The United States entered into a treaty with the Navajo tribe in 1868, creating the Navajo Indian reservation which now encompasses more than 17 million acres, most of it in the Colorado River Basin.

The treaty reserved necessary water rights to accomplish the purposes of the Navajo Reservation.

The Navajo sued the United States, seeking to compel the U.S. to take step to assess the Tribe’s water needs, develop a plan to secure the needed water, and potentially build pipelines, pumps, wells, or other water infrastructure.

The case wended its way to the United States Supreme Court, which ruled that the 1868 treaty did not create an affirmative duty for the U.S. to secure water for the Tribe.

Justice Gorsuch penned a powerful dissenting opinion, in which he was joined by Justices Sotomayor, Kagan, and Jackson.

He begged to differ with the majority’s formulation of what the Navajo Tribe was actually seeking. Everyone agrees that the Navajo Tribe received enforceable water rights in the 1868 treaty. Everyone agrees that the U.S. holds some of those rights in trust for the Tribe. And everyone agrees that the extent of those rights has never been assessed.

In Justice Gorsuch’s view, the Navajo Tribe’s ask is more modest than the majority makes it appear. They simply ask that the U.S. identify the water rights that it holds for them and, if the U.S. has misappropriated such rights, that it create a plan to stop doing so.

Justice Gorsuch would have allowed the lawsuit to proceed.

See Department of the Interior v. Navajo Nation, et. al., 599 U.S. _______ (2023).