Arizona v. Navajo Nation ( 2023 )

(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ARIZONA ET AL. v. NAVAJO NATION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 21–1484. Argued March 20, 2023—Decided June 22, 2023*
An 1868 peace treaty between the United States and the Navajo Tribe
established the Navajo Reservation that today spans some 17 million
acres, almost entirely in the Colorado River Basin of the western
United States. The Federal Government’s reservation of land for an
Indian tribe implicitly reserves the right to use needed water from var-
ious sources—such as groundwater, rivers, streams, lakes, and
springs—that arise on, border, cross, underlie, or are encompassed
within the reservation. See Winters v. United States, 207 U. S. 564,
576–577. While the Tribe has the right to use needed water from the
reservation’s numerous water sources, the Navajos face the same wa-
ter scarcity problem that many in the western United States face. In
the Navajos’ view, the Federal Government’s efforts to assist the Nav-
ajos with their water needs did not fully satisfy the trust obligations of
the United States under the 1868 treaty. The Navajos filed suit seek-
ing to compel the United States to take affirmative steps to secure
needed water for the Tribe—including by assessing the Tribe’s water
needs, developing a plan to secure the needed water, and potentially
building pipelines, pumps, wells, or other water infrastructure. The
States of Arizona, Nevada, and Colorado intervened against the Tribe
to protect those States’ interests in water from the Colorado River. The
U. S. District Court for the District of Arizona dismissed the Navajo
Tribe’s complaint, but the Ninth Circuit reversed, holding in relevant
part that the United States has a duty under the 1868 treaty to take
affirmative steps to secure water for the Navajos.
——————
* Together with No. 22–51, Department of the Interior et al. v. Navajo
Nation et al., also on certiorari to the same court.
2 ARIZONA v. NAVAJO NATION
Syllabus
Held: The 1868 treaty establishing the Navajo Reservation reserved nec-
essary water to accomplish the purpose of the Navajo Reservation but
did not require the United States to take affirmative steps to secure
water for the Tribe. Pp. 6–13.
(a) The Tribe asserts a breach-of-trust claim based on its view that
the 1868 treaty imposed a duty on the United States to take affirma-
tive steps to secure water for the Navajos. To maintain such a claim
here, the Tribe must establish, among other things, that the text of a
treaty, statute, or regulation imposed certain duties on the United
States. See United States v. Jicarilla Apache Nation, 564 U. S. 162,
173–174, 177–178. The Federal Government owes judicially enforcea-
ble duties to a tribe “only to the extent it expressly accepts those re-
sponsibilities.” Id., at 177. Whether the Government has expressly
accepted such obligations “must train on specific rights-creating or
duty-imposing” language in a treaty, statute, or regulation. United
States v. Navajo Nation, 537 U. S. 488, 506.
Here, while the 1868 treaty “set apart” a reservation for the “use and
occupation of the Navajo tribe,” 15 Stat. 668, it contains no language
imposing a duty on the United States to take affirmative steps to se-
cure water for the Tribe. See Navajo Nation, 537 U. S., at 506. Nota-
bly, the 1868 treaty did impose a number of specific duties on the
United States, but the treaty said nothing about any affirmative duty
for the United States to secure water. As this Court has stated, “In-
dian treaties cannot be rewritten or expanded beyond their clear
terms.” Choctaw Nation v. United States, 318 U. S. 423, 432.
To be sure, this Court’s precedents have stated that the United
States maintains a general trust relationship with Indian tribes, in-
cluding the Navajos. Jicarilla, 564 U. S., at 176. But unless Congress
has created a conventional trust relationship with a tribe as to a par-
ticular trust asset, this Court will not “apply common-law trust prin-
ciples” to infer duties not found in the text of a treaty, statute, or reg-
ulation. Id., at 178. Here, nothing in the 1868 treaty establishes a
conventional trust relationship with respect to water. And it is unsur-
prising that a treaty enacted in 1868 did not provide for all of the Nav-
ajos’ current water needs 155 years later. Under the Constitution,
Congress and the President have the responsibility to update federal
law as they see fit in light of the competing contemporary needs for
water.
(b) Other arguments offered by the Navajo Tribe to support its
claims under the 1868 treaty are unpersuasive. First, that the 1868
treaty established the Navajo Reservation as a “permanent home” does
not mean that the United States agreed to take affirmative steps to
secure water for the Tribe. Second, the treaty’s express requirement
that the United States supply seeds and agricultural implements for a
Cite as: 599 U. S. ____ (2023) 3
Syllabus
3-year period to the Tribe does not, as the Tribe contends, mean that
the United States has an additional duty to take affirmative steps to
secure water, but rather demonstrates that the United States and the
Navajos knew how to impose specific affirmative duties on the United
States under the treaty. Third, the Tribe asserts that the United
States’s purported control over the reserved water rights supports the
view that the United States owes trust duties to the Navajos. But the
“Federal Government’s liability” on a breach-of-trust claim “cannot be
premised on control alone.” United States v. Navajo Nation, 556 U. S.
287, 301. Finally, the text of the treaty and records of treaty negotia-
tions do not support the claim that in 1868 the Navajos would have
understood the treaty to mean that the United States must take af-
firmative steps to secure water for the Tribe.
26 F. 4th 794, reversed.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, and BARRETT, JJ., joined. THOMAS, J., filed a
concurring opinion. GORSUCH, J., filed a dissenting opinion, in which SO-
TOMAYOR, KAGAN, and JACKSON, JJ., joined.
Cite as: 599 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
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 KAVANAUGH delivered the opinion of the Court.
In 1848, the United States won the Mexican-American
War and acquired vast new territory from Mexico in what
would become the American West. The Navajos lived
within a discrete portion of that expansive and newly
American territory. For the next two decades, however, the
United States and the Navajos periodically waged war
against one another. In 1868, the United States and the
Navajos agreed to a peace treaty. In exchange for the
Navajos’ promise not to engage in further war, the United
States established a large reservation for the Navajos in
their original homeland in the western United States.
Under the 1868 treaty, the Navajo Reservation includes
(among other things) the land, the minerals below the
land’s surface, and the timber on the land, as well as the
right to use needed water on the reservation.
2 ARIZONA v. NAVAJO NATION
Opinion of the Court
The question in this suit concerns “reserved water
rights”—a shorthand for the water rights implicitly
reserved to accomplish the purpose of the reservation.
