Arizona v. Navajo Nation: A SCOTUS Review

By: Reva Patel

On March 20, 2023, a U.S. Supreme Court oral argument was heard for the case of
Arizona v. The Navajo Nation. This case was appealed and brought by the lower court of the
United States Court of Appeals for the Ninth Circuit.
The Court was headed by Chief Justice John G. Roberts Jr. Roberts, who was born in
Buffalo, New York on January 27, 1955. He moved to Indiana in 1959 and performed well in
school and participated in many extracurriculars. He completed his undergraduate degree at
Harvard University and graduated summa cum laude in three years. He discovered his passion
for law when he attended Harvard Law. There, he graduated magna cum laude. Justice Roberts
clerked for Judge Henry Friendly and Supreme Court Justice William Rehnquist in 1980. He was
among the elite in the nation’s capital and eventually worked as an aide to the U.S. Attorney
General William French Smith. Following this, he served as an aide to the White House counsel
Fred Fielding, then an associate at Hogan & Hartson, followed by an appointment as Principal
Deputy Solicitor General by President George H.W. Bush. He returned to Hogan & Hartson,
where President George W. Bush then nominated him as a judge of the U.S. Court of Appeals. In
2005, President Bush had plans to nominate Justice Roberts to fill the seat of Justice Sandra Day
O’Connor, but when Chief Justice William Rehnquist died, he nominated Justice Roberts to
Chief Justice of the Supreme Court of the United States instead. The Senate liked him and
confirmed his nomination. He remains on the bench today as the Chief Justice of the United
States Supreme Court.
In the case of Arizona v. Navajo Nation, the type of action involved was an appeal based
on common law trust principles. The factual issues at stake start with the 1868 Treaty, which

established the Navajo Reservation as a “permanent home” to the nation, along with any
expansions formed by executive orders or congressional acts. This reservation is along the
Colorado River and lies within parts of Arizona, New Mexico, and Utah. Water has been scarce
in this area, so the federal government enacted treaties, regulations, Supreme Court decrees, and
more to allocate rights of the Colorado River. This is known as the “Law of the River.” In 2003,
the Navajo Nation brought a claim against the U.S. Department of Interior under the National
Environmental Policy Act, stating that there was a breach-of-trust. They claimed that their water
rights were not considered when usage of the Colorado River was divided and distributed.
Arizona, along with other parties, attempted to protect their own rights to the river. The District
Court found that the Supreme Court maintained original jurisdiction over the distribution of
rights of the Colorado River. The U.S. Court of Appeals for the Ninth Circuit reversed this
decision. Additionally, the 1868 Treaty provisions were based on farming, providing agriculture,
and seed implements for the specific area in which the reservation lies. The treaty also states for
up to three years and for a specific amount of money each year, these provisions are valid.
The legal issues at stake involved the extent to which the United States owes the Navajo
Nation affirmative duty to secure their needs to the Colorado River. These issues also question
how involved the federal government should be in developing a plan to meet the Navajos’ needs
and carrying out such a plan. Additionally, there are concerns as to if the rights to water of the
Navajo are implicit in the treaty or not, and if the treaty conveys a promise for water given that it
ensures a “permanent home.”
The argument raised by the petitioner representing the Federal government was that the
rights to water by the Navajo Nation are not enforceable by the United States. The U.S.
Government stated that they would not interfere with the ability of the Navajo Nation to obtain

water but they would also not assist them, as they claimed to not have promised such a deed.
According to the federal government, the permanent homeland language of the treaty does not
convey any duty to bring water when there is no water. The petitioner claims that the 1868
Treaty provides the Navajos with rights to their property that they can use but it does not impose
any additional duties on the government. Additionally, this party argues that the government and
third parties cannot interfere with water on the land and the tribe can engage in full self-help to
develop its own system to ensure they have a supply of water. The petitioner also brings up the
case of Winters Rights, which, based on the Winters Doctrine of 1908, provides water for Native
American tribes that are in need of it and live on federally reserved land. The petitioner argues
that the Navajo Nation did not have Winters Rights and nothing is stopping them from
intervening and seeking out their own Winters Rights.
The respondent representing the Navajo Nation argues that the United States essentially
promised them a permanent homeland with the 1868 Treaty and thus an implicit promise to
water was made in order to survive in the arid southwest. They argue that the treaty was a
specific source of law that distributed rights to water for the Navajos and imposed duties on the
government to secure this water. The treaty additionally ensures a permanent home for the
Navajos to carry out agricultural duties but this cannot be accomplished without water to
maintain crops and animals. The respondents claim the need to water did not need to be spelled
out in the treaty because it is an essential component of fulfilling the agreements contained in the
treaty. They also argue that the United States controls Winters Rights and has blocked the
Navajos from asserting these rights for themselves. The Navajo Nation argues that, under
Winters Rights, the government needs to ensure access to sufficient water from sources near the
reservation. They desire that the government assess how much water the nation needs and to

