Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes cases granted review on November 4 and 10, 2022
Case Granted Review: Arizona v. Navajo Nation, 21-1484; Dep’t of Interior v. Navajo Nation, 22-51
Arizona v. Navajo Nation, 21-1484; Dep’t of Interior v. Navajo Nation, 22-51. The Court previously entered a decree in an original jurisdiction action, Arizona v. California, 547 U.S. 150 (2006), apportioning rights to water in the Colorado River. In that action, the United States had intervened and asserted claims for several tribes—but not the Navajo—to the river’s mainstream, and asserted claims to a tributary for the Navajo. The Court retained jurisdiction to modify that decree. In this matter, the Navajo Nation claims that the federal government has breached its trust obligations by failing to meet the Nation’s unquantified water rights and needs. The Nation seeks an injunction requiring the federal government to secure water for it, including by managing the Colorado River mainstream to give the Nation the water it needs. There are two questions presented. First: Did the Ninth Circuit correctly permit the Nation to proceed with a claim to enjoin the Secretary of the Interior to develop a plan to meet the Nation’s water needs, or does that infringe on the Supreme Court’s retained jurisdiction over the allocation of the Colorado River mainstream in Arizona v. California? Second (as phrased by the United States): “Whether the federal government owes the Navajo Nation an affirmative, judicially enforceable fiduciary duty to assess and address the Navajo Nation’s need for water from particular sources, in the absence of any substantive source of law that expressly establishes such a duty.”
The district court held that it could not decide the Nation’s breach-of-trust claim because it fell within the Supreme Court’s reserved jurisdiction under the Arizona v. California decree. The Ninth Circuit reversed. 26 F.4th 794. It held that the Nation is not seeking a quantification of its rights to the Colorado River mainstream, which would fall within the Supreme Court’s reserved jurisdiction. Rather, it is simply seeking to show that it has unmet water needs, and thus that the federal government has a duty under Winters v. United States, 207 U.S. 564 (1908), to reserve sufficient water for the Nation to meet the purpose of its reservation—which falls outside the Court’s reserved jurisdiction. Next, the Ninth Circuit disposed of the argument that the Nation could not state a breach-of-trust claim because it could not point to a treaty, statute, or regulation that imposed an affirmative trust duty on the federal government to ensure the Nation had an adequate water supply. See United States v. Jicarilla Apache Nation, 564 U.S. 162, 176-77 (2011) (holding United States “assumes Indian trust responsibilities only to the extent it expressly accepts those responsibilities by statute,” treaty, or regulation). The Ninth Circuit held that the Nation “has identified specific treaty, statutory, and regulatory provisions that impose fiduciary obligations on Federal Appellees—namely, those provisions of the Nation’s various treaties and related statutes and executive orders that establish the Navajo Reservation and, under the long-established Winters doctrine, give rise to implied water rights to make the reservation viable.”
The federal government and intervenors Arizona et al. (two other states and various state and local governmental entities) sought certiorari. Arizona et al. argue first that the Ninth Circuit’s ruling improperly authorizes the Secretary to conduct an ex parte adjudication without a full and fair hearing to consider whether the Nation is entitled to water from the Colorado River. It claims this adjudication will reduce the amount of water available to existing entitlement holders in Arizona and will violate the Supreme Court’s decision in Arizona v. California. “Any action taken by the Secretary to deliver mainstream water,” Arizona et al. argue, “must be pursuant to express authority granted by the Consolidated Decree or congressional act.” Second, Arizona et al. contend that the district court correctly held that it lacked subject-matter jurisdiction. They argue that the “question of whether the Nation has any reserved right to the mainstream” falls within the jurisdiction the Court reserved in Arizona v. California. Third, Arizona et al., together with the federal government, argue that the Ninth Circuit’s decision allowing a claim for implied water rights to proceed cannot be squared with the Supreme Court’s holdings that the United States only assumes trust responsibilities that are explicit in treaties, statutes, or regulations. Arizona et al. and the United States point out that other circuits have rejected analogous claims, so the Ninth Circuit’s decision creates a split.