Navajo water: the 1868 treaty reserves water but creates no duty to secure it (Arizona v. Navajo Nation, 2023)

What happened

The 1868 treaty ended the war with the Navajo and, in the Supreme Court's words, established the reservation in their original homeland. It now spans some 17 million acres. The treaty also required the United States to provide schools, a chapel, teachers, and seeds and farm tools for a limited period. Winters-type water rights come from the reservation itself; the Court noted the treaty's text "says nothing" about the United States taking affirmative steps to secure water.

Under the Winters doctrine, set out in Winters v. United States (1908), the Court held that the 1888 agreement creating the Fort Belknap Reservation reserved Milk River water for it, and that Montana's statehood did not repeal that reservation. Winters also says that "ambiguities occurring will be resolved from the standpoint of the Indians."

In Arizona v. Navajo Nation (2023), the Navajo Nation asked the courts to make the United States assess its water needs and plan to secure Colorado River water. The Court ruled 5-4, in an opinion by Justice Kavanaugh, that the treaty reserved the water needed to serve the reservation's purpose but did not require the United States to take affirmative steps to secure it. The majority wrote that "Indian treaties cannot be rewritten or expanded beyond their clear terms." Justice Gorsuch, joined by three others, dissented, writing that the Court rejected a request the Nation never made. Negotiated settlements and Congress remain the routes for water claims.

Good to know. The Court held the United States has no duty to secure the water, so this is not a finding that the treaty was broken.

Summarized with AI assistance from 3 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error