SUPREME COURT OF THE UNITED STATES
_________________
Nos. 21–1484 and 22–51
_________________
ARIZONA, et al., PETITIONERS
21–1484
v.
NAVAJO NATION, et al.
DEPARTMENT OF THE INTERIOR, et al.,
PETITIONERS
22–51
v.
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.
I
Understanding this lawsuit requires at least
three pieces of context the Court’s opinion neglects. It
requires some understanding of the history that led to the Treaty
of 1868 establishing the Navajo Reservation. It requires some
insight into the discussions that surrounded that Treaty. Finally,
it requires an appreciation of the many steps the Navajo took to
avoid this litigation.
A
For centuries, the Navajo inhabited a stretch
of land in “present-day northwestern New Mexico, northeastern
Arizona, and the San Juan drainage beyond.” J. Kessell,
General Sherman and the Navajo Treaty of 1868: A Basic and
Expedient Misunderstanding, 12 W. Hist. Q. 251, 253 (1981)
(Kessell). This ancestral home was framed by “four mountains
and four rivers” the Tribe considered sacred. Treaty Between
the United States of America and the Navajo Tribe of Indians, With
a Record of the Discussions That Led to Its Signing 2 (1968)
(Treaty Record); see also E. Rosser, Ahistorical Indians and
Reservation Resources, 40 Env. L. 437, 445 (2010). There, tribal
members “planted their subsistence crops,”
“hunted and gathered,” and “r[an] their
livestock” over the plains. Kessell 253.
In the 1860s, that way of life changed forever.
In the aftermath of the Mexican-American War—and following a
period of rapid westward expansion—the United States found
itself embroiled in a series of bitter conflicts with the Navajo.
P. Iverson, Diné: A History of the Navajos 37–48
(2002) (Iverson). Eventually, the United States tasked James Henry
Carleton with resolving them.
Id., at 47–48.
“Determined to bring an end to Native resistance in the
territory,” he elected for a program of “removal,
isolation, and incarceration.”
Id., at 48. He hoped
that time on a reservation would teach the Navajo
“ ‘the art of peace,’ ” and that,
while confined, they might “ ‘acquire new habits,
new values, new modes of life.’ ”
Id., at
49. In time, he imagined, “ ‘the old Indians will
die off and carry with them the latent longings for murder and
robbing; the young ones will take their places without these
longings: and thus, little by little, they will become a happy and
contented people.’ ”
Ibid. This vision
found support from others in the federal government. As
Commissioner of Indian Affairs William P. Dole put it in his annual
report, the situation with the Navajo
“ ‘demand[ed] the earliest possible interposition
of the military force of the government.’ ”
Ibid. In his view, only putting the Navajo on a
“ ‘suitable reservatio[n]’ ”
would end their “ ‘wild and predatory
life.’ ”
Ibid.
In settling on this plan, the federal government
had goals in mind beyond reducing conflict. As Carleton explained,
“ ‘[b]y the subjugation and colonization of the
Navajo [T]ribe we gain for civilization their whole country, which
is much larger in extent than the [S]tate of Ohio, and, besides
being the best pastoral region between the two oceans, is said to
abound in the precious as well as [other] useful
metals.’ ”
Id., at 50. The
“ ‘exodus of this whole people from the land of
their fathers’ ” would be, he imagined,
“ ‘a touching sight.’ ”
Ibid. But no matter. He saw it as the Navajo’s
“ ‘destiny’ ” to
“ ‘give way to the insatiable progress of our
race.’ ”
Ibid.
Removal demanded finding a new home for the
Tribe. Carleton picked the location himself: an area hundreds of
miles from the Navajo’s homeland “commonly called the
Bosque Redondo.”
Ibid.; see also Kessell 254. Warning
signs flashed from the start. Officers tasked with surveying the
site cautioned that it was
“ ‘remote’ ” from viable
“ ‘forage’ ” and that
“ ‘[b]uilding material’ ” would
have to come from a significant distance. Iverson 50
. Worse,
they found that the water supply was meager and contained
“ ‘much unhealthy mineral
matter.’ ”
Ibid.; see also Kessell 269.
Carleton ignored these findings and charged ahead with his plan.
Iverson 50.
That left the not-so-small matter of securing
the Navajo’s compliance. To that end, the federal government
unleashed a “maelstrom of destruction” on the Tribe.
Id., at 51. Before all was said and done, “the Navajo
had to be literally starved into surrender.” 2 Hearing before
the U. S. Commission on Civil Rights, Office of General
Counsel, Demographic and Socio-Economic Characteristics of the
Navajo 6 (1973) (Commission Report). “[T]housands of U. S.
troops roamed the Navajo [Country] destroying everything the Navajo
could use; every field, storehouse, and hut was burned.”
Ibid. The campaign was “brief, blunt, and, when
combined with a particularly difficult winter,” effective.
Iverson 51. By the winter of 1863–1864, most of the Navajo
had surrendered. Commission Report 6–7; see also Iverson
51.
That period of violence led to “the Long
Walk.” In truth, it was not one walk but many—over 53
separate incidents, according to some.
Id., at 52. In each
case, federal officers rounded up tribal members, “[h]erded
[them] into columns,” and marched them hundreds of miles from
their home. Kessell 254. “Many died en route, some shot by
the souldiers.” Commission Report 7. As one Navajo later
recounted, people were killed “ ‘on the spot if
they sa[id] they [were] tired or sick or if they stop[ped] to help
someone.’ ” Iverson 55. Still “[o]thers fell
victim to slavers with the full complicity of the U. S.
officials.” Commission Report 7.
Those who survived wound up at “a
destination that surpassed their fears.” Iverson 52. Bosque
Redondo was just what the officers had warned: a “semiarid,
alkaline, fuel-stingy, insect-infested environment.” Kessell
255. And, just as they predicted, water proved a serious issue. The
Tribe was forced to rely on a “ ‘little stream
winding through an immense plain.’ ” Iverson 59.