Cappaert v. United States, 426 U. S. 128, 138 (1976); see
also Winters v. United States, 207 U. S. 564, 576–577
(1908). The Navajos’ claim is not that the United States
has interfered with their water access. Instead, the Navajos
contend that the treaty requires the United States to take
affirmative steps to secure water for the Navajos—for
example, by assessing the Tribe’s water needs, developing
a plan to secure the needed water, and potentially building
pipelines, pumps, wells, or other water infrastructure—
either to facilitate better access to water on the reservation
or to transport off-reservation water onto the reservation.
In light of the treaty’s text and history, we conclude that
the treaty does not require the United States to take those
affirmative steps. And it is not the Judiciary’s role to
rewrite and update this 155-year-old treaty. Rather,
Congress and the President may enact—and often have
enacted—laws to assist the citizens of the western United
States, including the Navajos, with their water needs.
I
The Navajo Tribe is one of the largest in the United
States, with more than 300,000 enrolled members, roughly
170,000 of whom live on the Navajo Reservation. The
Navajo Reservation is the geographically largest in the
United States, spanning more than 17 million acres across
the States of Arizona, New Mexico, and Utah. To put it in
perspective, the Navajo Reservation is about the size of
West Virginia.
Two treaties between the United States and the Navajo
Tribe led to the establishment of the Navajo Reservation.
After the Mexican-American War ended in 1848, the United
States acquired control over massive new territory
throughout what is now the western United States—
Cite as: 599 U. S. ____ (2023) 3
Opinion of the Court
spanning west from Texas through New Mexico and
Arizona to California, and north into Oklahoma, Kansas,
Colorado, Wyoming, Utah, and Nevada. The Navajos lived
in a portion of that formerly Mexican territory.
In 1849, the United States entered into a treaty with the
Navajos. See Treaty Between the United States of America
and the Navajo Tribe of Indians, Sept. 9, 1849, 9 Stat. 974(ratified Sept. 24, 1850). In that 1849 treaty, the Navajo
Tribe recognized that the Navajos were now within the
jurisdiction of the United States, and the Navajos agreed to
cease hostilities and to maintain “perpetual peace” with the
United States. Ibid. In return, the United States agreed to
“designate, settle, and adjust” the “boundaries” of the
Navajo territory. Id., at 975.
Over the next two decades, however, the United States
and the Navajos often were at war with one another.
During that period, the United States forcibly moved many
Navajos from their original homeland to a relatively barren
area in New Mexico known as the Bosque Redondo
Reservation.
In 1868, the two sides agreed to a second treaty to put an
end to “all war between the parties.” The United States “set
apart” a large reservation “for the use and occupation of the
Navajo tribe” within the new American territory in the
western United States. Treaty Between the United States
of America and the Navajo Tribe of Indians, June 1, 1868,
15 Stat. 667–668 (ratified Aug. 12, 1868). Importantly, the
reservation would be on the Navajos’ original homeland, not
the Bosque Redondo Reservation. The new reservation
would enable the Navajos to once again become self-
sufficient, a substantial improvement from the situation at
Bosque Redondo. The United States also agreed (among
other things) to build schools, a chapel, and other buildings;
to provide teachers for at least 10 years; to supply seeds and
agricultural implements for up to three years; and to
provide funding for the purchase of sheep, goats, cattle, and
4 ARIZONA v. NAVAJO NATION
Opinion of the Court
corn.
In “consideration of the advantages and benefits
conferred” on the Navajos by the United States in the 1868
treaty, the Navajos pledged not to engage in further war
against the United States or other Indian tribes. Id., at
669–670. The Navajos also agreed to “relinquish all right
to occupy any territory outside their reservation”—with the
exception of certain rights to hunt. Id., at 670. The Navajos
promised to “make the reservation” their “permanent
home.” Id., at 671. In short, the treaty enabled the Navajos
to live on their original land. See 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,
4, 10–11, 15 (1968).
Under the 1868 treaty, the Navajo Reservation includes
not only the land within the boundaries of the reservation,
but also water rights. Under this Court’s longstanding
reserved water rights doctrine, sometimes referred to as the
Winters doctrine, the Federal Government’s reservation of
land for an Indian tribe also implicitly reserves the right to
use needed water from various sources—such as
groundwater, rivers, streams, lakes, and springs—that
arise on, border, cross, underlie, or are encompassed within
the reservation. See Winters v. United States, 207 U. S.
564, 576–577 (1908); see also Cappaert v. United States, 426
U. S. 128, 138–139, 143 (1976); Arizona v. California, 373
U. S. 546, 598–600 (1963); F. Cohen, Handbook of Federal
Indian Law §19.03(2)(a), pp. 1212–1213 (N. Newton ed.
2012). Under the Winters doctrine, the Federal
Government reserves water only “to the extent needed to
accomplish the purpose of the reservation.” Sturgeon v.
Frost, 587 U. S. ___, ___ (2019) (slip op., at 13) (internal
quotation marks omitted); United States v. New Mexico, 438
U. S. 696, 700–702 (1978).
The Navajo Reservation lies almost entirely within the
Colorado River Basin, and three vital rivers—the Colorado,
Cite as: 599 U. S. ____ (2023) 5
Opinion of the Court
the Little Colorado, and the San Juan—border the
reservation. To meet their water needs for household,
agricultural, industrial, and commercial purposes, the
Navajos obtain water from rivers, tributaries, springs,
lakes, and aquifers on the reservation.
Much of the western United States is arid. Water has
long been scarce, and the problem is getting worse. From
2000 through 2022, the region faced the driest 23-year
period in more than a century and one of the driest periods
in the last 1,200 years. And the situation is expected to
grow more severe in future years. So even though the
Navajo Reservation encompasses numerous water sources
and the Tribe has the right to use needed water from those
sources, the Navajos face the same water scarcity problem
that many in the western United States face.
