To: IGA Member Tribes From: Ernest L. Stevens, Jr., Chairman Jason C. Giles, Executive Director
Re: Supreme Court Issues Opinion in Arizona v. Navajo Nation , finding the 1868 Treaty did not create an affirmative duty of the United States to secure water rights for the tribe Date: June 22, 2023 On Thursday, June 15, 2023, the United States Supreme Court issued its opinion in Arizona v. Navajo Nation. The court in a 5-4 decision held that the United States did not have an affirmative trust responsibility arising from the 1868 Treaty to secure water rights for the Tribes. The Navajo Nation had argued that the United States in entering into the 1868 treaty with the Navajo Nation and promising a permanent homeland was required to take active steps to secure water for the Navajo Nation. Justice Kavanaugh writing for the majority stated the treaty “contained no ‘rights-creating or duty-imposing’ language that imposed a duty on the United States to take affirmative steps to secure water for the Tribe.” Chairman Stevens said “It is disappointing the Supreme Court rejected that the United States has a responsibility to secure a basic human right to the Navajo Nation. Water is at the heart of a permanent livable homeland. ‘Livable’ being an explicit and implicit promise made in all Indian Treaties, where Tribes ceded millions of livable acres of land to this Country.” The Majority found no “rights-creating or duty-imposing” language that would require the United States to take any affirmative steps to help secure water for the Navajo Nation. Acknowledging that the Nation has reserved water rights pursuant to its treaties, the Court nevertheless declined to find that the treaty language “permanent home” created any specific water duties on the United States. Similarly, the treaty provision requiring the United States to provide seeds and agricultural implements for up to three years, contained no reference to water. The Court also noted that the history of the treaty negotiations did not mention any water-related obligations. More disturbingly, Justice Thomas joined the majority opinion in full but wrote a concurrence to discuss the “general trust relationship between the United States and the Indian people.” Justice Thomas then suggested the Court needs to further examine its jurisprudence related to the Trust Relationship, including reevaluating the Indian Canons of Construction.
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