Episode description

Welcome to Supreme Court Opinions. In this episode, you’ll hear the Court’s opinion in Arizona v Navajo Nation.

In this case, the court considered this issue: Does the 1868 Treaty between the Navajo Nation and the United States impose an affirmative duty on the United States to secure water for the tribe?

The case was decided on June 22, 2023.

The Supreme Court held that the 1868 treaty establishing the Navajo Reservation reserved necessary water to accomplish the purpose of the Navajo Reservation but did not require the United States to take affirmative steps to secure water for the Tribe. Justice Brett Kavanaugh authored the majority opinion of the Court.

To succeed on a breach-of-trust claim, as the Tribe asserts here, it must establish, among other things, that the text of a treaty, statute, or regulation imposed certain duties on the United States. The 1868 treaty did not do so. While it did impose a number of specific duties, such as to construct a number of buildings on the reservation and to provide teachers for schools for at least 10 years, the treaty said nothing about any affirmative duty for the United States to secure water for the Tribe. The Court declined to infer such a duty to secure water, particularly when the treaty imposed no such duty with respect to land.

Justice Clarence Thomas authored a concurring opinion highlighting the confusion over the definition of a “trust relationship” and calling upon the Court to clarify its meaning in future cases.

Justice Neil Gorsuch authored a dissenting opinion, in which Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson joined. Justice Gorsuch characterized the case as the Navajo Tribe simply asking the United States to identify the water rights it holds for them, and, if the United States has misappropriated the Navajo’s water rights, to formulate a plan to stop doing so prospectively. Under this characterization, the dissenters would allow the Tribe’s case to proceed.

The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.