Over the decades, the Federal Government has taken
various steps to assist the people in the western States with
their water needs. The Solicitor General explains that, for
the Navajo Tribe in particular, the Federal Government has
secured hundreds of thousands of acre-feet of water and
authorized billions of dollars for water infrastructure on the
Navajo Reservation. See Tr. of Oral Arg. 5; see also, e.g.,
Consolidated Appropriations Act, 2021, Pub. L. 116–260,
134 Stat. 3227, 3230; Northwestern New Mexico Rural
Water Projects Act, §§10402, 10609, 10701, 123 Stat. 1372,
1395–1397; Central Arizona Project Settlement Act of 2004,
§104, 118 Stat. 3487; Colorado Ute Settlement Act
Amendments of 2000, 114 Stat. 2763A–261, 2763A–263;
Act of June 13, 1962, 76 Stat. 96; Act of Apr. 19, 1950, 64
Stat. 44–45.
In the Navajos’ view, however, those efforts did not fully
satisfy the United States’s obligations under the 1868
treaty. The Navajos therefore sued the U. S. Department
of the Interior, the Bureau of Indian Affairs, and other
federal parties. As relevant here, the Navajos asserted a
breach-of-trust claim arising out of the 1868 treaty and
6 ARIZONA v. NAVAJO NATION
Opinion of the Court
sought to “compel the Federal Defendants to determine the
water required to meet the needs” of the Navajos in Arizona
and to “devise a plan to meet those needs.” App. 86. The
States of Arizona, Nevada, and Colorado intervened against
the Tribe to protect those States’ interests in water from the
Colorado River.
According to the Navajos, the United States must do
more than simply not interfere with the reserved water
rights. The Tribe argues that the United States also must
take affirmative steps to secure water for the Tribe—
including by assessing the Tribe’s water needs, developing
a plan to secure the needed water, and potentially building
pipelines, pumps, wells, or other water infrastructure. See
Tr. of Oral Arg. 102 (counsel for Navajo Nation: “I can’t say
that” the United States’s obligation “to ensure access” to
water “would never require any infrastructure
whatsoever”).
The U. S. District Court for the District of Arizona
dismissed the Navajo Tribe’s complaint. In relevant part,
the District Court determined that the 1868 treaty did not
impose a duty on the United States to take affirmative steps
to secure water for the Tribe.
The U. S. Court of Appeals for the Ninth Circuit reversed,
holding in relevant part that the United States has a duty
under the 1868 treaty to take affirmative steps to secure
water for the Navajos. Navajo Nation v. United States
Dept. of Interior, 26 F. 4th 794, 809–814 (2022). This Court
granted certiorari. 598 U. S. ___ (2022).
II
When the United States establishes a tribal reservation,
the reservation generally includes (among other things) the
land, the minerals below the land’s surface, the timber on
the land, and the right to use needed water on the
reservation, referred to as reserved water rights. See
United States v. Shoshone Tribe, 304 U. S. 111, 116–118
Cite as: 599 U. S. ____ (2023) 7
Opinion of the Court
(1938); Winters v. United States, 207 U. S. 564, 576–577
(1908); see also Cappaert v. United States, 426 U. S. 128,
138–139 (1976). Each of those rights is a stick in the bundle
of property rights that makes up a reservation.
This suit involves water. To help meet their water needs,
the Navajos obtain water from, among other sources, rivers,
tributaries, springs, lakes, and aquifers on the reservation.
As relevant here, the Navajos do not contend that the
United States has interfered with their access to water.
Rather, the Navajos argue that the United States must take
affirmative steps to secure water for the Tribe—for
example, by assessing the Tribe’s water needs, developing
a plan to secure the needed water, and potentially building
pipelines, pumps, wells, or other water infrastructure.
The Tribe asserts a breach-of-trust claim. To maintain
such a claim here, the Tribe must establish, among other
things, that the text of a treaty, statute, or regulation
imposed certain duties on the United States. See United
States v. Jicarilla Apache Nation, 564 U. S. 162, 173–174,
177–178 (2011); United States v. Navajo Nation, 537 U. S.
488, 506–507 (2003); United States v. Mitchell, 445 U. S.
535, 542, 546 (1980). The Federal Government owes
judicially enforceable duties to a tribe “only to the extent it
expressly accepts those responsibilities.” Jicarilla, 564
U. S., at 177. Whether the Government has expressly
accepted such obligations “must train on specific rights-
creating or duty-imposing” language in a treaty, statute, or
regulation. Navajo Nation, 537 U. S., at 506. That
requirement follows from separation of powers principles.
As this Court recognized in Jicarilla, Congress and the
President exercise the “sovereign function” of organizing
and managing “the Indian trust relationship.” 564 U. S., at
175. So the federal courts in turn must adhere to the text
of the relevant law—here, the treaty.1
——————
1 The Navajos have suggested that the Jicarilla line of cases might
8 ARIZONA v. NAVAJO NATION
Opinion of the Court
In the Tribe’s view, the 1868 treaty imposed a duty on the
United States to take affirmative steps to secure water for
the Navajos. With respect, the Tribe is incorrect. The 1868
treaty “set apart” a reservation for the “use and occupation
of the Navajo tribe.” 15 Stat. 668. But it contained no
“rights-creating or duty-imposing” language that imposed a
duty on the United States to take affirmative steps to
secure water for the Tribe. Navajo Nation, 537 U. S., at
506.
Notably, the 1868 treaty did impose a number of specific
duties on the United States. Cf. Jicarilla, 564 U. S., at 184–
185. For example, the treaty required the United States to
construct a number of buildings on the reservation,
including schools, a chapel, a carpenter shop, and a
blacksmith shop. 15 Stat. 668–669. The treaty also
mandated that the United States provide teachers for the
Navajos’ schools for at least 10 years, and to provide articles
of clothing or other goods to the Navajos. Id., at 669. And
the treaty required the United States to supply seeds and
agricultural implements for up to three years. Ibid.But the treaty said nothing about any affirmative duty
for the United States to secure water. And as this Court
has stated, “Indian treaties cannot be rewritten or
——————
apply only in the context of claims seeking damages from the United
States pursuant to the Tucker Act and Indian Tucker Act. See 28
U. S. C. §§1491, 1505; see also Brief for Navajo Nation 29. But Jicarilla’s
framework for determining the trust obligations of the United States
applies to any claim seeking to impose trust duties on the United States,
including claims seeking equitable relief. That is because Jicarilla’s
reasoning rests upon separation of powers principles—not on the
particulars of the Tucker Acts. As Jicarilla explains, the United States
is a sovereign, not a private trustee, and therefore the trust obligations
of the United States to the Indian tribes are established and governed by
treaty, statute, or regulation, rather than by the common law of trusts.
