Hopi Tribe v. United States ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
THE HOPI TRIBE,
a federally recognized Indian Tribe,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-5018
______________________
Appeal from the United States Court of Federal
Claims in No. 1:12-CV-00045, Judge Lawrence J. Block.
______________________
Decided: April 2, 2015
______________________
MICHAEL DAVID GOODSTEIN, Hunsucker Goodstein PC,
Washington, DC, argued for plaintiff-appellant.
ELLEN J. DURKEE, Environment and Natural Re-
sources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by ROBERT G. DREHER.
______________________
Before LOURIE, CHEN, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
2 HOPI TRIBE v. US
The Hopi Tribe filed suit against the United States in
the Court of Federal Claims seeking damages to cover the
cost of providing safe drinking water on the Hopi Reserva-
tion. In order to invoke the trial court’s jurisdiction, the
Hopi Tribe must identify a statute or regulation imposing
a specific obligation on the United States to provide
adequate drinking water that would give rise to a claim
for money damages. Because the Court of Federal Claims
properly concluded that the Hopi Tribe failed to identify
any source for a money-mandating obligation, we affirm.
I
The Hopi Tribe is a federally recognized Indian tribe
that occupies a reservation of land in northeastern Arizo-
na. President Chester Arthur first established the reser-
vation by executive order in 1882 (the Executive Order).
The Executive Order declared the land would be “with-
drawn from settlement and sale, and set apart for the use
and occupancy of the [Hopi] and other such Indians as the
Secretary of the Interior may see fit to settle thereon.”
See I Charles J. Kappler, Indian Affairs: Laws and Trea-
ties 805 (1904). Congress ratified the Executive Order in
the Act of July 22, 1958, Pub. L. No. 85–547, 72 Stat. 403(1958). The Act provides that:
[L]ands described in the Executive order dated
December 16, 1882, are hereby declared to be held
by the United States in trust for the Hopi Indians
and such other Indians, if any, as heretofore have
been settled thereon by the Secretary of the Inte-
rior pursuant to such Executive order.
Id.The present dispute relates to the quality of drinking
water on the Hopi Reservation. The public water systems
on the reservation rely on groundwater drawn from
subsurface layers of water-bearing rock. The Hopi Tribe
alleges that the public water systems serving five com-
HOPI TRIBE v. US 3
munities on the eastern portion of the reservation contain
unsafe levels of arsenic that exceed the federally allowed
maximum. See 40 C.F.R. § 141.62 (setting a maximum
contaminant level of 10 micrograms per liter). Arsenic is
a toxic chemical that occurs naturally in rock and soils.
Office of Ground Water and Drinking Water, Envt’l Prot.
Agency, Complying With the Revised Drinking Water
Standard for Arsenic: Small Entity Compliance Guide 3
(August 2002), available at
http://water.epa.gov/lawsregs/rulesregs/sdwa/arsenic/Com
pliance.cfm. According to the Hopi Tribe, arsenic can
cause bladder, lung, and skin cancer; as well as harm to
the nervous system, heart, and blood vessels.
The Hopi Tribe alleges the United States funded and
provided technical assistance for the construction of many
of the wells that supply contaminated groundwater.
Currently, the Hopi Tribe owns and operates the public
water systems serving four of the affected communities—
Mishongnovi, Polacca, Sipaulovi, and Shungopavi. The
Department of the Interior, Bureau of Indian Affairs
(BIA), owns and operates the system serving the fifth
community, Keams Canyon.
The Hopi Tribe filed a complaint against the United
States in the Court of Federal Claims seeking damages to
cover the cost of providing alternative sources of drinking
water in all five communities. The Court of Federal
Claims dismissed the complaint, finding the Hopi Tribe
failed to establish jurisdiction under the Indian Tucker
Act. The Court of Federal Claims also denied the Hopi
Tribe’s request for jurisdictional discovery. The Hopi
Tribe appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
II
We review de novo a grant or denial of a motion to
dismiss for lack of jurisdiction. Bell/Heery v. United
States, 739 F.3d 1324, 1330 (Fed. Cir. 2014). “A plaintiff
4 HOPI TRIBE v. US
bears the burden of establishing subject-matter jurisdic-
tion by a preponderance of the evidence.” M. Maropakis
Carpentry, Inc. v. United States, 609 F.3d 1323, 1327
(Fed. Cir. 2010).
