As I noted in an earlier post, I'm delighted to report that we have two items on this June 2023 Supreme Court case today, both from people who know a great deal about Indian law; unfortunately, I know very little about the subject, but I know it's important, and I'm glad to have a chance to pass along these items. This is from Harriet McConnell Retford, who is a member of the American Indian Law group and Greenberg Traurig LLP and the co-author of an amicus brief in Navajo Nation on behalf of the Coalition of Large Tribes (the views expressed are her own and don't reflect those of Greenberg Traurig or the Coalition):
The Supreme Court's decision in Arizona v. Navajo Nation, No. 21-1484 comes at the messy intersection of two of the least functional doctrines in federal Indian law: reserved water rights under Winters v. United States (1908) and Indian trust doctrine under United States v. Mitchell (1980).
It also showcases the now-familiar contrast between the Court's two different approaches to conservative jurisprudence: the strict formalism of Justice Gorsuch—a stern insistence that the United States live up to the letter of its legal obligations come hell or high water—as opposed to the status-quo, stare decisis driven conservative jurisprudence of Justice Kavanagh and Chief Justice Roberts.
Justice Gorsuch would insist that if the United States serves as "trustee" for the lands and waters of Indian tribes then it has a duty to account for those waters and to make absolutely certain that it does not take any action that would divert those waters to other public or private purposes. The majority instead follows a long line of precedents that allow the United States to assert the privileges of trustee over Indian lands without assuming the corresponding obligations.
To be fair, however, there are significant problems with Arizona v. Navajo Nation as a vehicle for addressing these issues, especially the lack of clarity regarding the remedy being sought, so hopefully further opportunities will come to revisit these doctrines in a cleaner case.
Tribes have water rights in theory, but legal obstacles make the use of these rights prohibitively expensive.
