Arizona v. Navajo Nation is one of the more frustrating opinions I’ve read this term. Not frustrating in the sense that Justice Gorsuch wrote his tenth consecutive opinion favoring Indian tribes. By now, that is to be expected. Rather, I found this decision difficult to follow because Justice Kavanaugh’s anemic majority opinion did not address, let alone acknowledge Justice Gorsuch’s dissent. Much like in Brackeen, the Court’s conservatives are simply ignoring Justice Gorsuch on Indian law. It’s like a game of hide-and-seek where the seekers never stop counting. Or maybe, to fit the genre, a game of Cowboys and Indians where the Cowboys go play baseball.
I don’t pretend to be an expert in Indian law, so it is difficult for me to balance how strong or weak the opinions are. As a general matter, I am skeptical of any Gorsuch opinion that rules for an Indian tribe or member. McGirt and Brackeen will do that to you. But I am also skeptical of any Justice Kavanaugh opinion that is super short, repeats the same theme over and over and over again, and relegates a dispute about precedent to a footnote. Navajo Nation has all the hallmarks of trying to smooth over unclear/unfavorable precedent.
Without some back-and-forth, I have to venture out on my own to figure what the right answer is. And venture I will.
First, what relief is the Navajo Nation seeking? The majority opinion repeats the same claim over and over and over again, nearly verbatim:
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. (p. 2)
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. (p. 6)
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. (p. 7)
In short, the 1868 treaty did not impose a duty on theUnited 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 (p. 9)
In dissent, Justice Gorsuch mocks Justice Kavanaugh’s repetitiveness:
It insists (and then repeats—again and again) that the United States owes no “affirmative duty” to the Navajo with respect to water, and therefore does not need to take any “affirmative steps” to help the Tribe on that score.
Of course, Justice Gorsuch points out, Justice Kavanaugh never actually explains what “affirmative steps” the Nation sought:
Though it never quite cashes out what the phrase “affirmative steps” means, the Court appears concerned that allowing this complaint to proceed could result in a court order requiring the United States to “buil[d] pipelines, pumps, wells, or other water infrastructure.”
Did the Nation actually seek that sort of relief? Justice Gorsuch actually quotes from the complaint:
[T]he Tribe’s complaint seeks simply to “compel the Federal Defendants to determine the water required to . . . fulfill the promise[s]” made to them under the Treaty of 1868. Only if the United States is, in fact, “interfer[ing] with [their] reserved water rights” in some way, could the Tribe then ask the federal government to “devise a plan” for achieving compliance with its obligations, App. 86.
I went back and checked the Third Amended Complaint, which appears at Page 86 of the Joint Appendix.
This action seeks injunctive and declaratory relief to compel the Federal Defendants to determine the water required to meet the needs of the Nation’s lands in Arizona and devise a plan to meet those needs to fulfill the promise of the United States to make the Nation’s Reservation lands a permanent homeland for the Navajo people.
Kavanaugh and Gorsuch are both right and both wrong. The Plaintiffs seek a declaration of their water needs, and seek injunctive relief to satisfy those water needs. Kavanaugh downplays the first half, and Gorsuch downplays the second half. I think there is a possible defense of the majority: if the court lacks the power to order the federal government to take any actions that would redress those alleged injuries, then the federal court may lack jurisdiction to issue a declaration. See California v. Texas. But I haven’t given this issue too much thought.
Second, the majority and dissent vigorously disagree over what the treaty actually requires. On page 4, Justice Kavanaugh rattles off several provisions concerning war, peace, and territory. But nothing about water. Rather, any possible water rights are “implicit” or “reserved.”
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, (1908) . . . Under the Winters doctrine, the Federal Government reserves water only “to the extent needed to accomplish the purpose of the reservation.” Sturgeon v. Frost (2019).
But what exactly does the Winters doctrine require?
By contrast, Justice Gorsuch does not even discuss the text of the treaty until page 17 of his 28-page dissent–a tell that traditional modes of textualism does not motivate his opinion. Is Gorsuch faithfully applying Winters? He does make some fair points that it would be inconceivable for the Navajo people to live in an arid region without access to water. So wouldn’t the treaty have to address that point? This argument sounds in intentionalism, rather than textualism–the exact modality that Justice Gorsuch eschewed in Bostock. Intentions and expectations do not matter. What matters is text. Or does it with the Indian canon?
Kavanaugh replies, “show me the text.”
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.
Justice Kavanaugh adds that a 150-year old treaty should not be understood to solve all modern problems:
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.
I have no idea what is the right way to read this treaty.
Third, the majority and dissent disagree about a line of cases that include United States v. Jicarilla Apache Nation (2011). Footnote 1 of the majority opinion rejects how the Navajos read this precedent:
1The Navajos have suggested that the Jicarilla line of cases might apply only in the context of claims seeking damages from the UnitedStates 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.
Does Jicarilla actually supports this proposition? I am always skeptical when a majority opinion deals with an important case in a footnote. Justice Gorsuch, in dissent, claims that the majority misread the precedent:
Having mistaken the nature of the Navajo’s complaint, the Court proceeds next to analyze it under the wrong legalframework. Citing cases like United States v. Jicarilla Apache Nation, 564 U. S. 162 (2011); United States v. Navajo Nation, 537 U. S. 488 (2003) (Navajo I); and United States v. Mitchell, 445 U. S. 535 (1980) (Mitchell I), theCourt 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.
I have no idea whether the majority or dissent is correct. And because there is no back-and-forth, there is no way to assess these claims.
I’ll end this post where I began. I am frustrated by this decision. Maybe the Navajo Nation deserved to lose. I am inclined to think that treaties drafted by government officials trying to eradicate tribes did not draft treaties in their favor. But I also recognize that there is substantial caselaw suggesting that treaties must be read in favor of tribes–the so-called Indian canon. But maybe that caselaw is wrong?
Perhaps the only satisfying aspect of this case was Justice Thomas’s concurrence–and he cites Justice Barrett in the process:
For example, theCourt has identified “the unique trust relationship” with the Indians as the source of pro-Indian “canons of construction” that are supposedly “applicable [only] in Indian law.” County of Oneida v. Oneida Indian Nation of N. Y. (1985). 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 should be construed against the drafting party. These canons then “jumped without discussion from the interpretation of treaties to the interpretation of statutes” in the 20th century. 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 freestanding pro-Indian canons that authorize courts to depart from the ordinary rules of statutory interpretation.
In future Indian cases, I hope someone–anyone–replies to Justice Gorsuch. Otherwise, his views stand unrebutted, thus undermining the persuasiveness of the majority.
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