See 564 U. S., at 165, 177. Stated otherwise, the trust obligations of the
United States to the Indian tribes are established by Congress and the
Executive, not created by the Judiciary.
Cite as: 599 U. S. ____ (2023) 9
Opinion of the Court
expanded beyond their clear terms.” Choctaw Nation v.
United States, 318 U. S. 423, 432 (1943); cf. Jicarilla, 564
U. S., at 173–174, 177–178; Navajo Nation, 537 U. S., at506–507; Mitchell, 445 U. S., at 542, 546. So it is here.
Moreover, it would be anomalous to conclude that the
United States must take affirmative steps to secure water
given that the United States has no similar duty with
respect to the land on the reservation. For example, under
the treaty, the United States has no duty to farm the land,
mine the minerals, or harvest the timber on the
reservation—or, for that matter, to build roads and bridges
on the reservation. Cf. id., at 542–543. Just as there is no
such duty with respect to the land, there likewise is no such
duty with respect to the water.
To be sure, this Court’s precedents have stated that the
United States maintains a general trust relationship with
Indian tribes, including the Navajos. Jicarilla, 564 U. S.,
at 176. But as the Solicitor General explains, the United
States is a sovereign, not a private trustee, meaning that
“Congress may style its relations with the Indians a trust
without assuming all the fiduciary duties of a private
trustee, creating a trust relationship that is limited or bare
compared to a trust relationship between private parties at
common law.” Id., at 174 (internal quotation marks
omitted). Therefore, unless Congress has created a
conventional trust relationship with a tribe as to a
particular trust asset, this Court will not “apply common-
law trust principles” to infer duties not found in the text of
a treaty, statute, or regulation. Id., at 178. Here, nothing
in the 1868 treaty establishes a conventional trust
relationship with respect to water.
In short, the 1868 treaty did not impose a duty on the
United States to take affirmative steps to secure water for
the Tribe—including the steps requested by the Navajos
here, such as determining the water needs of the Tribe,
providing an accounting, or developing a plan to secure the
10 ARIZONA v. NAVAJO NATION
Opinion of the Court
needed water.
Of course, it is not surprising that a treaty ratified in
1868 did not envision and provide for all of the Navajos’
current water needs 155 years later, in 2023. Under the
Constitution’s separation of powers, Congress and the
President may update the law to meet modern policy
priorities and needs. To that end, Congress may enact—
and often has enacted—legislation to address the modern
water needs of Americans, including the Navajos, in the
West. Indeed, Congress has authorized billions of dollars
for water infrastructure for the Navajos. See, e.g., Tr. of
Oral Arg. 5, 11; Consolidated Appropriations Act, 2021,
Pub. L. 116–260, 134 Stat. 3230.2
But it is not the Judiciary’s role to update the law. And
on this issue, it is particularly important that federal courts
not do so. Allocating water in the arid regions of the
American West is often a zero-sum situation. See Brief for
Western Water Users and Trade Associations as Amici
Curiae 13–14, 18–21. And the zero-sum reality of water in
the West underscores that courts must stay in their proper
constitutional lane and interpret the law (here, the treaty)
according to its text and history, leaving to Congress and
the President the responsibility to enact appropriations
laws and to otherwise update federal law as they see fit in
light of the competing contemporary needs for water.
III
The Navajo Tribe advances several other arguments in
support of its claim that the 1868 treaty requires the United
States to take affirmative steps to secure water for the
——————
2 In this Court, the Navajos also briefly point to the 1849 treaty. But
that treaty did not grant the Navajos a reservation. In that treaty, the
United States agreed to “designate, settle, and adjust” the boundaries of
the Navajo territory at some future point. 9 Stat. 975. No provision of
the 1849 treaty obligated the United States to take affirmative steps to
secure water for the Navajos.
Cite as: 599 U. S. ____ (2023) 11
Opinion of the Court
Navajos. None is persuasive.
First, the Navajos note that the text of the 1868 treaty
established the Navajo Reservation as a “permanent home.”
15 Stat. 671. In the Tribe’s view, that language means that
the United States agreed to take affirmative steps to secure
water. But that assertion finds no support in the treaty’s
text or history, or in any of this Court’s precedents. The
1868 treaty granted a reservation to the Navajos and
imposed a variety of specific obligations on the United
States—for example, building schools and a chapel,
providing teachers, and supplying seeds and agricultural
implements. The reservation contains a number of water
sources that the Navajos have used and continue to rely on.
But as explained above, the 1868 treaty imposed no duty on
the United States to take affirmative steps to secure water
for the Tribe. The 1868 treaty, as demonstrated by its text
and history, helped to ensure that the Navajos could return
to their original land. See 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, 4, 10–
11, 15 (1968).
Second, the Navajos rely on the provision of the 1868
treaty in which the United States agreed to provide the
Tribe with certain “seeds and agricultural implements” for
up to three years. 15 Stat. 669. In the Navajos’ view, those
seeds and implements would be unusable without water.
But the reservation contains a number of water sources
that the Navajos have used and continue to rely on. And
the United States’s duty to temporarily provide seeds and
agricultural implements for three years did not include an
additional duty to take affirmative steps to secure water,
and to do so indefinitely into the future. If anything, the
treaty’s express requirement that the United States supply
seeds and agricultural implements for a 3-year period—like
the treaty’s requirement that the United States build
schools, a chapel, and the like—demonstrates that the
12 ARIZONA v. NAVAJO NATION
Opinion of the Court
United States and the Navajos knew how to impose specific
affirmative duties on the United States when they wanted
to do so.
Third, the Navajos refer to the lengthy Colorado River
water rights litigation that unfolded in a series of cases
decided by this Court from the 1960s to the early 2000s, and
they note that the United States once opposed the
intervention of the Navajos in that litigation. See Response
of United States to Motion of Navajo Tribe To Intervene in
Arizona v. California, O. T. 1961, No. 8, Orig. The Navajos
point to the United States’s opposition as evidence that the
United States has control over the reserved water rights.
According to the Navajos, the United States’s purported
control supports their view that the United States owes
trust duties to the Navajos. But the “Federal Government’s
liability” on a breach-of-trust claim “cannot be premised on
control alone.” United States v. Navajo Nation, 556 U. S.
