SCOTUSblog by Matthew L.M. Fletcher 3/21/2022
What water the United States owes the Navajo Nation under the 1868 Treaty of Bosque Redondo formed the crux of the argument in Arizona v. Navajo Nation. The treaty, known by the Navajo people as the Naal Tsoos Sani, or the Old Paper, established the Navajo Reservation as a “permanent home” for the Nation. The justices on Monday wrestled with the scope of the government’s responsibility to ensure that the reserved land has enough water.
More than a century ago, the Supreme Court held in Winters v. United States that treaties establishing Indian reservations should be construed to include a right to enough water to establish a homeland. More recently, the court in United States v. Jicarilla Apache Nation held that a tribal nation suing the federal government for breach of trust must point to contract or treaty language explicitly establishing a right. These two precedents have come into conflict here.
The Supreme Court seemed evenly split at oral argument on Monday. Justices leaning toward the federal government and three western states worried that the Navajo Nation’s request for relief would upset the current allocation of the Colorado River water as the effects of a generation-long drought are being felt. Justices leaning toward the Nation pointed to the federal government’s assumption of control over tribal water rights as establishing an enforceable right. Justice Amy Coney Barrett seemed to be the deciding vote.
Attempting to avoid the default interpretative rules of Indian treaty construction, which strongly favor the Nation, Assistant to the Solicitor General Frederick Liu framed the issue as a matter of property, turning to the popular “bundle of sticks” theory of American property law. In the federal government’s view, the establishment of the Navajo Reservation created a bundle of property rights belonging to the Navajo Nation, including Winters rights. But, Liu said, the rights guaranteed under the treaty end there. From the government’s perspective, once the property rights are established, the Navajos are just like any other water user in the west. Even if there is not enough water, the United States has no obligation to provide water.
More:
https://www.scotusblog.com/2023/03/supreme-court-justices-appear-divided-over-navajo-nations-water-rights/