The Court of Federal Claims’ jurisdiction over suits
against the United States is limited by the doctrine of
sovereign immunity. The United States may not be sued
without its consent. United States v. Navajo Nation, 556
U.S. 287, 289 (2009) (Navajo II). The United States has
waived sovereign immunity in various statutes, including
the Indian Tucker Act. United States v. Mitchell, 463 U.S.
206, 212 (1983) (Mitchell II). The Indian Tucker Act
provides that the Court of Federal Claims shall have
jurisdiction over claims against the United States by
Indian tribes:
[W]henever such claim is one arising under the
Constitution, laws or treaties of the United States,
or Executive orders of the President, or is one
which otherwise would be cognizable in the Court
of Federal Claims if the claimant were not an In-
dian tribe, band, or group.
28 U.S.C. § 1505. The final clause—“one which otherwise
would be cognizable”—refers to the waiver of sovereign
immunity in the Tucker Act, which gives the Court of
Federal Claims jurisdiction over any claim “founded
either upon the Constitution, or any Act of Congress or
any regulation of an executive department, or upon any
express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding
in tort.” 28 U.S.C. § 1491(a)(1).
Although the Indian Tucker Act waives sovereign
immunity by granting jurisdiction over certain claims, it
does not itself create any substantive rights. Navajo II,
556 U.S. at 290. The Indian tribe must assert a claim
arising out of other sources of law specified in the Act,
HOPI TRIBE v. US 5
such as a statute or contract. Id. And not any claim
arising out of these sources of law will do. “The claim
must be one for money damages against the United States
. . . and the claimant must demonstrate that the source of
substantive law he relies upon can fairly be interpreted as
mandating compensation by the Federal Government for
damages sustained.” Mitchell II, 463 U.S. at 216–17
(citations and internal quotation marks omitted).
Accordingly, the Supreme Court has established a
two-part test for determining jurisdiction under the
Indian Tucker Act. First, the claimant “must identify a
substantive source of law that establishes specific fiduci-
ary or other duties, and allege that the Government has
failed to faithfully perform those duties.” Navajo II, 556
U.S. at 290. Second, “[i]f that threshold is passed, the
court must then determine whether the substantive
source of law can be fairly interpreted as mandating
compensation for damages sustained as a result of a
breach of the duties [the governing law] impose[s].” Id. at
290–91 (alterations in original) (internal quotation marks
omitted).
At the first step, a statute or regulation that recites a
general trust relationship between the United States and
the Indian People is not enough to establish any particu-
lar trust duty. United States v. Mitchell, 445 U.S. 535,
542–44 (1980) (Mitchell I) (finding a statutory provision
declaring land to be held “in trust for the sole use and
benefit of the [Indian owner]” did not by virtue of using
trust language impose any specific duty to manage timber
resources on the land). “[T]he organization and manage-
ment of the trust is a sovereign function subject to the
plenary authority of Congress.” United States v. Jicarilla
Apache Nation, 131 S. Ct. 2313, 2323 (2011). According-
ly, the United States is only subject to those fiduciary
duties that it specifically accepts by statute or regulation.
Id. at 2325; United States v. Navajo Nation, 537 U.S. 488,
6 HOPI TRIBE v. US
506 (2003) (Navajo I) (“[T]he analysis must train on
specific rights-creating or duty-imposing statutory or
regulatory prescriptions.”).
To establish that the United States has accepted a
particular fiduciary duty, an Indian tribe must identify
statutes or regulations that both impose a specific obliga-
tion on the United States and “bear[] the hallmarks of a
conventional fiduciary relationship.” Navajo II, 556 U.S.
at 301 (internal quotation marks omitted). In Mitchell II,
the Supreme Court addressed statutes and regulations
granting the Secretary of the Interior the exclusive au-
thority to sell or approve the sale of timber on allotted
Indian lands. 463 U.S. at 220. The statutes and regula-
tions detailed “comprehensive responsibilities of the
Federal Government in managing the harvesting of
Indian timber,” id. at 222 (internal quotation marks
omitted), which addressed “virtually every aspect of forest
management,” id. at 220. Further, the statute required
the Secretary to consider “the needs and best interests of
the Indian owner and his heirs” and to return proceeds
from the sales to the Indian owners or “dispose[] of [them]
for their benefit.” Id. at 224; see 25 U.S.C. § 406(a).