287, 301 (2009). Again, the Federal Government must
“expressly accep[t]” trust responsibilities in a treaty,
statute, or regulation that contains “rights-creating or
duty-imposing” language. United States v. Jicarilla Apache
Nation, 564 U. S. 162, 177 (2011); United States v. Navajo
Nation, 537 U. S. 488, 506 (2003). The Navajos have not
identified anything of the sort. In addition, the Navajos
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, and courts will then
assess the Navajos’ claims and motions as appropriate. See
28 U. S. C. §1362; Arizona v. California, 460 U. S. 605, 615
(1983); see also Blatchford v. Native Village of Noatak, 501
U. S. 775, 784 (1991); Moe v. Confederated Salish and
Kootenai Tribes of Flathead Reservation, 425 U. S. 463,
472–474 (1976).3
——————
3 Similarly, the Navajos argue that the United States’s control over the
Colorado River “drives home the duty to secure water.” Brief for Navajo
Cite as: 599 U. S. ____ (2023) 13
Opinion of the Court
Fourth, the Tribe argues that, in 1868, the Navajos would
have understood the treaty to mean that the United States
must take affirmative steps to secure water for the Tribe.
But the text of the treaty says nothing to that effect. And
the historical record does not suggest that the United
States agreed to undertake affirmative efforts to secure
water for the Navajos—any more than the United States
agreed to farm land, mine minerals, harvest timber, build
roads, or construct bridges on the reservation. The record
of the treaty negotiations makes no mention of any water-
related obligations of the United States at all. See Treaty
Between the United States of America and the Navajo Tribe
of Indians With a Record of the Discussions That Led to Its
Signing.4
* * *
The 1868 treaty reserved necessary water to accomplish
the purpose of the Navajo Reservation. See Winters v.
United States, 207 U. S. 564, 576–577 (1908). But the
treaty did not require the United States to take affirmative
steps to secure water for the Tribe. We reverse the
judgment of the U. S. Court of Appeals for the Ninth
Circuit.
It is so ordered.
——————
Nation 33, 40. But as already explained, the Tribe has failed to identify
any such duty in the 1868 treaty.
4 The intervenor States separately argue that the Navajo Tribe’s
claimed remedies with respect to the Lower Colorado River would
interfere with this Court’s decree in Arizona v. California, 547 U. S. 150(2006). The question of whether certain remedies would violate the
substance of this Court’s 2006 decree is a merits question, not a question
of subject-matter jurisdiction. Because we conclude that the treaty
imposes no duty on the United States to take affirmative steps to secure
water in the first place, we need not reach the question of whether
particular remedies would conflict with this Court’s 2006 decree.
Cite as: 599 U. S. ____ (2023) 1
THOMAS, J., concurring
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 THOMAS, concurring.
I join the Court’s opinion in full, but write separately to
highlight an additional and troubling aspect of this suit.
For decades, this Court has referred to “a general trust re-
lationship between the United States and the Indian peo-
ple.” United States v. Mitchell, 463 U. S. 206, 225 (1983);
see also Seminole Nation v. United States, 316 U. S. 286,
296–297 (1942); Haaland v. Brackeen, 599 U. S. ___, ___
(2023) (slip op., at 12). Here, in allowing the Navajo Na-
tion’s “breach of trust” claim to go forward, the Ninth Cir-
cuit appears to have understood that language as recogniz-
ing a generic legal duty of the Federal Government toward
Indian tribes or, at least, as placing a thumb on the scale in
favor of declaring that legal duties are owed to tribes. See
26 F. 4th 794, 813 (2022). As the Court explains, the Nation
has pointed to no source of legally enforceable duties sup-
porting its claim in this suit. But the Ninth Circuit’s rea-
soning reflects deeper problems with this Court’s frequent
2 ARIZONA v. NAVAJO NATION
THOMAS, J., concurring
invocation of the Indian “trust relationship.”
At the outset, it should be noted that our precedents’
“trust” language can be understood in two different ways.
In one sense, the term “trust” could refer merely to the trust
that Indians have placed in the Federal Government. If
that is all this language means, then I have no objection.
Many citizens (and foreign nations) trust the Federal Gov-
ernment to do the right thing. Determining how to do right
by the competing interests of the country’s millions of citi-
zens, however, is generally a job for the political branches,
not courts.
By contrast, the term “trust” also has a well-understood
meaning at law: a relationship in which a trustee has le-
gally enforceable duties to manage a discrete trust corpus
for certain beneficiaries. See Restatement (Third) of Trusts
§2 (2001). At times, the Federal Government has expressly
created such discrete legal trusts for Indians—by, for exam-
ple, placing parcels of land or specified sums of money into
trust. See, e.g., Cass County v. Leech Lake Band of Chip-
pewa Indians, 524 U. S. 103, 106–107, 114 (1998) (describ-
ing statutory grants of authority to place lands in trust for
Indians); Seminole Nation, 316 U. S., at 293–294 (describ-
ing “the Government’s promise” in a particular treaty “to
establish a $500,000 trust fund” for the Seminole Nation).
But, when resolving disputes about those trusts, the Court’s
“trust” language has gone beyond the discrete terms of
those trusts; for example, the Court has alluded generally
to “the distinctive obligation of trust incumbent upon the
Government in its dealings” with Indians and the Govern-
ment’s “moral obligations of the highest responsibility and
trust.” Id., at 296–297. In those and other cases, the Court
has accordingly blurred the lines between the political
branches’ general moral obligations to Indians, on the one
hand, and specific fiduciary obligations of the Federal Gov-
ernment that might be enforceable in court, on the other.
See, e.g., Mitchell, 463 U. S., at 225; Seminole Nation, 316
Cite as: 599 U. S. ____ (2023) 3
THOMAS, J., concurring
U. S., at 296–297; see also Cobell v. Norton, 240 F. 3d 1081,
1086 (CADC 2001); Shoshone Indian Tribe of Wind River
Reservation v. United States, 364 F. 3d 1339, 1348 (CA Fed.
2004).
