SCOTUS Limits Scope of Duties Created by Agreement Between Native Tribe and Federal Government
On June 22, 2023, the Supreme Court of the United States (“SCOTUS”) held in a 5-4 opinion that an 1868 treaty between the United States and the Navajo Nation setting aside land for a reservation does not require the U.S. to secure water rights for the reservation. While the reservation is outside of California, SCOTUS’s decision lays the foundation for interpretation of existing and future agreements between the U.S. and Native tribes concerning water rights and other evolving policy issues.
In 1868, the U.S. and the Navajo Nation signed a treaty under which the U.S. agreed to set aside a new Navajo reservation, which spans over 17 million acres mostly within the Colorado River Basin, on which the reservation relies for its water supply. Over the past two decades, that water supply has become increasingly scarce.
The Navajo Nation sued the U.S. Department of the Interior, the Bureau of Indian Affairs, and other federal parties in Arizona federal court, alleging a breach-of-trust claim arising out of the 1868 treaty. It requested the court require the U.S. “to determine the water required to meet the needs” of the reservation and to “devise a plan to meet those needs.”
The district court dismissed the tribe’s complaint, finding the 1868 treaty did not impose a duty on the U.S. to take affirmative steps to secure water for the tribe, and the Ninth Circuit reversed. SCOTUS reversed the Ninth Circuit decision, finding the treaty “set apart a reservation for the use and occupation of the Navajo tribe,” but “it contains no language imposing a duty on the United States to take affirmative steps to secure water for the Tribe.”
The majority opinion, authored by Justice Brett Kavanaugh, noted that while the treaty did impose certain other duties on the U.S., including constructing buildings on the reservation, it “said nothing about any affirmative duty for the United States to secure water.” Justice Kavanaugh further wrote that while the President may update the law “to meet modern policy priorities and needs” regarding the reservation’s water supply, “it is not the Judiciary’s role to update the law.”
Further, SCOTUS has found that while the U.S. maintains a “general trust relationship with Indian tribes… unless Congress has created a conventional trust relationship with a tribe as to a particular trust asset, this Court will not apply ‘common-law trust principles’ to infer duties.” The majority opinion was joined by Justices Roberts, Thomas, Alito, and Barrett, and Justice Thomas filed a concurring opinion. The CEB article is available HERE. The SCOTUS decision is available HERE.