Based on this trust-evoking language and the statutory
and regulatory prescriptions giving the United States
“full responsibility” over Indian resources, the Supreme
Court found that Congress had accepted a fiduciary duty
to manage timber resources according to those specific
prescriptions. Mitchell II, 463 U.S. at 224–25.
Similarly, in United States v. White Mountain Apache
Tribe, 537 U.S. 465, 475 (2003), the Supreme Court
inferred that Congress accepted a fiduciary duty to pre-
serve improvements to Indian land that it actually used.
A statute simultaneously declared the land to be “held by
the United States in trust” and authorized the United
States to use the land exclusively. Id. This combination
evoked the “commonsense assumption,” confirmed by
HOPI TRIBE v. US 7
principles of trust law, that “a fiduciary actually adminis-
tering trust property may not allow it to fall into ruin on
his watch.” Id. Thus, by using trust language in con-
junction with an authorization of plenary control of the
land, Congress clearly accepted a fiduciary duty to exer-
cise that authority with the care charged to a trustee at
common law.
Although the Supreme Court in White Mountain
Apache “looked to common-law principles to inform [its]
interpretation of [the] statute . . . [,]” Jicarilla, 131 S. Ct.
at 2325, it does not stand for the proposition that in every
case “express trust plus actual government control equals
enforceable trust duties” according to common-law princi-
ples. El Paso Nat. Gas Co. v. United States, 750 F.3d
863, 896 (D.C. Cir. 2014). The Supreme Court used
common-law trust principles in a more limited fashion. It
referred to common-law trust principles because the
statutory language evoked them, by combining trust
language and authorization to use the land in the same
provision. The Supreme Court thus inferred that Con-
gress intended to accept the common-law duty of a trustee
to preserve the land that it actually administers. See
White Mountain Apache, 537 U.S. at 475. As the Su-
preme Court’s subsequent decisions make clear, common-
law trust duties standing alone, including those premised
on control, are not enough to establish a particular fiduci-
ary duty of the United States. See Navajo II, 556 U.S. at
302 (“Because the Tribe cannot identify a specific, appli-
cable, trust-creating statute or regulation that the Gov-
ernment violated . . . [,] neither the Government’s ‘control’
over [trust resources] nor common-law trust principles
matter.”); Jicarilla, 131 S. Ct. at 2325 (“The government
assumes Indian trust responsibilities only to the extent it
expressly accepts those responsibilities by statute.”).
At the second step of the jurisdictional analysis, how-
ever, common-law trust principles come into play. If the
8 HOPI TRIBE v. US
Indian tribe identifies a specific duty, and that duty
“bears the hallmarks of a ‘conventional fiduciary relation-
ship’ . . . then trust principles (including any such princi-
ples premised on ‘control’) could play a role in ‘inferring
that the trust obligation [is] enforceable by damages.’”
Navajo II, 556 U.S. at 301 (quoting White Mountain
Apache, 537 U.S. at 473, 477) (alteration in original).
Indeed, the Supreme Court has stated that when a stat-
ute establishes specific fiduciary obligations, “it naturally
follows that the Government should be liable in damages
for the breach of its fiduciary duties. It is well established
that a trustee is accountable in damages for breaches of
trust.” Mitchell II, 463 U.S. at 226 (citing Restatement
(Second) of the Law of Trusts §§ 205–12 (1959)).
III
The Hopi Tribe alleges the United States has a fiduci-
ary duty to ensure adequate water quality on the Hopi
Reservation. The Hopi Tribe points to several sources of
law to establish this duty: (1) the Executive Order of 1882
and the Act of 1958, as interpreted under the Winters
doctrine; and (2) other scattered provisions authorizing
various agencies to promote safe drinking water on Indian
reservations. Because we find that these provisions do
not establish a fiduciary duty to ensure adequate drinking
water, we affirm the Court of Federal Claims’ dismissal
for lack of jurisdiction.
Neither the Act of 1958 nor the Executive Order of
1882 refers to drinking water on the reservation, much
less instructs the United States to manage drinking water
quality. Instead, the trust language in the Act of 1958,
which incorporates the Executive Order of 1882, is similar
to the limited trust language at issue in Mitchell I, 445
U.S. at 541–42. Compare Pub. L. 85-547, sec. 1 (setting
aside land “to be held by the United States in trust for the
Hopi Indians”), with 25 U.S.C. § 348 (declaring that “the
HOPI TRIBE v. US 9
United States does and will hold the land thus allotted . . .
in trust for the sole use and benefit of the Indian [allot-
tee]”). The Supreme Court found in Mitchell I that such
“bare” trust language is not sufficient to establish a
fiduciary duty to manage resources on the land. Mitchell
I, 445 U.S. at 541–42. The same is true of the bare trust
language here: it does not establish any particular fiduci-
ary duty to manage water resources on the land.
