Abstract
Within the last five years, the U.S. Supreme Court has taken up several transformative cases affecting Native nations and federal Indian law jurisprudence. The Supreme Court’s decision in Arizona v. Navajo Nation is no different. This Article examines that decision and situates it within that legal history as well as the realities of present-day water resource availability. While recent decisions have shown the Court’s willingness to confirm fundamental components of federal Indian law, such as the legal tests for determining the persistence of reservation and the authority of Congress to enact the Indian Child Welfare Act, the Court’s examination of the federal trust responsibility, however, has followed a different path. This Article focuses on the foundation of federal Indian trust law and identifies the aspects of the Court’s decision that depart from basic principles of trust law. Those departures ultimately make it more difficult for Native nations to seek redress for the federal government’s failure to act on behalf of tribal requests for assistance. The scope of the federal trust responsibility certainly cannot amount to a blank check to tribal communities to obtain whatever they seek, but it also cannot be a mirage—visible from afar but disappearing upon closer inspection. This Article concludes with a warning arising out of the wicked problem caused by the collision between the realities of climate changeaccelerated water scarcity, strong tribal legal rights to water, and the increasing water needs of non-Indian communities.