In United States v. Jicarilla Apache Nation, 564 U. S. 162(2011), the Court took steps to rectify this confusion. There,
we explained that the Federal Government is “not a private
trustee” but a “sovereign,” id., at 173–174, and that “[t]he
Government assumes Indian trust responsibilities only to
the extent it expressly accepts those responsibilities by stat-
ute,” id., at 177. Accordingly, any legal trusts established
or duties self-imposed by the Government for a tribe’s ben-
efit are “defined and governed by statutes rather than the
common law.” Id., at 174; see also id., at 173 (emphasizing
that “ ‘[t]he general relationship between the United States
and the Indian tribes is not comparable to a private trust
relationship’ ”). The Court’s opinion today represents a step
in the same direction, making clear that tribes’ legal claims
against the Government must be based on specific provi-
sions of positive law, not merely an amorphous “trust rela-
tionship.”
However, the Court has also invoked the “trust relation-
ship” to shape at least two other areas of its Indian-law ju-
risprudence—with questionable results. For example, the
Court has identified “the unique trust relationship” with
the Indians as the source of pro-Indian “canons of construc-
tion” that are supposedly “applicable [only] in Indian law.”
County of Oneida v. Oneida Indian Nation of N. Y., 470
U. S. 226, 247 (1985); see also EEOC v. Karuk Tribe Hous-
ing Auth., 260 F. 3d 1071, 1081 (CA9 2001) (refusing to ap-
ply the Age Discrimination in Employment Act of 1967 to
tribes in part because of those canons). But it is far from
clear how such a trust relationship would support different
interpretive tools. The first cases to apply those pro-Indian
canons did not ground them in any “trust relationship,” but
in the more basic idea that ambiguous treaty provisions
4 ARIZONA v. NAVAJO NATION
THOMAS, J., concurring
should be construed against the drafting party. See, e.g.,
Patterson v. Jenks, 2 Pet. 216, 229 (1829); Worcester v. Geor-
gia, 6 Pet. 515, 552 (1832); The Kansas Indians, 5 Wall. 737,
760 (1867); Restatement (Second) of Contracts §206 (1979);
Restatement (First) of Contracts §505 (1932). These canons
then “jumped without discussion from the interpretation of
treaties to the interpretation of statutes” in the 20th cen-
tury. A. Barrett, Substantive Canons and Faithful Agency,
90 B. U. L. Rev. 109, 152 (2010). To this day, it remains
unclear how the “trust relationship” could justify freestand-
ing pro-Indian canons that authorize courts to depart from
the ordinary rules of statutory interpretation.
Next, the Court has also suggested that the “trust rela-
tionship” provides the Federal Government with an addi-
tional power, not enumerated in the Constitution, to “do all
that [is] required” to protect Indians. Morton v. Mancari,
417 U. S. 535, 552 (1974) (internal quotation marks omit-
ted); see also Board of County Comm’rs v. Seber, 318 U. S.
705, 715–716 (1943). In doing so, the Court has apparently
used the trust relationship to feed into the so-called plenary
power that Congress supposedly enjoys over Indian affairs.
But the Court has also approved the use of that power to,
among other things, restrict tribal sovereignty and “elimi-
nate tribal rights.” See South Dakota v. Yankton Sioux
Tribe, 522 U. S. 329, 343 (1998); Washington v. Confeder-
ated Bands and Tribes of Yakima Nation, 439 U. S. 463, 501
(1979); Haaland, 599 U. S., at ___ (THOMAS, J., dissenting)
(slip op., at 35). Accordingly, it is difficult to see how such
a plenary power could be rooted in a trust relationship with
Indians. And it seems at least slightly incongruous to use
Indians’ trust in the Government as both the basis for a
power that can restrict tribal rights and canons of interpre-
tation that favor Indians.
The influence of the “trust relationship” idea on these
doctrinal areas is troubling, as the trust relationship ap-
pears to lack any real support in our constitutional system.
Cite as: 599 U. S. ____ (2023) 5
THOMAS, J., concurring
See id., at ___–___ (slip op., at 26–27). The text of the Con-
stitution (which mentions Indians only in the contexts of
commerce and apportionment) is completely silent on any
such trust relationship. See Art. I, §§2, 8; Amdt. 14, §2.
Further, the trust relationship does not have any historical
basis. Its genesis is usually traced to this Court’s statement
in Cherokee Nation v. Georgia, 5 Pet. 1 (1831), that the re-
lation of the United States to Indians has “resembl[ed] that
of a ward to his guardian,” id., at 17; see also F. Cohen,
Handbook of Federal Indian Law §2.02[2], p. 117 (2012)
(Cohen). However, that statement was dicta, see Haaland,
599 U. S., at ___–___ (THOMAS, J., dissenting) (slip op., at
25–27); and, in any event, the Indian Tribe in that case had
a specific treaty calling for the Federal Government’s “pro-
tection,” Cherokee Nation, 5 Pet., at 17. Some treaties with
tribes have contained similar provisions; others have not.
Compare Treaty With the Wyandots, 7 Stat. 31, with Treaty
With the Mohawks, 7 Stat. 61. And, of course, some tribes
before and after the Founding engaged in warfare with the
Federal Government. Cohen §1.03[2], at 36; id., §1.03[3],
at 40. In short, the idea of a generic trust relationship with
all tribes—to say nothing of legally enforceable fiduciary
duties—seems to lack a historical or constitutional basis.
In future cases, we should clarify the exact status of this
amorphous and seemingly ungrounded “trust relationship.”
As a start, it would be helpful to acknowledge that many of
this Court’s statements about the trust relationship were
mere dicta. E.g., Seminole Nation, 316 U. S., at 293–294
(discrete trust); Mancari, 417 U. S., at 551–552 (equal pro-
tection challenge to Government hiring program); Seber,
318 U. S., at 707 (state taxes on Indian lands). In the mean-
time, however, the Court should take care to ensure that
this confusion does not spill over into yet further areas of
the law.
Cite as: 599 U. S. ____ (2023) 1
GORSUCH, J., dissenting
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 re-
ceived 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 remarka-
ble about any of this, I would affirm the Ninth Circuit’s
judgment and allow the Navajo’s case to proceed.
