By: Tyler Shappee

The Supreme Court is set to hear a case that will affect the Navajo Nation, located largely in northeastern Arizona. The Court granted certiorari on November 4, 2022, consolidated the case as Arizona v. Navajo Nation, and has scheduled oral argument for March 20, 2023. While this suit began in 2003, its history stretches back much farther. The case commenced in 2003 when the Navajo Nation brought a breach of trust claim against the federal government for failure to consider the Nation’s water rights.

The district court originally dismissed the Nation’s claim on sovereign immunity grounds, but on appeal, the Ninth Circuit remanded the claim.[1] On remand, the district court again dismissed the complaint, for two other reasons. First, it held that it lacked jurisdiction to decide the claim because the Supreme Court reserved jurisdiction over allocation of rights to the Colorado River in Arizona v. California.[2] The Supreme Court’s 1964 decree resulting from that case allocated rights to the River among various states and five tribes, none of which were the Nation. Second, the district court held that the Nation did not identify a specific treaty, statute, or regulation that imposed an enforceable trust duty on the federal government that could be vindicated in federal court. The Nation again appealed.

The Ninth Circuit reversed and remanded once again after responding to both of the district court’s assertions. First, although the Supreme Court did retain original jurisdiction over water rights claims to the Colorado River in Arizona v. California, the Nation’s complaint was not seeking a judicial quantification of its rights to the Colorado River. Rather, the Nation was asking for the federal government to determine the extent to which the Nation needs water, and then to develop a plan to secure that water.[3] Second, the complaint did properly state a breach of trust claim premised on the Nation’s treaties with the United States and the Nation’s federally reserved Winters rights.[4] Under the Winters doctrine, when the Federal Government withdraws its land from the public for the purpose of establishing a reservation, the Government, by implication, reserves water then unappropriated to the extent needed to accomplish the purpose of the reservation.[5]

In its petition for certiorari, the petitioners asked the Supreme Court to answer two questions. First, does allowing the Nation to proceed with its claim infringe upon the Court’s retained and exclusive jurisdiction in Arizona v. California? The Court could come out several different ways on this question: it could determine it only has retained jurisdiction, but not exclusive; it could agree with the Ninth Circuit and find that this case does not even implicate its jurisdiction in Arizona v. California; or it could, of course, agree with petitioners and the district court that this claim cannot be brought because it falls within the Court’s retained and exclusive jurisdiction. The second question is whether the Nation’s breach of trust claim is consistent with past precedent when based solely on unquantified implied rights to water under the Winters doctrine. The Court’s interpretation of the Winters doctrine might be important not only for this case and the Nation, but also for other tribes that will want to bring claims for water rights.

Hopefully the Supreme Court will recognize that the right to water is inherent in any treaty between the United States and a tribe establishing a reservation. Water is fundamental to life, and as the Ninth Circuit also noted, the lack of water has exacerbated the impact of COVID on the Navajo Nation.[6]

Tyler is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. After law school he hopes to work in international human rights law. He was born and raised in Phoenix, Arizona but enjoys to travel whenever possible, especially internationally. Outside of law school he enjoys reading, watching old movies, and attempting to learn French.

[1] Navajo Nation v. Dep’t of Interior (Navajo I), 876 F.3d 1144, 1174 (9th Cir. 2017).

[2] 373 U.S. 546 (1963) (opinion); accord Arizona v. California (1964 Decree), 376 U.S. 340, 353.

[3] Navajo Nation v. Dep’t of Interior, 26 F.4th 794, 799 (9th Cir. 2022).

[4] Id. at 800.

[5] Cappaert v. United States, 426 U.S. 128, 138, (1976); see Winters v. United States, 207 U.S. 564, 576, (1908).

[6] Id. at 802.

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