Todd Henderson on Arizona v. Navajo Nation

Reason – ICLE Academic Affiliate M. Todd Henderson was quoted by Reason in a story citing his commentary on the U.S. Supreme Court’s decision in Arizona v. Navajo Nation. You can read full piece here.

Although it did not garner as much attention as the decision in the Indian Child Welfare Act case, the Supreme Court’s recent decision in a water dispute in Arizona is potentially more significant. In Arizona v. Navajo Nation, the Court held that despite being a “trustee” for the Navajo Nation and despite having promised the Navajo water sufficient to make its lands productive, the United States does not have an obligation to help the Navajo obtain that water.

The decision is the latest in a series of rulings that effectively gut the affirmative duties necessary under the trust obligation, absent explicit congressional command. Like many aspects of Indian law, the modern Court has flipped the script.

The old rule was the Court would interpret legal texts in favor of tribal interests, absent explicit congressional instructions to abrogate those rights—generally, the tie went to the Indian. Today, the opposite is increasingly true, with the Court looking for specific intent from Congress to give, rather than looking for specific intent to take away. Changing the default rule here, as elsewhere in law, has enormous implications.