Continuing Challenges in the Wake of the Supreme Court’s Arizona v. Navajo Nation Decision

by Frannie Monasterio

On Thursday, June 22, 2023, the Supreme Court of the United States issued its Arizona v. Navajo Nation decision. 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’s 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, Frannie collaborated with four other attorneys (Elizabeth G. Bentley, Elisabeth Parker, Clifford B. Parkinson, and Heather Tanana) on an amicus brief 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 “the Law of the River,” 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, 500–43 (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 Under this body of law, water cannot be lawfully withdrawn from the Colorado River without an adjudicated water right.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—the Colorado River Compact—largely ignored Native Americans during the Compact’s negotiation process. See Colorado River Compact, 1923 Colo. Sess. Laws 684, Colo. Rev. Stat. § 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’y 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’s original 1922 signing, all Compact States, which includes Wyoming, Colorado, Nevada, New Mexico, Utah, California, and Arizona, have experienced incredible population growth. Nevada’s 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), /pnas.2006323117.

In January 2019, the Navajo Nation filed suit in the federal district court of Arizona to compel the United States “to determine the water required to meet the needs of the Nation’s lands in Arizona.” Joint Appendix at 86; see also Treaty Between the United States of America and the Navajo Tribe of Indians, June 1, 1868, Art. XIII (“1868 Treaty”). Further, the Nation asked that if the United States is interfering with the Tribe’s water rights, that they then “devise a plan” overcome this interference. Joint Appendix at 86, 138, 139, Arizona v. Navajo Nation (U.S. 2023) (No. 21-1484) (“Joint Appendix”). 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 “take affirmative steps to secure water for the Navajo” Nation. Arizona v. Navajo Nation, No. 21-1484 (U.S. June 22, 2023), 2023 WL 4110231, at *6 (“Decision”).

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

The majority agrees that the “United States maintains a general trust relationship with Indian tribes, including the Navajos.” 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, 576–77 (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 “a conventional trust relationship with a tribe as to a particular trust asset,” common law trust principles do not apply “to infer duties not found in the text of a treaty, statute, or regulation.” Decision at *6 (citing United States v. Jicarilla Apache Nation, 564 U.S. 162, 178 (2011)). Congress or the President can, then, “creat[e] a trust relationship that is . . . bare compared to a trust relationship between private parties.” 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 “establishes a conventional trust relationship with respect to water.” Decision at *6. Accordingly, “the 1868 treaty did not impose a duty . . . to take affirmative steps to secure water,” including the Navajos requested relief of “determining the water needs of the Tribe, providing an accounting, or developing a plan to secure the needed water.” Id.

Dissent Summary

The dissent opinion, written by Justice Gorsuch and joined by Justices Sotomayor, Kagan, and Jackson would have allowed the Nation’s 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 “an appreciation of the many steps the Navajo took to avoid this litigation.” 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’n, 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 “to the larger context that frames” 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 “on contracts made between parties sharing a fiduciary relationship, given the risk the fiduciary will (intentionally or otherwise) ‘misuse’ its position of trust.” 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 “attach to decisions that involve managing the assets and distributing the property of others.” Decision at *17 (citing Pegram v. Herdrich, 530 U.S. 211, 231 (2000) (quotation and alteration marks omitted)). “It 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’s behalf.” Decision at *17 (citing United States v. Tohono O’odham Nation, 563 U.S. 307, 318 (2011) (quotation and alteration marks omitted)).

The majority had expressed concern that if the 1868 Treaty imposed “water related responsibilities to the Tribe,” the United States may also be required to “farm land, mine minerals, harvest timber,” 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 138–39. The majority has, according to the dissent, “mistaken the nature of the Navajo’s complaint.” Decision at *19. The Navajo Nation is “[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.” Decision at *19. This ask “has nothing to do with building” infrastructure. Id.

Having misunderstood the nature of the Navajo Nation’s complaint, the majority proceeds “under the wrong legal framework.” Decision at *19. According to the dissent, the majority’s analysis of the Nation’s complaint under the Tucker Act and Indian Tucker Act is inappropriate because the Nation is not “bring[ing] a claim for money damages,” but is requesting equitable relief “under other laws or treaties.” Decision at *20. Indeed, claims by tribes under treaty provisions “to enforce treaty obligations—including water-related ones” 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’s 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 “even though nothing is said expressly about a trust or fiduciary connection.” Decision at *20 (citing United States v. Mitchell, 463 U.S. 206, 225 (1983) (quotation marks omitted)). The dissent finds the United States “exercises pervasive control over much water” 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 *20–21.

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, 550–51 (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’ scope of representation of the Tribes. The Navajo Nation also “object[ed] to what they considered a ‘lack of effective representation and [a] conflict of interest.’” 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. “The Navajo say they never received a response.” 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’s rights went undetermined. Id. The decree has been modified several times since 1964, but “has never been modified to address the Navajo.” 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’s water. The Nation continues its other efforts to secure water rights; “Navajo Nation President Buu Nygren said the tribe established a water rights negotiation team earlier this year and is ‘working very hard to settle [their] water rights in Arizona.’” 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’s practicably irrigable acreage (“PIA”)—the number of acres on a reservation that was “susceptible to sustained irrigation at reasonable costs”[1]—when 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) (“Big Horn”). See also Arizona v. California, 373 U.S. at 600. To  determine the reservation’s purpose, courts analyzed the treaty establishing the reservation. Thus, in Big Horn, the Supreme Court of Wyoming analyzed the United States’ 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 95–98; 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 “have the privilege to select . . . a tract of land within the reservation . . . [and] may be occupied and held . . . so long as he or they may continue to cultivate it”).

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’s 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’ 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’s decision to apply the PIA standards in a 4-4 decision, when Justice O’Connor “suddenly recused herself from the case the day before the opinion was to be released, leaving the eight remaining members of the Court equally divided” and simply affirming the Supreme Court of Wyoming’s 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, 1640–41 (1996).

Access to water for the Navajo Nation remains dire. “In some parts of the reservation, as much as 91% of Navajo households ‘lack access to water.’” 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.

[1] Determining those acres “involves a two-party analysis: “the PIA must be susceptible of sustained irrigation (not only proof of the arability but also of the engineering feasibility of irrigating the land) and irrigable “at reasonable cost.” Big Horn, 753 P.2 at 101.