But its “water was bad.” Kessell 259. No surprise,
then, that “[o]nly half the land under cultivation at the
Bosque was productive.”
Ibid. No surprise either that
even the productive land yielded “one disastrous crop failure
after another.”
Id., at 255. Further feeding the
crisis, Carleton “badly underestimated the number of Navajos
who would end up at the Bosque Redondo.”
Ibid. All
told, the relocation proved a “catastrophe for the Navajo;
2,000 died there in four years.” Commission Report 8.
B
“By 1868 even the U. S. government could
see” that the present conditions could not persist.
Ibid. So it set out to relocate the Navajo once more. To
that end, the United States sent members of the Indian Peace
Commission to negotiate a new treaty with the Tribe. Kessell
257–258. Led by General William Tecumseh Sherman, the
Commission disfavored allowing the Navajo to return to their
homeland.
Ibid. Doing that, the Commission feared, risked
rekindling old hostilities.
Id., at 257. So Sherman tried to
persuade the Navajo to relocate someplace else. Understanding the
importance of water to the Navajo, he offered them assurances that
other locations would have “plenty of water.” Treaty
Record 5.
The Navajo would have none of it. Their lead
negotiator, Barboncito, refused to “go to any other country
except [his] own.”
Ibid. Any place else, he said,
could “turn out another Bosque Redondo.”
Id., at
5–6. “[O]utside [our] own country,” Barboncito
told Sherman, “we cannot raise a crop, but in it we can raise
a crop almost anywhere.”
Id., at 3. “[W]e know
this land does not like us,” he said of Bosque Redondo, and
“neither does the water.”
Ibid. Along the way,
he spoke of “the heart of Navajo country,” which he
described as including a place where “the water flows in
abundance.”
Id., at 8. In the end, “[t]he will
of the Navajos—personified in the intense resolve of
Barboncito,” won out. Kessell 259. Sherman came to realize
that, if he left the Navajo at Bosque Redondo, the dire
conditions—including “ ‘the foul character
of [the] water’ ”—would eventually induce
them to drift away from the encampment.
Id., at 260. And the
Navajo flatly refused to move to some other unfamiliar place.
Ibid.
Arriving at that conclusion proved simple
enough; arriving upon a treaty proved more challenging. There was,
of course, no small power asymmetry. As one Senator noted at the
time, it was a curious feature that the Commissioners set out to
“ ‘conclude a treaty with
Indians’ ” who were at that very moment being
“ ‘held on a reservation against their
will.’ ”
Id., at 259. Language barriers
presented complications too. Messages had to be translated
twice—first from English to Spanish, and then from Spanish to
Navajo.
Id., at 261. Aggravating matters, the parties saw
the world very differently. The United States’
representatives “spoke of artificial lines on maps, of
parallels and meridians”; the Navajo spoke “of
geographical features, of canyons, mountains, and mesas.”
Ibid. The United States’ representatives “talked
about ownership and a claim to the land”; the Navajo talked
about “using the land.”
Ibid. As a result, the
parties often “misunderstood each other.”
Ibid.
And whether intentionally or inadvertently, Sherman
“misled” the Navajo about, among other things, the size
of their reservation.
Id., at 263. He promised twice the
land that they received in the final accounting.
Ibid.
In the end, the Treaty of 1868 provided the
Navajo less land per capita—two-thirds less—than the
other Tribes the Indian Peace Commission would go on to negotiate
with.
Id., at 268. It seems that owed, in no small part, to
the negotiators’ understanding that the Navajo had
“already experienced irrigation agriculture” and could
plausibly get by with less.
Ibid. Indeed, when providing
instructions to the Indian Peace Commission about how they should
negotiate with the Navajo, the Secretary of the Interior discussed
the possibility of agriculture as bearing on the appropriate size
of the Tribe’s reservation. Unlike the Navajo, he thought,
“ ‘[w]ild Indians cannot at once be transformed
into farmers. They must pass through the intermediate stage of
herdsmen. They must first become pastoral, then
agricultural.’ ”
Id., at 269.
Despite all this, “[f]or the Navajos the
treaty signified not defeat, but victory, and not disappearance,
but continuation.” Iverson 36. “The agreement allowed
[them] to return to a portion of their home country.”
Ibid. Nor would that “portion” remain so
confined. The Navajo often struggled to stay on the narrow tract of
land the United States provided. Commission Report 9. In practice,
the federal government often tolerated (and sometimes encouraged)
the Navajo to live and tend to livestock off reservation to
preserve their self-sufficiency. Kessell 271. These arrangements
continued until the 1930s, when Congress first “enact[ed]
legislation defining the exterior boundaries of the Navajo
Reservation.”
Id., at 272. Over the ensuing decades,
Congress would go on to extend the reservation’s boundaries
repeatedly. See,
e.g., Act of June 14, 1934, 48 Stat. 960;
Act of Feb. 21, 1931, ch. 269, 46 Stat. 1204; Act of May 23, 1930,
ch. 317, 46 Stat. 378.
C
Fast forward to the present. Today, the Navajo
Reservation has become “the largest Indian reservation in the
United States,” with over “17 million acres,” and
over “300,000 members.” App. 90. Its western boundary
runs alongside a vast stretch of the Colorado River.
Id., at
91. Yet even today, water remains a precious resource.
“Members of the Navajo Nation use around 7 gallons of water
per day for all of their household needs”—less than
one-tenth the amount the average American household uses.
Id., at 101. In some parts of the reservation, as much as
91% of Navajo households “lack access to water.”
Id., at 102.
That deficit owes in part to the fact that no
one has ever assessed what water rights the Navajo possess. For
instance, “[a]lthough the Navajo Reservation is adjacent to
the Colorado River, the Navajo Nation’s rights to use water
from the Colorado River” have never been adjudicated.
