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Brigham Young University Prelaw Review

Keywords

Treaty Interpretation, Indian Treaty Canons, Federal Trust Responsibility, tribal sovereignty, reservation rights, implied treaty rights, rights-creating language, duty-imposing language, the Winters Doctrine, water quantification, affirmative duty, negative duty, Navajo Nation, The Long Walk

Abstract

In the State of Arizona v. Navajo Nation, the Supreme Court asked the Navajo to accept a contradiction. In light of disagreements over water rights between Arizona and the Navajo Tribe, members of the Navajo pointed to the Treaty of Bosque Redondo. The Treaty was a compromise between the Navajo and US Officials to reparate the Navajo after “The Long Walk”: a series of forced relocations against the Natives that resulted in over 2,500 deaths. Among these reparations was the guarantee of a “permanent home” on US federal lands. For over a century, case law defined a “permanent home” to necessitate ample water resources for residing tribes. In 2022, the Navajo Nation urged US Officials to define which water reserves were under Tribal jurisdiction, later bringing the case to the Supreme Court. In a split 5-4 decision, the Court decided that requiring congress to direct which resources the Navajo were entitled to was beyond the scope of the Treaty’s language and Federal Trust Responsibility. This paper aligns itself with the dissent, arguing that the guarantee of a “permanent home” provides sufficient justification for action, and that one’s “permanent home” necessitates the existence of water.

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