The Hopi Tribe asks us to read the Act of 1958 in light
of the Winters doctrine to find fiduciary duties regarding
water quality on the reservation. Under the Winters
doctrine, also known as the reserved-water-rights doc-
trine, when the United States reserves land for an Indian
tribe, it also by implication “reserves [the] amount of
water necessary to fulfill the purpose of the reservation.”
Cappaert v. United States, 426 U.S. 128, 141 (1976). This
reserved water right gives the United States the power to
exclude others from subsequently diverting waters that
feed the reservation. See Winters v. United States, 207
U.S. 564, 577–78 (1908) (upholding injunction granted to
United States in suit to prevent private parties from
building dams that diverted waters of the Milk River from
an Indian reservation). In some circumstances, it may
also give the United States the power to enjoin others
from practices that reduce the quality of water feeding the
reservation. See United States v. Gila Valley Irrigation
Dist., 920 F. Supp. 1444, 1454–55 (D. Ariz. 1996) (enjoin-
ing upstream junior appropriators from practices that
reduce quality of water feeding an Indian reservation,
pursuant to the Indian tribe’s water right under a prior
consent decree). It does not, however, give the United
States responsibility for the quality of water within the
reservation, independent of any third-party diversion or
contamination.
Thus, even if Congress intended the term “land” in
the Act of 1958 to include reserved water rights under the
10 HOPI TRIBE v. US
Winters doctrine, the Act still does not impose a fiduciary
duty to manage water quality on the Hopi Reservation,
absent third-party interference. At most, by holding
reserved water rights in trust, Congress accepted a fidu-
ciary duty to exercise those rights and exclude others
from diverting or contaminating water that feeds the
reservation. We cannot infer from this duty that Con-
gress further intended the United States to be responsible
for providing water infrastructure and treatment needed
to eliminate naturally occurring contaminants such as
arsenic.
Finally, the Hopi Tribe points to several other statu-
tory provisions that involve the United States in the
provision of drinking water on the Hopi Reservation. The
Indian Health Improvement Act, 25 U.S.C. § 1632(a)(5),
states that “it is the policy of the United States, that all
Indian communities and Indian homes . . . be provided
with safe and adequate water supply systems and sani-
tary sewage waste disposal systems as soon as possible.”
Section 1632 authorizes the Secretary of the Interior to
provide technical and management assistance in the
building and operation of sanitation facilitates. 25 U.S.C.
§ 1632(b). Similarly, the Indian Sanitation Facilities Act
authorizes the Indian Health Service (IHS) “to construct,
improve, extend, or otherwise provide and maintain . . .
domestic and community water supplies and facilities . . .
for Indian homes, communities and lands.” 42 U.S.C.
§ 2004a(a)(1). Another statute directs the IHS to “provide
health promotion . . . services to Indians,” 25 U.S.C.
§ 1621b(a), which is defined to include “making available
safe water and sanitary facilities.” 25 U.S.C.
§ 1603(11)(D). Finally, several statutes appropriate
funding for the extension, operation, and maintenance of
HOPI TRIBE v. US 11
water supplies on Indian lands. See 25 U.S.C. §§ 13,
631(9). 1
The Hopi Tribe “does not rely on these statutes as the
source of substantive law listing specific duties that the
government failed to perform.” Appellant’s Reply Br. at
28. Rather, the Hopi Tribe argues that these statutes
demonstrate that the United States exercises comprehen-
sive control over water resources on the Hopi Reservation,
and that the United States’ actions are taken pursuant to
congressional authorization. The Hopi Tribe argues that
under Mitchell II and White Mountain Apache, therefore,
the statutes show Congress accepted the common-law
trust duty “to maintain, protect, repair and preserve the
trust property” that the United States actually manages
and controls. White Mountain Apache, 537 U.S. at 469.