Id., at 36. The United States acknowledges that it holds
certain water rights “in trust” for the Navajo. See Tr.
of Oral Arg. 26, 40. It does not dispute that it exercises
considerable control over the disposition of water from the
Colorado River. And it concedes that the Navajo’s water
rights “may . . . include some portion of the
mainstream of the Colorado.”
Id., at 33. But instead
of resolving what the Navajo’s water rights might be, the
United States has sometimes resisted efforts to answer that
question.
The current legal regime governing the Colorado
River began with a 1922 interstate compact between seven States.
That agreement split the Colorado into two basins—an Upper
Basin and a Lower Basin. See Colorado River Compact, Art. II, Colo.
Rev. Stat. §37–61–101 (2022). The compact answered
some high-level questions about which States could lay claim to
which sections of the river. But it did not purport to
“affec[t] the obligations of the United States of America to
Indian [T]ribes.”
Id., Art. VII. In that way, it left
the Navajo with no insight into what water they could claim as
their own.
Six years later, Congress entered the picture by
passing the Boulder Canyon Project Act, 45 Stat. 1057, codified at
43 U. S. C. §§617–619b. That Act had a
profound impact on the Lower Basin. It authorized the construction
of the Hoover Dam and the creation of Lake Mead. §617. More
than that, it gave the Secretary of the Interior substantial power
to divvy up the resulting impounded water. Failing agreement among
the States in the region, the law authorized the Secretary to enter
into contracts for the delivery of water and provided that
“[n]o person” may have water from the mainstream of the
Colorado in the Lower Basin “except by contract.”
§617d; see also
Arizona v.
California,
373 U.S.
546, 565 (1963) (
Arizona I ). In adopting this law,
Congress hoped “to put an end to the long-standing dispute
over Colorado River waters.”
Id., at 560.
Reality never quite caught up to the law’s
ambitions. After an agreement among the States failed to emerge and
the Secretary began issuing contracts to various users, Arizona in
1952 brought an original action in this Court against California
seeking a declaration of its water rights in the Lower Basin.
Id., at 550–551. Several other States intervened.
Ibid. So did the United States.
Ibid. In doing so,
the federal government claimed the need to “protect federal
interests, including the rights of the Navajo Nation and
twenty-four other Indian [T]ribes in the Lower Basin.” App.
104. As the litigation unfolded, however, the Navajo began to worry
that the United States did not have their best interests in mind.
In 1956, the Navajo Nation sought leave to file (along with six
other Tribes) a motion seeking “to define the scope of the
representation of the [T]ribes by the United States” and
objecting to what they considered a “lack of effective
representation and [a] conflict of interest.”
Id., at
105. That motion was denied.
Ibid.
Proceeding without the Navajo, this Court
referred the litigation to a Special Master. In time, the Special
Master prepared a report and recommendation that omitted any
mention of the Tribe.
Ibid. In response, the Navajo wrote to
the Attorney General. They asked the United States to object to the
Special Master’s report on their behalf.
Id., at
105–106. The Navajo say they never received a response.
Id., at 106. For its part, the United States eventually did
object—but not on the grounds the Navajo sought.
Ibid.
Having seen enough, the Navajo in 1961 moved to
intervene.
Ibid. They “argued that the United States
had failed to vigorously assert” their interests.
Ibid. More than that, the Tribe contended, the United States
had “ ‘abandoned the case so far as the
adjudication of the rights of the Navajo Indians [was]
concerned.’ ”
Ibid. The United States
opposed the Tribe’s motion.
Ibid. On its view, it had
already “ ‘undertaken representation of the
interests of several Indian [T]ribes,’ ” so there
was no need for the Court to hear from the Navajo.
Id., at
107. In any event, the United States assured the Court, it would
continue to apply “ ‘considerations of
justice’ ” in its dealings with the Tribe.
Ibid. The government conceded, however, “no evidence
had been submitted on behalf of the Navajo Nation for uses from the
mainstream.”
Ibid. And it conceded that “such
evidence would have had to be submitted in order for the Court to
consider the issue of the Navajo Nation’s rights to the
mainstream.”
Ibid. As with their previous attempts to
make their voices heard in the litigation, the Navajo’s
motion to intervene was denied.
Id., at 108.
In 1964, the litigation Arizona initiated more
than a decade earlier culminated in a decree. See
Arizona v.
California,
376 U.S.
340. It allocated the Lower Basin Colorado River mainstream
among various parties—including five other Tribes whose
interests the United States did assert. See
id., at
344–345. The decree also permitted the federal government to
release water pursuant to certain “valid contracts” and
applicable federal laws.
Id., at 343; Brief for Federal
Parties 7. But the Tribe’s rights remained in limbo. The
United States never asserted any rights on the Navajo’s
behalf; the Navajo never received an opportunity to assert them for
themselves. Since 1964, the decree governing the Lower Basin has
been modified at various points. See,
e.g., Arizona
v.
California, 547 U.S. 150 (2006);
Arizona v.
California,
531 U.S. 1
(2000);
Arizona v.
California,
466 U.S.
144 (1984). But it has never been modified to address the
Navajo.
In the intervening years, the Navajo have asked
the federal government—repeatedly—to assess their
rights in the mainstream of the Colorado. App. 109. In response to
those inquiries, the Tribe received a letter from the Department of
the Interior indicating that the Department still had not made
“any decisions” about what water rights, if any, the
Navajo may have in the river.
Id., at 110. The Department
posited that figuring that out would be a “somewhat lengthy
process,” one that had “yet to be initiated.”
Ibid.
Unwilling to wait indefinitely, the Navajo
eventually filed this suit. In it, the Navajo sought
“injunctive and declaratory relief to compel the Federal
Defendants to determine the water required to meet the needs of the
Nation’s lands in Arizona and devise a plan to meet those
needs to fulfill the promise of the United States to make the
Nation’s Reservation lands a permanent homeland for the
Navajo people.”
