On Thursday, June 22, 2023, the Supreme Court issued its decision in Arizona v. Navajo Nation. In a 5-4 decision, the Court held that the United States owes no “affirmative duty” to the Navajo Nation to secure water, reversing a decision by the US Court of Appeals for the 9th Circuit. The majority held that the 1868 Treaty of Bosque Redondo did not establish a federal obligation to provide water.
The decision hinged on the way the court framed the Nation's claims. Accepting the federal government's argument, the majority viewed Indian treaties as establishing rights to various resources, including land, timber, minerals, and water. Each property right was seen as a "stick in the bundle of property rights that make up a reservation." Consequently, the burden was placed on the Navajo Nation to demonstrate that the treaty explicitly obligated the United States to go beyond recognizing tribal water rights. Drawing on precedents like United States v. Jicarilla Apache Nation, the Court held that the United States only owes obligations to Indian tribes as explicitly stated in treaties, statutes, or regulations. In other words, once the federal government recognizes tribal property rights through a treaty, its obligations are limited unless further enactments exist.
AJ Ferate and Jennifer Weddle joined us to break down the Court’s findings.
Featuring:
--Jennifer Weddle, Shareholder & Co-Chair, American Indian Law Practice Group, Greenberg Traurig LLP
--Anthony J. Ferate, Of Counsel, Spencer Fane LLP
