The Supreme Court Decision in Arizona v. Navajo Nation

Attorney Jeffrey Nelson

The Supreme Court recently issued one of its more frightening Indian law decisions in Arizona v. Navajo Nation. The decision holds that the although the Navajo Nation Treaty of 1868 reserved the necessary water to accomplish the purposes of the Nation and the United States in creating the Navajo Reservation, it does not require the United States to take “affirmative steps” to secure the water reserved by the Treaty so that the Nation can use that water to fulfill those purposes.

This decision has implications for all tribes. If followed by the lower courts and the Supreme Court itself in future decisions, it will reduce the United States’ trust responsibility to a heartwarming but totally meaningless cliché.

The Court was concerned that if the government had a duty to help the Nation secure its treaty-guaranteed water rights, the Nation would then call on the U.S. “to farm the land, mine the minerals, or harvest the timber on the reservation.” The federal trust responsibility does not involve the Government in such matters, and no tribe expects the U.S. to tend to the day-to-day management of its reservation. What tribes do expect is that the Government will be an advocate in litigation and other contexts to protect tribal land and natural resources, and to protect their sovereignty and right to self-government when threatened by those who try to take control of tribal resources or limit tribal sovereignty. 

The caselaw is filled with examples in which the U.S. has either initiated or joined in litigation started by a tribe to protect tribal rights and resources. The Winters case, the case from which the Winters Doctrine of reserved treaty water rights derives its name, is a prime example of the U.S. fulfilling its trust responsibility to protect tribal treaty rights. The fishing rights decisions in United States v. Winans, United States v. Michigan and United States v. Washington are also important examples of the Government acting pursuant to its trust responsibility to assert and secure tribal treaty rights. 

Justice Gorsuch’s dissenting opinion tells us that the Government acknowledges that it holds water rights in trust for the Nation, and from that concession, we can hope that the Government is not trying to wash its hands of its trust responsibilities to all tribes. Despite cases like Winters and Winans, the U.S. often fails to act as a trustee at all or performs its duties in less than “the most exacting fiduciary standards” required by the caselaw.

The sad story of the Navajo Nation’s experience in securing their water rights told by Justice Gorsuch in his dissent proves this point only too well, but tribes cannot give up on demanding that the Government live up to its trust obligations. This involves determination and persistence, and it also requires knowledge and skill, particularly in knowing how to communicate with the Bureau of Indian Affairs, the BIA’s attorneys in the Solicitor’s Office and the attorneys at the U.S. Department of Justice. 

That is where the attorneys at mctlaw come in. Through serving in the Office of the Solicitor at the Department of the Interior and in the General Counsel’s Office at the National Indian Gaming Commission, our attorneys have experience in communicating with federal officials and attorneys about the fulfillment of the trust responsibility, including the drafting of litigation requests asking the Government to initiate lawsuits or join tribal lawsuits.  If your tribe needs assistance in getting the Government to live up to its trust responsibilities, please give the attorneys at mctlaw a call.

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