2 ARIZONA v. NAVAJO NATION
GORSUCH, J., dissenting
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 in-
sight into the discussions that surrounded that Treaty. Fi-
nally, 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 Ari-
zona, and the San Juan drainage beyond.” J. Kessell, Gen-
eral 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 Nav-
ajo 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 af-
termath of the Mexican-American War—and following a pe-
riod of rapid westward expansion—the United States found
itself embroiled in a series of bitter conflicts with the Nav-
ajo. 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. “Deter-
mined to bring an end to Native resistance in the territory,”
he elected for a program of “removal, isolation, and incar-
ceration.” 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
Cite as: 599 U. S. ____ (2023) 3
GORSUCH, J., dissenting
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 vi-
sion 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 “ ‘de-
mand[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 “ ‘for-
age’ ” 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.
4 ARIZONA v. NAVAJO NATION
GORSUCH, J., dissenting
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. Com-
mission on Civil Rights, Office of General Counsel, Demo-
graphic 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. Kes-
sell 254. “Many died en route, some shot by the souldiers.”
Commission Report 7. As one Navajo later recounted, peo-
ple 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 sur-
passed 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
Cite as: 599 U. S. ____ (2023) 5
GORSUCH, J., dissenting
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 Re-
dondo.” 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 ne-
gotiate 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 assur-
ances 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 coun-
try,” 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 in-
cluding 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
6 ARIZONA v. NAVAJO NATION
GORSUCH, J., dissenting
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; arriv-
ing 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 com-
plications 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, moun-
tains, and mesas.” Ibid. The United States’ representa-
tives “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 res-
ervation. 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 nego-
tiate with the Navajo, the Secretary of the Interior dis-
cussed the possibility of agriculture as bearing on the ap-
propriate size of the Tribe’s reservation. Unlike the Navajo,
he thought, “ ‘[w]ild Indians cannot at once be transformed
Cite as: 599 U. S. ____ (2023) 7
GORSUCH, J., dissenting
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 continua-
tion.” 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 pro-
vided. Commission Report 9. In practice, the federal gov-
ernment often tolerated (and sometimes encouraged) the
Navajo to live and tend to livestock off reservation to pre-
serve their self-sufficiency. Kessell 271. These arrange-
ments continued until the 1930s, when Congress first “en-
act[ed] legislation defining the exterior boundaries of the
Navajo Reservation.” Id., at 272. Over the ensuing dec-
ades, 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 Reserva-
tion 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. “Mem-
bers 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 in-
stance, “[a]lthough the Navajo Reservation is adjacent to
8 ARIZONA v. NAVAJO NATION
GORSUCH, J., dissenting
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 Col-
orado.” Id., at 33. But instead of resolving what the Nav-
ajo’s water rights might be, the United States has some-
times 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 ba-
sins—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 Hoo-
ver 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 agree-
ment among the States in the region, the law authorized
the Secretary to enter into contracts for the delivery of wa-
ter 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, Con-
gress hoped “to put an end to the long-standing dispute over
Cite as: 599 U. S. ____ (2023) 9
GORSUCH, J., dissenting
Colorado River waters.” Id., at 560.
Reality never quite caught up to the law’s ambitions. Af-
ter 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 Cal-
ifornia 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 fed-
eral government claimed the need to “protect federal inter-
ests, 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 inter-
ests 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 ef-
fective 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 inter-
vene. 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 op-
posed the Tribe’s motion. Ibid. On its view, it had already
10 ARIZONA v. NAVAJO NATION
GORSUCH, J., dissenting
“ ‘undertaken representation of the interests of several In-
dian [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 “ ‘con-
siderations 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 main-
stream.” 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 dec-
ade earlier culminated in a decree. See Arizona v. Califor-
nia, 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 con-
tracts” 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 Nav-
ajo’s behalf; the Navajo never received an opportunity to as-
sert 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 fed-
eral 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
Cite as: 599 U. S. ____ (2023) 11
GORSUCH, J., dissenting
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 de-
claratory relief to compel the Federal Defendants to deter-
mine 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 Nav-
ajo 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 pro-
visions in the Treaty, the history surrounding its enact-
ment, 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
12 ARIZONA v. NAVAJO NATION
GORSUCH, J., dissenting
ask the United States to fulfill part of that duty by as-
sessing what water rights it holds for them. The govern-
ment 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 imple-
ment 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 ex-
tends “[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 “commit-
ments made through written treaties” with the Tribes “es-
tablished enduring and enforceable Federal obligations” to
them. 25 U. S. C. §5601(4)–(5) (emphasis added). The Ex-
ecutive 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 interpreta-
tion, like “a contract’s interpretation, [is] a matter of deter-
mining 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.”
Cite as: 599 U. S. ____ (2023) 13
GORSUCH, J., dissenting
Air France v. Saks, 470 U. S. 392, 399 (1985). All with an
eye to ensuring both sides receive the “benefit of their bar-
gain.” Mobil Oil Exploration & Producing Southeast, Inc.
v. United States, 530 U. S. 604, 621 (2000).
That exercise entails the application of familiar princi-
ples 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. Jen-
nings & A. Watts eds., 9th ed. 1992). And they include the
doctrine of unilateral mistake—the notion that, if two par-
ties 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 re-
lationship, given the risk the fiduciary will (intentionally or
otherwise) “misuse” its position of trust. 28 R. Lord, Willis-
ton 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.” Haa-
land v. Brackeen, 599 U. S. ___, ___–___ (2023) (slip op., at
11–12). But the United States has, through “acts of Con-
gress” and other affirmative conduct, voluntarily assumed
certain specific fiduciary duties to the Tribes. Seminole Na-
tion 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 “mas-
ters of [its] written language,” who fully “underst[ood]
the . . . technical estates known to [its] law,” and who were
14 ARIZONA v. NAVAJO NATION
GORSUCH, J., dissenting
“assisted by an interpreter [they] employed.” Jones v.
Meehan, 175 U. S. 1, 11 (1899).