Id., at 86. In other words, the Tribe
asked the United States to assess what water rights it holds in
trust on the Tribe’s behalf pursuant to the Treaty of 1868.
Tr. of Oral Arg. 71–72. And if it turns out the United States
has misappropriated those water rights, the Tribe wants the federal
government to come up with a plan to set things right.
II
With a view of this history, the proper
outcome of today’s case follows directly. The Treaty of 1868
promises the Navajo a “permanent home.” Treaty Between
the United States of America and the Navajo Tribe of Indians, June
1, 1868, Art. XIII, 15 Stat. 671 (ratified Aug. 12, 1868) (Treaty
of 1868). That promise—read in conjunction with other
provisions in the Treaty, the history surrounding its enactment,
and background principles of Indian law—secures for the
Navajo some measure of water rights. Yet even today the extent of
those water rights remains unadjudicated and therefore unknown.
What is known is that the United States holds some of the
Tribe’s water rights in trust. And it exercises control over
many possible sources of water in which the Tribe may have rights,
including the mainstream of the Colorado River. Accordingly, the
government owes the Tribe a duty to manage the water it holds for
the Tribe in a legally responsible manner. In this lawsuit, the
Navajo ask the United States to fulfill part of that duty by
assessing what water rights it holds for them. The government owes
the Tribe at least that much.
A
Begin with the governing legal principles.
Under our Constitution, “all Treaties made” are
“the supreme Law of the Land.” Art. VI,
cl. 2. Congress can pass laws to implement those treaties,
see,
e.g.,
Bond v.
United States,
572 U.S.
844, 851, 855 (2014), and the Executive Branch can act in
accordance with them, see,
e.g., Fok Yung Yo v.
United States,
185 U.S.
296, 303 (1902). But the Judiciary also has an important role
to play. The Constitution extends “[t]he judicial
Power” to cases “arising under . . . Treaties
made, or which shall be made.” Art. III, §2,
cl. 1. As a result, this Court has recognized that Tribes may
sue to enforce rights found in treaties. See
Moe v.
Confederated Salish and Kootenai Tribes of Flathead
Reservation,
425 U.S.
463, 472–477 (1976). Other branches share the same
understanding. In enacting the Indian Trust Asset Reform Act of
2016, Congress confirmed its belief that “commitments made
through written treaties” with the Tribes “established
enduring and
enforceable Federal obligations” to them.
25 U. S. C. §5601(4)–(5) (emphasis added). The
Executive Branch has likewise and repeatedly advanced the
position—including in this very litigation—that
“a treaty can be the basis of a breach-of-trust claim”
enforceable in federal court. Brief for Federal Parties
22–23, n. 5.
What rights does a treaty secure? A treaty is
“essentially a contract between two sovereign nations.”
Washington v.
Washington State Commercial Passenger
Fishing Vessel Assn.,
443 U.S.
658, 675 (1979). So a treaty’s interpretation, like
“a contract’s interpretation, [is] a matter of
determining the parties’ intent.”
BG Group plc
v.
Republic of Argentina,
572 U.S.
25, 37 (2014). That means courts must look to the “shared
expectations of the contracting parties.”
Air France
v.
Saks,
470 U.S.
392, 399 (1985). All with an eye to ensuring both sides receive
the “benefit of their bargain.”
Mobil Oil
Exploration & Producing Southeast, Inc. v.
United
States,
530 U.S.
604, 621 (2000).
That exercise entails the application of
familiar principles of contract interpretation. Those principles
include an implied covenant of “the utmost good faith”
and fair dealing between the parties.
Sullivan v.
Kidd,
254 U.S.
433, 439 (1921). They include the doctrine of
contra
proferentem—the principle that any uncertainty in a
contract should be construed against the drafting party. See
Lamps Plus, Inc. v.
Varela, 587 U. S. ___,
___–___ (2019) (slip op., at 9–10); see also 1
Oppenheim’s International Law 1279 (R. Jennings & A.
Watts eds., 9th ed. 1992). And they include the doctrine of
unilateral mistake—the notion that, if two parties understand
a key provision differently, the controlling meaning is the one
held by the party that could not have anticipated the different
meaning attached by the other. See Restatement (Second) of
Contracts §201(2) (1979).
Still other doctrines impose a “higher
degree of scrutiny” on contracts made between parties sharing
a fiduciary relationship, given the risk the fiduciary will
(intentionally or otherwise) “misuse” its position of
trust. 28 R. Lord, Williston on Contracts §71:53, p. 617 (4th
ed. 2020). When it comes to the United States, such fiduciary
duties must, of course, come from positive law, “not the
atmosphere.”
Haaland v.
Brackeen, 599
U. S. ___, ___–___ (2023) (slip op., at 11–12).
But the United States has, through “acts of Congress”
and other affirmative conduct, voluntarily assumed certain specific
fiduciary duties to the Tribes.
Seminole Nation v.
United
States,
316 U.S.
286, 287, 297 (1942). That raises the specter of undue
influence—especially since, in many negotiations with the
Tribes, the United States alone had “representatives skilled
in diplomacy” who were “masters of [its] written
language,” who fully “underst[ood]
the . . . technical estates known to [its]
law,” and who were “assisted by an interpreter [they]
employed.”
Jones v.
Meehan,
175 U.S.
1, 11 (1899).
Put together, these insights have long
influenced the interpretation of Indian treaties. “The
language used in treaties with the Indians should never be
construed to their prejudice.”
Worcester v.
Georgia, 6 Pet. 515, 582 (1832) (McLean, J., concurring).
Rather, when a treaty’s words “are susceptible of a
more extended meaning than their plain import,” we must
assign them that meaning.
Ibid. Our duty, this Court has
repeatedly explained, lies in interpreting Indian treaties
“in a spirit which generously recognizes the full obligation
of this [N]ation.”
