•  
  •  
 

Abstract

When the United States Supreme Court’s decision in Arizona v. Navajo Nation was published in June 2023, Indian Country was hardly surprised with the Court’s ruling. There, the Court found that the United States had no affirmative duty to affirmatively protect the Navajo Nation’s water rights under the 1868 Treaty.1 The Court was clear: the treaty is insufficient for the Navajo’s current water needs, but the judiciary is unable to step in to find relief.2 This decision is another in a long series of cases on water allocation and the federal reserved water right, where tribes have been unable to obtain fundamental rights and/or basic needs guaranteed by treaty. The current legal system by which Native American tribes quantify their federal reserved water allocation right is overly complex and archaic, leaving tribes in a particularly vulnerable position trying to secure water for their people and regular operations. This problem will worsen along with climate change, as higher temperatures lead to lower water levels and tribes and states continue to compete for limited water resources for their people.

This note first reviews the decision in Arizona v. Navajo Nation, with a particular focus on Justice Neil Gorsuch’s Dissent and the greater implications of the case. The paper then outlines water allocation schemes in the United States on a state (riparian, prior appropriation, and hybrid) and federal level (federal reserved rights). The paper goes on to discuss how federal reserved water rights apply to Native American tribes. Moreover, it outlines primary conflicts in water allocation between tribes and the states, particularly Arizona. It then addresses the current structure of tribal water settlements. Finally, this paper concludes with recommendations for Congressional intervention in setting standards for interpreting and quantifying tribal water allocation and general settlement improvements.

Download

Share

COinS