Arizona v. Navajo Nation (21-1484)

argument 21-1484

Arizona v. Navajo Nation

Supreme Court of the United States 1h 50m 8 speakers 8 chapters transcribed 8 days ago official recording ↗

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What are the Navajo Nation’s water rights under the 1868 treaty?

John G. Roberts 0:00

We will hear argument this morning in case twenty one fourteen eighty four, Arizona versus the Navajo Nation

Unknown 0:07

and the consolidated case. Mr. Liu? Thank you, Mr. Chief Justice, and may it please the court. When a reservation is established, that reservation isn't just the land. It's also a right to the timber on the land, a right to the minerals below the surface, and under winters a right to water for the reservation. Each of those rights is a stick in the bundle that makes up the reservation, and when the Navajo reservation was originally established and later expanded, the Navajo Nation got all of those sticks and it still possesses them today. There's no dispute about that. The dispute here is about something different, whether the United States owes the Navajo Nation a judicially enforceable affirmative duty to assess the tribe's water needs, develop a plan to meet them, and then carry out that plan by building water supply infrastructure on the reservation.

Unknown 1:00

The answer to that question is no. Just as the eighteen sixty eight treaty didn't impose on the United States a duty to build roads or bridges, or to harvest timber, or to mine coal. The eighteen sixty eight treaty didn't impose on the United States a duty to construct pipelines, pumps or wells to deliver water. Those affirmative duties aren't part of the treaty. And because the government has never expressly accepted those duties, the Navajo Nation's breach of trust claim can't proceed. This is not to say that the United States doesn't have a moral and political responsibility to address the Navajo Nation's water needs. As part of the general trust relationship, Congress and the Executive have secured for the Navajo Nation.

Unknown 1:47

hundreds of thousands of acre feet of water and over a billion of do billions of dollars for infrastructure uh uh on the reservation. And in in exercising its own sovereignty, the Navajo Nation is free to develop its own infrastructure projects, including by drilling water to access the cheapest source of water on the reservation, groundwater. What the Navajo Nation cannot do, however, is to impose on the United States a duty that the government has never expressly accepted. According to the judgment below should be reversed. I welcome the court's questions.

Clarence Thomas 2:24

Uh Mr Liu, would you uh just take a step back and address the jurisdictional Uh issue. uh particularly with respect to redressability. uh and this uh court's retention of uh jurisdiction on the Colorado River.

Unknown 2:40

Sure. We don't view the issue as going to the district court's subject matter jurisdiction. Uh we view it as a substantive merits determination about whether the relief that could be granted at the end of this suit would violate the substance of the decree that this court entered in Arizona versus California. Um so I think you would have to look at the relief that could be ordered down the road and measured against the decree. I think everyone at this point agrees that an order by the district court in this case that would order the delivery of water from the lower mainstream of the Colorado River to the Navajo Reservation would violate the decree because the degree the decree places conditions on when such water can be delivered by the United States.

Clarence Thomas 3:25

Where else would the water come from?

Unknown 3:27

There's plenty of sources um on the Navajo reservation. So if we're talking about the particular uh uh region of the Navajo reservation that's at issue in this complaint, uh the most uh accessible source of water on the reservation is groundwater. There are aquifers that lie beneath the reservation and there's no impediment to the Navajo nation accessing those water sources today. In fact they're doing it across other parts of the reservation. Another source of possible water for this region is the upper basin, the Colorado River and the Upper Basin. That that upper basin water is farther away than the lower Colorado mainstream, but it's far more accessible. And the reason why is if you look at the terrain of the lower Colorado Mainstream that's adjacent to this part of the of the reservation, it is a