Tulee v.
Washington,
315 U.S.
681, 684–685 (1942); see also
United States v.
Winans,
198 U.S.
371, 380–381 (1905);
Choctaw Nation v.
United
States,
119 U.S.
1, 27–28 (1886). We sometimes call this interpretive
maxim—really just a special application of ordinary
contract-interpretation principles—the Indian canon. See F.
Cohen, Handbook of Federal Indian Law §2.02, p. 119 (N.
Newton ed. 2005); R. Collins, Never Construed to Their Prejudice:
In Honor of David Getches, 84 U. Colo. L. Rev. 1, 6–7
(2013).
With time, too, these interpretive insights have
yielded some more concrete rules. First, courts must “give
effect to the terms” of treaties as “the Indians
themselves would have understood them.”
Minnesota v.
Mille Lacs Band of Chippewa Indians,
526
U.S. 172, 196 (1999); see also
Tulee, 315 U. S., at
684. Second, to gain a complete view of the Tribes’
understanding, courts may (and often must) “look beyond the
written words to the larger context that frames the Treaty.”
Mille Lacs Band, 526 U. S., at 196. That includes
taking stock of “the history of the treaty, the negotiations,
and the practical construction adopted by the parties.”
Choctaw Nation v.
United States,
318 U.S.
423, 432 (1943). Third, courts must assume into those treaties
a duty of “good faith” on the part of the United States
to “protec[t]” the Tribes and their ways of life. See
Washington State Commercial Passenger Fishing Vessel Assn.,
443 U. S., at 666–667.
It is easy to see the purchase these rules have
for reservation-creating treaties like the one at issue in this
case. Treaties like that almost invariably designate property as a
permanent home for the relevant Tribe. See
McGirt v.
Oklahoma, 591 U. S. ___, ___ (2020) (slip op., at 5).
And the promise of a permanent home necessarily implies certain
benefits for the Tribe (and certain responsibilities for the United
States). One set of those benefits and responsibilities concerns
water. This Court long ago recognized as much in
Winters v.
United States,
207 U.S.
564 (1908).
That case involved the Milk River, which flows
along the northern border of the Fort Belknap Reservation.
Id., at 565–567 (statement of McKenna, J.). Upstream
landowners invested their own resources to build dams and
reservoirs which indirectly deprived the Tribes living on the
reservation of water by reducing the volume available downstream.
Id., at 567. The United States sued on the Tribes’
behalf to enjoin the landowners’ actions.
Id., at 565.
In assessing the government’s claim, the Court looked to the
agreement establishing that reservation and found no language
speaking to the Tribes’ water rights at all.
Id., at
575–576. Nevertheless, the Court concluded, the agreement
reserved water rights for the Tribes in the Milk River and found
for the government.
Id., at 577. The Court considered it
inconceivable that, having once enjoyed “beneficial
use” of nearby waters, the Tribes would have contracted to
“give up all th[at].”
Id., at 576. After all,
the lands described in the reservation “were arid and,
without irrigation, were practically valueless,” and
“communities could not be established” without access
to adequate water.
Ibid. (internal quotation marks omitted).
For these reasons, the agreement’s provisions designating the
land as a permanent home for the Tribes necessarily implied that
the Tribes would enjoy continued access to nearby sources of water.
Ibid. A contrary reading, the Court said, would
“impair or defeat” the parties’ agreement.
Id., at 577.
While
Winters involved a claim brought by
the United States, the federal government asserted “the
rights of the Indians” themselves.
Id., at 576. This
Court’s subsequent cases have confirmed as much. In
United
States v.
Powers,
305 U.S.
527 (1939), for instance, this Court cited
Winters as
authority for its holding that a different treaty impliedly
“reserved” waters “for the equal benefit
of
tribal members.”
Id., at 532 (emphasis added). So
when the reservation was dissolved and the land allotted,
“the right to use some portion of tribal waters essential for
cultivation passed
to the owners” of the individual
plots of land.
Ibid. (emphasis added). Later, in
Arizona
I, this Court described
Winters as standing for the
principle that “the Government, when it create[s an] Indian
Reservation, intend[s] to deal fairly with the Indians by reserving
for them the waters without which their lands would have
been useless.” 373 U. S., at 600 (emphasis added).
Congress would not “creat[e] an Indian Reservation without
intending to reserve waters necessary to make the reservation
livable.”
Id., at 559.
Sometimes the United States may hold a
Tribe’s water rights in trust. When it does, this Court has
recognized, the United States must manage those water rights
“[a]s a fiduciary,”
Arizona v.
California,
460 U.S.
605, 626–627 (1983) (
Arizona II ), one held
to “the most exacting fiduciary standards,”
Seminole
Nation, 316 U. S., at 297. This is no special rule.
“[F]iduciary duties characteristically attach to
decisions” that involve “managing [the] assets and
distributing [the] property” of others.
Pegram v.
Herdrich,
530 U.S.
211, 231 (2000). It follows, then, that a Tribe may bring an
action in equity against the United States for “fail[ing] to
provide an accurate accounting of ” the water rights it
holds on a Tribe’s behalf.
United States v.
Tohono
O’odham Nation,
563 U.S.
307, 318 (2011). After all, it is black-letter law that a
plaintiff may seek an accounting “whenever the defendant is a
fiduciary who has been entrusted with property of some kind
belonging to the plaintiff,” even if the defendant is not
“express[ly]” named a “trustee.” J.
Eichengrun, Remedying the Remedy of Accounting, 60 Ind. L. J.
463, 468–469, and n. 18 (1985) (noting cases); see also
A. Newman, G. Bogert, & G. Bogert, Law of Trusts and Trustees
§967, p. 201 (3d ed. 2010) (“fiduciary relationship [is]
sufficient to support an action for an accounting” whenever
the fiduciary exercises “discretion over trust”
assets).
