water,鈥� including the Navajos requested relief of 鈥渄etermining the water needs of the Tribe, providing an accounting, or developing a plan to secure the needed water.鈥� Id.

Dissent Summary

The dissent opinion, written by Justice Gorsuch and joined by Justices Sotomayor, Kagan, and Jackson would have allowed the Nation鈥檚 breach of trust claim to proceed. Decision at *10. Justice Gorsuch writes that the majority neglected at least three things necessary to the understanding of this case: The history behind between the Navajo Nation United States that led to the 1868 Treaty, the discussions surrounding the 1868 Treaty itself, and 鈥渁n appreciation of the many steps the Navajo took to avoid this litigation.鈥� Id.

After establishing the history surrounding the 1868 Treaty, the dissent explained the law surrounding treaties as it applies to Native Americans. Treaties are like contracts between two sovereign nations. Decision at *15 (citing Washington v. Wash. State Commercial Passenger Fishing Vessel Ass鈥檔, 443 U.S. 658, 675 (1979)). Courts thus apply principles of contract interpretation to clarify treaty terms. Decision at *15. Among other principles, contracts are read in favor of the non-drafting party. Id. This has been especially true where Native Americans are a treaty party. Furthermore, Courts often look 鈥渢o the larger context that frames鈥� a treaty, including the history surrounding the treaty, when clarifying treaty terms. Id. at 16 (citing Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196 (1999)). The dissent also notes that additional responsibilities apply 鈥渙n contracts made between parties sharing a fiduciary relationship, given the risk the fiduciary will (intentionally or otherwise) 鈥榤isuse鈥� its position of trust.鈥� Decision at *15.

The dissent agrees with the majority that these responsibilities come from some positive law such as a treaty, statute, or regulation. Decision at *15; see U.S. v. Navajo Nation, 537 U.S. 488 (2003); Jicarilla, 564 U.S. at 197. Unlike the majority, however, the dissent noted that the United States does have a fiduciary duty with respect to the water rights it holds for Native Americans, as shown both by its conduct and the extent of control the United States has over water resources. Decision at *15, *17, *18

Since there is a fiduciary relationship, certain fiduciary duties 鈥渁ttach to decisions that involve managing the assets and distributing the property of others.鈥� Decision at *17 (citing Pegram v. Herdrich, 530 U.S. 211, 231 (2000) (quotation and alteration marks omitted)). 鈥淚t follows, then, that a Tribe may bring an action in equity against the United States for failing to provide an accurate accounting of the water rights it holds on a Tribe鈥檚 behalf.鈥� Decision at *17 (citing United States v. Tohono O鈥檕dham Nation, 563 U.S. 307, 318 (2011) (quotation and alteration marks omitted)).

The majority had expressed concern that if the 1868 Treaty imposed 鈥渨ater related responsibilities to the Tribe,鈥� the United States may also be required to 鈥渇arm land, mine minerals, harvest timber,鈥� and other actions related to those explicitly contemplated by the 1868 Treaty. Decision at pdf page 21; see e.g., 1868 Treaty, Art. III. While counsel for the Navajo Nation would not disavow the potential of the government to build any water services infrastructure (Decision at pdf page 9 (citing Tr. Of Oral Arg. 102)), the complaint itself does not list as a form of relief that the United States build infrastructure. Joint Appendix 138鈥�39. The majority has, according to the dissent, 鈥渕istaken the nature of the Navajo鈥檚 complaint.鈥� Decision at *19. The Navajo Nation is 鈥淸a]sking the federal government to assess what it holds in trust and to ensure that it is not misappropriating water that belongs to the Tribes.鈥� Decision at *19. This ask 鈥渉as nothing to do with building鈥� infrastructure. Id.

Having misunderstood the nature of the Navajo Nation鈥檚 complaint, the majority proceeds 鈥渦nder the wrong legal framework.鈥� Decision at *19. According to the dissent, the majority鈥檚 analysis of the Nation鈥檚 complaint under the Tucker Act and Indian Tucker Act is inappropriate because the Nation is not 鈥渂ring[ing] a claim for money damages,鈥� but is requesting equitable relief 鈥渦nder other laws or treaties.鈥� Decision at *20. Indeed, claims by tribes under treaty provisions 鈥渢o enforce treaty obligations鈥攊ncluding water-related ones鈥� have gone forward. Decision at *20 (citing Pyramid Lake Paiute Tribes of Indians v. Morten, 354 F. Supp. 252, 256 (DC 1973)).

The majority then errs in its application of that incorrect framework to the Nation鈥檚 claim. Decision at *20. A claim for money damages under the Tucker Acts due to a breach of duties assumed via statutes and regulations can proceed where the government has control over a resource. Decision at *20. In such instances of control, the necessary fiduciary relationship that can give way to a breach of trust claim exists 鈥渆ven though nothing is said expressly about a trust or fiduciary connection.鈥� Decision at *20 (citing United States v. Mitchell, 463 U.S. 206, 225 (1983) (quotation marks omitted)). The dissent finds the United States 鈥渆xercises pervasive control over much water鈥� in the west, including the Colorado River. Decision at *18. Accordingly, the United States has a fiduciary duty relationship to the Nation with respect to water resources. Decision at *20鈥�21.