The Supreme Court has made clear that “[t]he Feder-
al Government’s liability cannot be premised on control
alone.” Navajo II, 556 U.S. at 301. Regardless of the
United States’ actual involvement in the provision of
drinking water on the Hopi Reservation, we cannot infer
from that control alone that the United States has accept-
ed a fiduciary duty to ensure adequate water quality on
the reservation. 2 Any common-law duties applicable to a
1 The Hopi Tribe also cites a statute detailing the
United States’ trust responsibilities in managing tribal
funds and investments, which are not relevant to the
management of drinking water quality on the reservation.
See 25 U.S.C. § 162a(d)(8).
2 For this reason, we also find the Court of Federal
Claims properly denied the Hopi Tribe’s request for
jurisdictional discovery relating to the United States’
control over water resources on the reservation. Further
evidence of actual control would not change the jurisdic-
tional analysis.
12 HOPI TRIBE v. US
private trustee when the trustee actually controls trust
property are not relevant, unless they are clearly accepted
by statute or regulation.
Unlike the statutory provision at issue in White
Mountain Apache, 537 U.S. at 475, the statutory provi-
sions asserted here cannot be interpreted to accept a
common-law trust duty to preserve trust property that the
trustee actually administers. The Supreme Court identi-
fied a common-law trust duty in White Mountain Apache
because the statute—by simultaneously using trust
language and authorizing exclusive use of the land—
evoked common-law trust principles, leading to the infer-
ence that Congress intended to accept that particular
trust duty. Id. Here, there is no such indication. Con-
gress created a bare trust in the Act of 1958 and, sepa-
rately, authorized certain actions to assist the Hopi Tribe
in providing safe drinking water. None of these later
provisions use trust language that might evoke common-
law principles. Nor do they collectively authorize the kind
of plenary control the Supreme Court found significant in
White Mountain Apache, 537 U.S. at 476, and Mitchell II,
463 U.S. at 224. They only require the United States to
assist in the provision of safe drinking water, and do not
restrict the Hopi Tribe from managing the resource itself.
Accordingly, we cannot infer from the trust language in
the Act of 1958, combined with separate and scattered
obligations to help provide safe drinking water, that
Congress has “expressly accepted” a common-law fiduci-
ary duty to manage water resources. Jicarilla, 131 S. Ct.
at 2325.
Nor does Mitchell II suggest the United States has ac-
cepted a common-law fiduciary duty to manage water
resources. The statutes asserted here do not give the kind
of “full responsibility” and “elaborate control” over water
resources that the Supreme Court found to support a
fiduciary relationship regarding timber resources in
HOPI TRIBE v. US 13
Mitchell II, 463 U.S. at 224–25. Moreover, the Supreme
Court in Mitchell II did not find Congress accepted un-
specified common-law fiduciary obligations on the basis of
control alone, as the Hopi Tribe argues here. Rather, the
Supreme Court found that, in light of that elaborate
control and the trust language in the statutes, Congress
intended the specific prescriptions listed in those statutes
and regulations to constitute fiduciary obligations, en-
forceable in a suit for damages. Id. at 226 (“[T]he statutes
and regulations at issue in this case clearly establish
fiduciary obligations of the Government in the manage-
ment and operation of Indian lands and resources . . . .”).
Thus, Mitchell II does not allow us to depart from the
Supreme Court’s repeated admonition that the United
States is not subject to common-law trust duties, includ-
ing any duties premised on control, unless it “expressly
accepts those responsibilities by statute.” Jicarilla, 131
S. Ct. at 2325.
In sum, the sources of law relied on by the Hopi Tribe
do not establish a specific fiduciary obligation on the
United States to ensure adequate water quality on the
Hopi Reservation. Because the Hopi Tribe has failed to
“identify a specific, applicable, trust-creating statute or
regulation that the [United States] violated,” Navajo II,
556 U.S. at 302, we do not need to reach the second step
of the jurisdictional inquiry—whether the specific obliga-
tion is money mandating. We conclude the Court of
Federal Claims does not have jurisdiction over the Hopi
Tribe’s claim under the Indian Tucker Act.
IV
We understand that water quality on parts of the Ho-
pi Reservation is unacceptable, due in part to insufficient
funds for new water infrastructure. But the Supreme
Court’s decisions are controlling in this case. Because the
Hopi Tribe has not identified a money-mandating obliga-
14 HOPI TRIBE v. US
tion that the United States allegedly violated, we must
affirm the Court of Federal Claims’ dismissal of this suit
for lack of jurisdiction under the Indian Tucker Act.
AFFIRMED
No costs.