create a plan as to how it will be made available to them. The respondent believes that the two
parties could consult and, eventually, the plan can be implemented by the United States.
The attorney representing the state of Arizona argues that when the federal government
sets aside land for Indian reservations, they intend to preserve sufficient water to meet the
purpose of reservation. However, this is only an intent and there is no duty of the federal
government to do this. They also state that the Navajos cannot have the right to the Colorado
River until they attend court and receive an adjudicated right. The state believes that this case is
not solely a breach-of-trust but is also a jurisdictional case as the Colorado River has been the
only source of water identified in 20 years.
The court ruled in a 5-4 decision that the 1868 Treaty establishing the Navajo
Reservation did not require the United States to take affirmative steps in order to secure water for
the tribe. A concurring opinion authored by Justice Clarence Thomas was made along with a
dissenting opinion by Justices Neil Gorsuch, Sonia Sotomayer, Elena Kagan, and Ketanji Brown
Jackson. The court’s legal findings found that for a successful breach-of-trust claim, the claim
needs to establish that the text of the treaty, statute, or regulation imposed duties on the United
States. The 1868 Treaty did not accomplish this as it did not mention any affirmative duty of the
United States to secure water for the Navajo tribe. Therefore, there was no breach-of-trust. The
Court also refused to infer any duties of water security in the treaty. It found that the federal
government can only sustain an obligation to an Indian tribe if it “expressly accepts” that duty in
a treaty. The court’s factual findings were that the treaty imposed specific duties on the United
States but did not say anything on a duty to secure water. The treaty only states that the
government must build schools and chapels, provide teachers, and supply seeds and agricultural
implements. The treaty was only to help ensure the Navajos could return to their original land

and the record of treaty negotiations never mentioned water-related obligations of the
government or the agreement of the government to do so.
The role of the justices was to interrogate the legal and factual concerns of each party in
order to come to a final decision on the case. They had the job of obtaining as much information
from the past and present while considering future implications of the case to make a decision
between the two opposing interests. They asked questions, voiced their concerns, and made sure
they understood the attorneys well in order to accomplish this. They are the final decision-
makers on this case and thus the outcome is very important. The role of the petitioner attorney on
behalf of the Federal parties was to argue that the appeals court judgment should be reversed.
This party had the role of effectively arguing that the United States does not have a duty under
the 1868 Treaty to secure water for the Navajo Nation to the justices. They had to get the most
justices on the panel to agree with this The role of the attorney on behalf of the State parties was
to specifically represent the concerns and perspective of the state of Arizona. Although this case
is between the Federal government and the Navajo Nation, the reservation and water resources in
question are based in Arizona. Thus, the outcomes of this case can impact the state’s citizens. An
advocate for Arizona citizens is needed in order to voice the state’s concerns and to assert that
their interests are also being represented. The role of the respondent attorney and appellate
advocate on behalf of the Navajo Nation was to maintain the appeals court decision. They had to
argue that the 1868 Treaty implied that the United States had a duty to secure water for the
Navajo tribe and that they failed to execute this promise. This party also had the goal of
prompting the federal government to plan on how to secure their rights to sources of water and to
eventually integrate such a plan.

The attorneys behaved respectfully, listening to the justices whenever they spoke and
taking into account their questions and statements. They remained respectful and collected
throughout the entire hearing. The justices were also very well-mannered and calm. When a
justice asked a question or voiced a concern, they made sure not to argue with the attorney. Their
interactions were very smooth. The attorneys would open with their statements and then allow
the justices to ask questions. The justices would then state their own opinions and ask for
additional information from the attorneys. Attorneys had the chance to respond, and this back
and forth would continue. There were no disruptions and every actor was able to effectively
voice their opinions.

References:

Arizona v. Navajo Nation. (n.d.). Oyez. Retrieved December 8, 2023, from
https://www.oyez.org/cases/2022/21-1484

Image: https://navajotimes.com/reznews/arizona-v-navajo-nation-which-gets-the-water/