Challenges Navajo Nation Will Face in Securing Water Rights on the Little Colorado and Lower Colorado River

The Navajo Nation has tried to advocate on their own behalf in several instances. Featured at length in the dissent opinion is the case of Arizona v. California, wherein Arizona brought action against the State of California to determine its water rights in the Lower Colorado River Basin. 373 U.S. 546, 550鈥�51 (1963). There, the federal government initially claimed the need to protect the interests of several Native Indian tribes, including those of the Navajo Nation. Decision at *13. As litigation continued, however, the Navajo Nation, along with other Native American Tribes, sought leave to file a motion to determine the United States鈥� scope of representation of the Tribes. The Navajo Nation also 鈥渙bject[ed] to what they considered a 鈥榣ack of effective representation and [a] conflict of interest.鈥欌�� Decision at *13 (second alteration in original). The Supreme Court denied that motion. Id.

The Court later referred that case to a Special Master, who in turn, prepared recommendations for how the Court should proceed. The recommendations were silent on the Navajo Nation. The Navajo Nation then wrote to the Attorney General, requesting the United States to object the recommendations. Decision at *14. 鈥淭he Navajo say they never received a response.鈥� Id. Throughout that case, the Nation continued its attempts to advocate on its own behalf. These attempts were either opposed by the United States and/or denied by the Court. Id. When the Supreme Court finally issued its decree for the case in 1964, the Nation鈥檚 rights went undetermined. Id. The decree has been modified several times since 1964, but 鈥渉as never been modified to address the Navajo.鈥� Id.

The Justices do not deny that the 1868 Treaty reserves water rights for the Navajo Nation under the Winters doctrine, but their decision does little to adjudicate the Nation鈥檚 water. The Nation continues its other efforts to secure water rights; 鈥淣avajo Nation President Buu Nygren said the tribe established a water rights negotiation team earlier this year and is 鈥榳orking very hard to settle [their] water rights in Arizona.鈥欌�� Crysal Owens, Navajo Will Continue to Seek Water Rights Despite Ruling, Law360 (June 23, 2023; 4:35PM ET), .

In previous Winters rights adjudication, Courts quantified water rights by measuring a reservation鈥檚 practicably irrigable acreage (鈥淧IA鈥�)鈥攖he number of acres on a reservation that was 鈥渟usceptible to sustained irrigation at reasonable costs鈥濃�攚hen the purpose of a Native American reservation is agricultural. See e.g., In re The General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76, 99, 101 (1988) (鈥淏ig Horn鈥�). See also Arizona v. California, 373 U.S. at 600. To 聽determine the reservation鈥檚 purpose, courts analyzed the treaty establishing the reservation. Thus, in Big Horn, the Supreme Court of Wyoming analyzed the United States鈥� Treaty with the Eastern Band of Shoshone Indians and Bannack Tribe of Indians and determined that agriculture was the purpose of the Wind River Indian Reservation because several Treaty provisions encouraged agricultural pursuits. Big Horn, 753 P.2d at 95鈥�98; see e.g., Treaty Between the United States of America and the Eastern Band Shoshoni and Bannock July 3, 1868, Art. VI (providing that tribal members who want to farm 鈥渉ave the privilege to select .聽.聽. a tract of land within the reservation .聽.聽. [and] may be occupied and held .聽.聽. so long as he or they may continue to cultivate it鈥�).

The purpose of the Navajo Reservation has not yet been analyzed by the courts, but if the Navajo Nation could secure water rights, quantifying them by measuring the reservation鈥檚 PIA may pose a big issue. Determining the Navajo Reservation as having an agricultural purpose would not be unreasonable; the 1868 Treaty includes provisions echoing almost some of the language in the Treaty Between United States鈥� Treaty and the Eastern Band of Shoshoni and Bannock. See e.g., 1868 Treaty Art. VIII. However, draft opinions reveal the Supreme Court actually rejected the PIA approach for quantification. The Court ultimately affirmed the Supreme Court of Wyoming鈥檚 decision to apply the PIA standards in a 4-4 decision, when Justice O鈥機onnor 鈥渟uddenly recused herself from the case the day before the opinion was to be released, leaving the eight remaining members of the Court equally divided鈥� and simply affirming the Supreme Court of Wyoming鈥檚 decision with no additional analysis. David H. Getches, Conquering Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 Cali. L. Rev. 1573, 1640鈥�41 (1996).

Access to water for the Navajo Nation remains dire. 鈥淚n some parts of the reservation, as much as 91% of Navajo households 鈥榣ack access to water.鈥欌�� Decision at *13. While Congress appropriated an unprecedented level of funds towards water services infrastructure through the Inflation Reduction Act and Bipartisan Infrastructure Law, it remains to be seen whether this will be sufficient to ensure access to water by the Navajo Nation.