B
With these principles in mind, return to the
Navajo’s case and start with the most basic terms of the
parties’ agreement. In signing the Treaty of 1868, the Navajo
agreed to “relinquish all right to occupy any territory
outside their reservation.” Art. IX, 15 Stat. 670. In
exchange, the Navajo were entitled to “make the reservation
. . . their permanent home.” Art. XIII,
id.,
at 671. Even standing alone, that language creates enforceable
water rights under
Winters. As both parties surely would
have recognized, no people can make a permanent home without the
ability to draw on adequate water. Otherwise, the Tribe’s
land would be “practically valueless,”
“defeat[ing] the declared purpose” of the Treaty.
Winters, 207 U. S., at 576–577.
Other clues make the point even more obvious.
Various features of the Treaty were expressly keyed to an
assumption about the availability of water. The United States
agreed to build certain structures “within said reservation,
where . . . water may be convenient.”
Art. III, 15 Stat. 668. Under the Treaty’s terms, too,
individual Navajo were entitled to select tracts of land within the
reservation to “commence farming” and for
“purposes of cultivation.” Art. V,
ibid. If
an individual could show that he “intend[ed] in good faith to
commence cultivating the soil for a living,” the Treaty
entitled him to “receive seeds and agricultural
implements.” Art. VII,
id., at 669. Similarly,
the Treaty promised large numbers of animals to the Tribe. Art.
XII,
id., at 670. Those guarantees take as a given that the
Tribe could access water sufficient to live, tend crops, and raise
animals in perpetuity.
As we have seen, “the history of the
treaty, the negotiations, and the practical construction adopted by
the parties” may also inform a treaty’s interpretation.
Choctaw Nation, 318 U. S., at 432. And here history is
particularly telling. Much of the Navajo’s plight at Bosque
Redondo owed to both the lack of water and the poor quality of what
water did exist. General Sherman appreciated this point and
expressly raised the availability of water in his negotiations with
the Tribe. Treaty Record 5. Doubtless, he did so because everyone
had found the water at Bosque Redondo insufficient and because the
Navajo’s strong desire to return home rested in no small part
on the availability of water there.
Id., at 3, 8. Because
the Treaty of 1868 must be read as the Navajo “themselves
would have understood” it,
Mille Lacs Band, 526
U. S., at 196, it is impossible to conclude that water rights
were not included. Really, few points appear to have been
more central to both parties’ dealings.
What water rights does the Treaty of 1868 secure
to the Tribe? Remarkably, even today no one knows the answer. But
at least we know the right question to ask: How much is required to
fulfill the purposes of the reservation that the Treaty of 1868
established? See
Nevada v.
United States,
463 U.S.
110, 116, n. 1 (1983) (citing cases). We know, too, that a
Tribe’s
Winters rights are not necessarily limited to
the water sources found within the corners of their reservation.
Winters itself involved a challenge to the misappropriation
of water by upstream landowners from a river that ran along the
border of tribal lands. 207 U. S., at 576
. And here the
Navajo’s Reservation likewise stands adjacent to a long
stretch of the Colorado River flowing through both its Upper and
Lower Basins. App. 91. Finally, we know that “it is
impossible to believe that when . . . the Executive
Department of this Nation created the [various] reservations”
in the arid Southwest it was “unaware that . . .
water from the [Colorado R]iver would be essential to the life of
the Indian people and to the animals they hunted and the crops they
raised.”
Arizona I, 373 U. S., at 598–599.
Nor does the United States dispute any of this. To the contrary, it
acknowledges that the Navajo’s water rights very well
“may . . . include some portion of the
mainstream of the Colorado” that runs adjacent to their
reservation. Tr. of Oral Arg. 33.
For our purposes today, that leaves just one
question: Can the Tribe state a legally cognizable claim for relief
asking the United States to assess what water rights they have? Not
even the federal government seriously disputes that it acts
“as a fiduciary” of the Tribes with respect to tribal
waters it manages.
Arizona II, 460 U. S., at
627–628. Indeed, when it comes to the Navajo, the United
States freely admits that it holds certain water rights for the
Tribe “in trust.” Tr. of Oral Arg. 40. And of course,
that must be so given that the United States exercises pervasive
control over much water in the area, including in the adjacent
Colorado River. See
Arizona I, 373 U. S., at
564–565.
Those observations suffice to resolve
today’s dispute. As we have seen, that exact coupling—a
fiduciary relationship to a specific group and complete managerial
control over the property of that group—gives rise to a duty
to account. See
supra, at 16–17. The United States, we
know, must act in a “legally [a]dequate” way when it
comes to the Navajo’s water it holds in trust.
Arizona
II, 460 U. S., at 627. It follows, as the United States
concedes, that the federal government could not
“legally” dam off the water flowing to their
Reservation, as doing so would “interfere with [the
Tribe’s] exercise of their” water rights. Tr. of Oral
Arg. 13. Implicit in that concession is another. Because
Winters rights belong to the Navajo themselves, the United
States cannot lawfully divert them elsewhere—just as a lawyer
cannot dispose of a client’s property entrusted to him
without permission. And the
only way to ensure compliance
with that obligation is to give the Tribe just what they
request—an assessment of the water rights the federal
government holds on the Tribe’s behalf.
III
The Court does not dispute most of this. It
agrees that the Navajo enjoy “water rights implicitly
reserved to accomplish the purpose of the reservation.”
Ante, at 2. It agrees that the United States cannot lawfully
interfere with those water rights.
Ante, at 2, 6, 7. And it
leaves open the possibility that the Navajo “may be able to
assert the interests they claim in water rights litigation.”
Ante, at 12. Really, the Court gets off the train just one
stop short. It insists (and then repeats—again and again)
that the United States owes no “affirmative duty” to
the Navajo with respect to water, and therefore does not need to
take any “affirmative steps” to help the Tribe on that
score.
