# Arizona v. Navajo Nation

Arizona v. Navajo Nation, 599 U.S. 555 (2023), was a United States Supreme Court case which determined that the Treaty of Bosque Redondo did not require the U.S. Government to take affirmative steps to secure water for the Navajo Nation.

## Background

Following conflicts between the Navajo and U.S. forces, roughly eight to ten thousand Navajo were forced to relocate to the Bosque Redondo Reservation in what became known as "The Long Walk".$^{:38}$$^{:364}$ The Reservation land provided by the U.S. Government and established to be a "permanent home" saw itself to be very inhospitable to the native populace whose agricultural possibilities were heavily limited by the land's poor soil quality, resulting in a sharp decline in the total Navajo population of the new residents. To aid in both the assimilation of the native peoples and to assist in the ability of the Navajo to adapt to their new home, the Treaty of Bosque Redondo was provided which, in exchange for the renouncement of all claims outside the reservation and federal education of native children, saw federal assistance and aid to allow for agricultural cultivation alongside monetary compensation for labor.
Later Supreme Court cases such as Winters v. United States would go on to assert that treaties establishing reservations must be construed with enough water to establish a homeland. Water claims would further be noted upon in United States v. Jicarilla Apache Nation which stated that Tribal Nations suing the Federal Government for a breach of trust must point to explicit language within their treaty asserting such a breach. Following historic water crises in the Southwest United States, The Navajo Nation looked towards the water rights principles of Winters as a way to mitigate their water scarcity. The Nation would go on to argue that given the reservation was intended to be a "permanent home" for the Navajo people the Federal Government is compelled to take "affirmative steps" to secure needed water for the tribe in terms of assessing tribal water needs, developing plans to secure water, and potentially constructing water infrastructure. The states of Arizona, Colorado, and Nevada intervened against the Navajo Nation in their suit against the U.S. Government in order to protect their State interests over the Colorado River. The United States District Court for the District of Arizona initially dismissed the Navajo Tribe's complaint, however, upon appeal to the Ninth Circuit Court of Appeals the lower court's decision was reversed, ultimately siding in favor of the Navajo Nation.

## Supreme Court

Oral arguments were heard on March 20, 2023, with the States represented by Rita P. Maguire. The Federal Government argued alongside the state interests with Assistant to the Solicitor General Frederick Liu framing the issue as a matter of property rights; arguing that the treaty establishing the Navajo Reservation established rights to the land's resources with each property right acting as a “stick in the bundle of property rights that make up a reservation”. In addition, he also emphasized that the treaty must explicitly acknowledge the Federal Governments place to do more than recognize water rights if it wishes for the Federal Government to intervene in providing water guarantees. Shay Dvoretzky argued for the Navajo Nation asserting that the context of the treaty established a relationship between the tribe and Government as a 'duty of protection' within the general trust relationship while emphasizing the canons of construing Indian treaties, which requires the judiciary to interpret treaty language as tribal treaty negotiators would have understood it.

### Majority

The 5–4 majority opinion, written by Justice Brett Kavanaugh was joined by Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett. Siding in favor of the states, Justice Kavanaugh argued that the treaties were stipulations of property rights rather than obligations of the Federal Government to fulfill any proposed purposes of said treaty. Additionally, Kavanaugh noted that the U.S. Government would owe no obligation to assist in these requests by the Tribes unless the tribal requests are explicitly stated within the treaty itself.

### Concurrence

Justice Clarence Thomas, joining the majority opinion in full, offered a separate concurrence in which he suggested revisiting prior cases recognizing the canons of construction of Indian treaties and stating that prior court cases had "blurred the lines between the political branches’ general moral obligations to Indians".

### Dissent

Justice Neil Gorsuch wrote the dissenting opinion joined by Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson. The opinion highlighted the historical context of the forced relocation of the Navajo people alongside the cannons of construction stating how the 1868 treaty would ultimately allow for adequate resources for them to build a homeland. Additionally, the opinion stipulated that the Government acting out affirmative steps to secure water for the Nation would be a fulfillment of the Treaty's purpose while highlighting the 'fiduciary' duty of the Government in doing so. To highlight this perceived lack of Governmental discretion, Gorsuch referred to U.S. refusal to fulfill the Treaty's promises as having been around since 'Elvis was still making his rounds on The Ed Sullivan Show' while offering suggestions on how the Navajo Nation might be able to litigate future treaty rights over waters of the Colorado River.