Gorsuch, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 21–1484 and 22–51
ARIZONA, ET AL., PETITIONERS
21–1484v.21–1484
NAVAJO NATION, ET AL.
DEPARTMENT OF THE INTERIOR, ET AL., PETITIONERS
22–51v.22–51
NAVAJO NATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 22, 2023]
Justice Gorsuch, with whom Justice Sotomayor, Justice Kagan, and Justice Jackson join, dissenting.
Today, the Court rejects a request the Navajo Nation never made. This case is not about compelling the federal government to take “affirmative steps to secure water for the Navajos.” Ante, at 2. Respectfully, the relief the Tribe seeks is far more modest. Everyone agrees the Navajo received enforceable water rights by treaty. Everyone agrees the United States holds some of those water rights in trust on the Tribe’s behalf. And everyone agrees the extent of those rights has never been assessed. Adding those pieces together, the Navajo have a simple ask: They want the United States to identify the water rights it holds for them. And if the United States has misappropriated the Navajo’s water rights, the Tribe asks it to formulate a plan to stop doing so prospectively. Because there is nothing remarkable about any of this, I would affirm the Ninth Circuit’s judgment and allow the Navajo’s case to proceed.