Ante, at 2, 6–13. This reasoning reflects three
errors.
A
The Court begins by misapprehending the nature
of the Navajo’s complaint. Though it never quite cashes out
what the phrase “affirmative steps” means, the Court
appears concerned that allowing this complaint to proceed could
result in a court order requiring the United States to
“buil[d] pipelines, pumps, wells, or other water
infrastructure.”
Ante, at 2, 6, 7. More than that, the
Court worries that—if a lower court finds that the United
States has any water-related responsibilities to the
Tribe—the federal government might even eventually find
itself on the hook to “farm land, mine minerals, harvest
timber, build roads, or construct bridges on the
reservation.”
Ante, at 13; see also
ante, at
9.
The Tribe’s lawsuit asks for nothing of
the sort. The Tribe expressly disavows any suggestion that,
“as a matter of treaty interpretation . . . the
United States is legally obligated to pay for pipelines or
aquifers,” for example. Tr. of Oral Arg. 78. Instead and
again, the Tribe’s complaint seeks simply to “compel
the Federal Defendants to determine the water required to
. . . fulfill the promise[s]” made to them under
the Treaty of 1868. App. 86. Only if the United States is, in fact,
“
interfer[ing] with [their] reserved water
rights” in some way,
ante, at 6, could the Tribe then
ask the federal government to “devise a plan” for
achieving compliance with its obligations, App. 86. And, for all
anyone presently can tell, the United States may be interfering in
just that way. Asking the federal government to assess what it
holds in trust and to ensure that it is not misappropriating water
that belongs to the Tribe has nothing to do with building pipelines
or farming land.
B
Having mistaken the nature of the
Navajo’s complaint, the Court proceeds next to analyze it
under the wrong legal framework. Citing cases like
United
States v.
Jicarilla Apache Nation,
564 U.S.
162 (2011);
United States v.
Navajo Nation,
537 U.S.
488 (2003) (
Navajo I); and
United States v.
Mitchell,
445 U.S.
535 (1980) (
Mitchell I), the Court tries to hammer a
square peg (the Navajo’s request) through a round hole (our
Tucker Acts framework). See
ante, at 7–9, and
n. 1. To understand why those cases are inapposite, a little
background is in order.
When an Indian Tribe seeks damages from the
United States, it must usually proceed under the terms of the
Tucker Act, 28 U. S. C. §1491, and the Indian Tucker
Act, §1505. Together, those provisions facilitate suits for
money damages in the Court of Federal Claims for claims
“arising under the Constitution, laws or treaties of the
United States, or Executive orders of the President.”
Ibid. Notably, however, the Tucker Acts provide only a
selective waiver of sovereign immunity, not a cause of action. To
determine whether a Tribe can seek money damages on any given
claim, this Court has laid out a two-part test. First, a court must
ascertain whether there exists “specific rights-creating or
duty-imposing statutory or regulatory prescriptions,”
Navajo I, 537 U. S., at 506, producing a scheme
that bears the “hallmarks of a more conventional fiduciary
relationship,”
United States v.
White Mountain
Apache Tribe,
537 U.S.
465, 473 (2003). Second, once a Tribe has identified such a
provision, the court must use “trust principles” to
assess whether (and in what amount) the United States owes damages.
United States v.
Navajo Nation,
556 U.S.
287, 301 (2009) (
Navajo II ).
To describe this regime is to explain why the
Court errs in relying on it. The Navajo do not bring a claim for
money damages in the Court of Federal Claims under the Tucker Acts
(thereby implicating those Acts’ selective waiver of
sovereign immunity). Rather, the Navajo seek equitable relief in
federal district court on a treaty claim governed by the familiar
principles recounted above. See
supra, at 12–17. They
do so with the help of 28 U. S. C. §1362, a
provision enacted
after the Tucker Acts that gives federal
district courts “original jurisdiction” over
“civil actions” brought by Tribes “under the
Constitution, laws, or treaties of the United States.”
Ibid.; see also Brief for Historians as
Amici Curiae
31. As this Court has noted, §1362 serves “to open the
federal courts to the kind of claims that could have been brought
by the United States as trustee, but for whatever reason were not
so brought.”
Moe, 425 U. S., at 472. That
perfectly summarizes the claim that the Navajo advance here—a
treaty-based claim bottomed on
Winters that all agree the
United States could bring in its capacity as a trustee. Nor does
anyone question that the United States has waived sovereign
immunity for claims “seeking relief other than money
damages” based on an allegation that federal officials have
“acted or failed to act” as the law requires. 5
U. S. C. §702.
This Court’s decisions have long
recognized that claims for equitable relief in federal district
court operate under a distinct framework than claims for money
damages brought in the Court of Federal Claims under the Tucker
Acts. In
United States v.
Mitchell,
463 U.S.
206 (1983) (
Mitchell II ), for example, the United
States argued that the Court should not allow an action for damages
under the Tucker Acts to proceed because the plaintiffs could have
brought a
separate “actio[n] for declaratory,
injunctive, or mandamus relief against the Secretary” in
federal district court.
Id., at 227. This Court agreed with
the government’s assessment that the plaintiffs could have
brought a claim like that—even as it went on to hold that
they were free to bring a damages action under the Tucker Acts
framework too.
Ibid.
Lower courts have appreciated all this as well.
As they have observed, nothing in the Tucker Acts or our decisions
applying them “impl[ies] that [Tribes] are not [separately]
entitled to declaratory or injunctive relief ” under
other laws or treaties and the traditional framework described
above.
Cobell v.
Norton,
240 F.3d 1081, 1101 (CADC 2001); see also
Loudner v.
United States,
108 F.3d 896, 899 (CA8 1997). Consistent with this approach,
they have frequently allowed Tribes to bring freestanding claims
seeking to enforce treaty obligations—including water-related
ones. See,
e.g., Pyramid Lake Paiute Tribe of Indians
v.