Put together, these insights have long influenced the in-
terpretation of Indian treaties. “The language used in trea-
ties 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 inter-
preting Indian treaties “in a spirit which generously recog-
nizes the full obligation of this [N]ation.” Tulee v. Washing-
ton, 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 Con-
strued 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 in-
cludes taking stock of “the history of the treaty, the negoti-
ations, and the practical construction adopted by the par-
ties.” 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 “pro-
tec[t]” the Tribes and their ways of life. See Washington
Cite as: 599 U. S. ____ (2023) 15
GORSUCH, J., dissenting
State Commercial Passenger Fishing Vessel Assn., 443
U. S., at 666–667.
It is easy to see the purchase these rules have for reser-
vation-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 responsibili-
ties 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 landown-
ers invested their own resources to build dams and reser-
voirs which indirectly deprived the Tribes living on the res-
ervation 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 agree-
ment reserved water rights for the Tribes in the Milk River
and found for the government. Id., at 577. The Court con-
sidered it inconceivable that, having once enjoyed “benefi-
cial use” of nearby waters, the Tribes would have contracted
to “give up all th[at].” Id., at 576. After all, the lands de-
scribed in the reservation “were arid and, without irriga-
tion, 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 perma-
nent home for the Tribes necessarily implied that the
Tribes would enjoy continued access to nearby sources of
16 ARIZONA v. NAVAJO NATION
GORSUCH, J., dissenting
water. Ibid. A contrary reading, the Court said, would “im-
pair 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 por-
tion 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 In-
dian Reservation without intending to reserve waters nec-
essary 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 fidu-
ciary,” Arizona v. California, 460 U. S. 605, 626–627 (1983)
(Arizona II ), one held to “the most exacting fiduciary stand-
ards,” Seminole Nation, 316 U. S., at 297. This is no special
rule. “[F]iduciary duties characteristically attach to deci-
sions” 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 Na-
tion, 563 U. S. 307, 318 (2011). After all, it is black-letter
law that a plaintiff may seek an accounting “whenever the
Cite as: 599 U. S. ____ (2023) 17
GORSUCH, J., dissenting
defendant is a fiduciary who has been entrusted with prop-
erty of some kind belonging to the plaintiff,” even if the de-
fendant is not “express[ly]” named a “trustee.” J. Eichen-
grun, 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 Trus-
tees §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’ agree-
ment. 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 ad-
equate water. Otherwise, the Tribe’s land would be “prac-
tically 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 assump-
tion 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 enti-
tled to select tracts of land within the reservation to “com-
mence 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 im-
plements.” Art. VII, id., at 669. Similarly, the Treaty
18 ARIZONA v. NAVAJO NATION
GORSUCH, J., dissenting
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 negotia-
tions, 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 ex-
pressly raised the availability of water in his negotiations
with the Tribe. Treaty Record 5. Doubtless, he did so be-
cause everyone had found the water at Bosque Redondo in-
sufficient 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 ap-
pear 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 reserva-
tion. Winters itself involved a challenge to the misappropri-
ation 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
Cite as: 599 U. S. ____ (2023) 19
GORSUCH, J., dissenting
“it is impossible to believe that when . . . the Executive De-
partment 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 In-
dian 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 Col-
orado” 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 ask-
ing 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 Col-
orado 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 gov-
ernment 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
20 ARIZONA v. NAVAJO NATION
GORSUCH, J., dissenting
cannot lawfully divert them elsewhere—just as a lawyer
cannot dispose of a client’s property entrusted to him with-
out permission. And the only way to ensure compliance
with that obligation is to give the Tribe just what they re-
quest—an assessment of the water rights the federal gov-
ernment 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 accom-
plish 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 possi-
bility 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 wa-
ter, 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 re-
sult 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 govern-
ment might even eventually find itself on the hook to “farm
land, mine minerals, harvest timber, build roads, or con-
struct bridges on the reservation.” Ante, at 13; see also
ante, at 9.
Cite as: 599 U. S. ____ (2023) 21
GORSUCH, J., dissenting
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 ob-
ligated 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 deter-
mine 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 any-
one 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 misappro-
priating 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. Nav-
ajo 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
22 ARIZONA v. NAVAJO NATION
GORSUCH, J., dissenting
States, or Executive orders of the President.” Ibid. Nota-
bly, however, the Tucker Acts provide only a selective
waiver of sovereign immunity, not a cause of action. To de-
termine 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 prescrip-
tions,” Navajo I, 537 U. S., at 506, producing a scheme that
bears the “hallmarks of a more conventional fiduciary rela-
tionship,” United States v. White Mountain Apache Tribe,
537 U. S. 465, 473 (2003). Second, once a Tribe has identi-
fied 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 re-
lief 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 provi-
sion 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 trus-
tee. Nor does anyone question that the United States has
waived sovereign immunity for claims “seeking relief other
Cite as: 599 U. S. ____ (2023) 23
GORSUCH, J., dissenting
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 en-
force 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 In-
dian treaty rights are given full effect”). The cases the
Court relies on simply do not enter the picture.
24 ARIZONA v. NAVAJO NATION
GORSUCH, J., dissenting
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 frame-
work 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 al-
lowed a claim for money damages relating to the misman-
agement of tribal forests. On what basis? A patchwork of
statutes and regulations, along with some assorted repre-
sentations 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 prop-
erty belonging to a Tribe, the necessary “fiduciary relation-
ship normally exists . . . even though nothing is said ex-
pressly” about “a trust or fiduciary connection.” Id., at 225
(internal quotation marks omitted). Further, where the
federal government has “full responsibility” to manage a re-
source or “elaborate control” over that resource, the requi-
site “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,
Cite as: 599 U. S. ____ (2023) 25
GORSUCH, J., dissenting
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 Sec-
retary 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 dam-
ages, this Court emphasized the United States exercised
authority over the assets at issue and had considerable “dis-
cretionary 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 fidu-
ciary” for the Tribes. Arizona II, 460 U. S., at 627–628 (em-
phasis added). The United States’ control over adjacent wa-
ter 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 con-
tract. 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 Ameri-
can who has spent time at the Department of Motor Vehi-
cles. The Navajo have waited patiently for someone, any-
one, to help them, only to be told (repeatedly) that they have
been standing in the wrong line and must try another. To
26 ARIZONA v. NAVAJO NATION
GORSUCH, J., dissenting
this day, the United States has never denied that the Nav-
ajo may have water rights in the mainstream of the Colo-
rado 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 re-
ceived 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 under-
stands 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 Nav-
ajo “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 to-
day, it is hard to see how this Court (or any court) could
ever again fairly deny a request from the Navajo to inter-
vene in litigation over the Colorado River or other water
sources to which they might have a claim. Principles of es-
toppel, 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
Cite as: 599 U. S. ____ (2023) 27
GORSUCH, J., dissenting
necessarily come with it. Perhaps here, as there, some
measure of justice will prevail in the end.