Morton,
354 F. Supp. 252, 256 (DC 1973) (requiring the Secretary of the
Interior to “justify any diversion of water from the Tribe
with precision”); see also
Northwest Sea Farms, Inc.
v.
United States Army Corps of Engineers,
931 F. Supp. 1515, 1520 (WD Wash. 1996) (“In carrying out
its fiduciary duty, it is the government’s . . .
responsibility to ensure that Indian treaty rights are given full
effect”). The cases the Court relies on simply do not enter
the picture.
C
After misreading the Navajo’s request
and applying the wrong analytical framework, the Court errs in one
last way. It reaches the wrong result even under this Court’s
Tucker Acts framework. The second step of the analysis—using
“trust principles” to sort out the damages the United
States owes,
Navajo II, 556 U. S., at 301—clearly
has no purchase in this context. (Another tell that the Tucker Acts
framework itself has no purchase.) But what about the first step?
Historically, this Court’s cases have distinguished between
regulatory schemes that create “bare trusts” (that
cannot sustain actions for damages) and a
“conventional” trust (that can make the government
“liable in damages for breach” under the Tucker Acts).
White Mountain Apache Tribe, 537 U. S., at
473–474; see
ante, at 9. A close look at those
decisions suggests that, even under them, the Tribe’s claim
should be allowed to proceed.
Take
Mitchell II as an example. There,
this Court allowed a claim for money damages relating to the
mismanagement of tribal forests. On what basis? A patchwork of
statutes and regulations, along with some assorted representations
by the Department of the Interior. 463 U. S., at
219–224. In holding this showing sufficient to support an
action for money damages, this Court observed that, “where
the Federal Government takes on or has control” of property
belonging to a Tribe, the necessary “fiduciary relationship
normally exists . . . even though nothing is said
expressly” about “a trust or fiduciary
connection.”
Id., at 225 (internal quotation marks
omitted). Further, where the federal government has “full
responsibility” to manage a resource or “elaborate
control” over that resource, the requisite “fiduciary
relationship
necessarily arises.”
Id., at
224–225 (emphasis added). Statements by the United States
“recogniz[ing]” a fiduciary duty, the Court explained,
can help confirm as much too.
Id., at 224.
Consider
White Mountain Apache Tribe as
well. There, this Court allowed a claim for money damages based on
the United States’ breach of its “fiduciary duty to
manage land and improvements” on a reservation. 537
U. S., at 468. The Tribe defended the right to bring that
claim by pointing to a statute declaring certain lands would be
“ ‘held by the United States in
trust’ ” for the Tribe and allowing the Secretary
of the Interior to use “ ‘any
part’ ” of those lands “ ‘for
administrative or school purposes.’ ”
Id.,
at 469. In holding that statute sufficient to support a claim for
money damages, this Court emphasized the United States exercised
authority over the assets at issue and had considerable
“discretionary authority” over their use.
Id.,
at 475.
Held even to these yardsticks, the
Navajo’s complaint easily measures up. Our
Winters
decisions recognize that the United States holds reserved water
rights “[a]s a
fiduciary” for the Tribes.
Arizona II, 460 U. S., at 627–628 (emphasis
added). The United States’ control over adjacent water
sources—including the Colorado River—is
“elaborate.”
Mitchell II. 463 U. S., at
225; see also
Arizona I, 373 U. S., at
564–565;
White Mountain Apache Tribe, 537 U. S.,
at 475. It can dole out water in parts of the Colorado by contract.
43 U. S. C. §617d. And, of course, the United States
has expressly acknowledged that it holds water rights “in
trust” for the Navajo, see Brief for Federal Parties 37; Tr.
of Oral Arg. 40, perhaps including rights in the Colorado River
mainstream,
id., at 33. Given these features, the
Navajo’s complaint more than suffices to state a claim for
relief.
IV
Where do the Navajo go from here? To date,
their efforts to find out what water rights the United States holds
for them have produced an experience familiar to any American who
has spent time at the Department of Motor Vehicles. The Navajo have
waited patiently for someone, anyone, to help them, only to be told
(repeatedly) that they have been standing in the wrong line and
must try another. To this day, the United States has never denied
that the Navajo may have water rights in the mainstream of the
Colorado River (and perhaps elsewhere) that it holds in trust for
the Tribe. Instead, the government’s constant refrain is that
the Navajo can have all they ask for; they just need to go
somewhere else and do something else first.
The Navajo have tried it all. They have written
federal officials. They have moved this Court to clarify the United
States’ responsibilities when representing them. They have
sought to intervene directly in water-related litigation. And when
all of those efforts were rebuffed, they brought a claim seeking to
compel the United States to make good on its treaty obligations by
providing an accounting of what water rights it holds on their
behalf. At each turn, they have received the same answer:
“Try again.” When this routine first began in earnest,
Elvis was still making his rounds on The Ed Sullivan Show.
If there is any silver lining here it may be
this. While the Court finds the present complaint lacking because
it understands it as seeking “affirmative steps,” the
Court does not pass on other potential pleadings the Tribe might
offer, such as those alleging direct interference with their water
rights. Importantly, too, the Court recognizes that the Navajo
“may be able to assert the interests they claim in water
rights litigation, including by seeking to intervene in cases that
affect their claimed interests.”
Ante, at 12. After
today, it is hard to see how this Court (or any court) could ever
again fairly deny a request from the Navajo to intervene in
litigation over the Colorado River or other water sources to which
they might have a claim. Principles of estoppel, if nothing else,
may have something to say about the United States’ ability to
oppose requests like that moving forward. Cf.
United States
v.
Louisiana,
394 U.S.
11, 73–74, n. 97 (1969). All of which leaves the
Navajo in a familiar spot. As they did at Bosque Redondo, they must
again fight for themselves to secure their homeland and all that
must necessarily come with it. Perhaps here, as there, some measure
of justice will prevail in the end.