Indian law, including Indian constitutional law, is famously chaotic. With the Supreme Court’s 5-4 decision in Arizona v. Navajo Nation, it just got more so.

Although the Court likely reached the correct result, a key part of the majority opinion seems to conflict with a pronouncement last week in Haaland v. Brackeen.

I discussed the Brackeen case in this space a few days ago. Justice Amy Coney Barrett’s majority opinion broadened Congress’s power to “regulate Commerce . . . with the Indian Tribes” into one to regulate all “Indian affairs”—a formulation rejected explicitly by the Constitutional Convention of 1787. To buttress her conclusion, Justice Barrett resorted to recitals of federal authority, unstated in the Constitution, but often cited by advocates of congressional power:

We have also noted that principles inherent in the Constitution’s structure empower Congress to act in the field of Indian affairs . . . . With this in mind, we have posited that Congress’s legislative authority might rest in part on “the Constitution’s adoption of preconstitutional powers necessarily inherent in any Federal Government . . . Finally, the “trust relationship between the United States and the Indian people” informs the exercise of legislative power.

However, in Arizona v. Navajo Nation, Justice Brett Kavanaugh’s opinion for the court follows the 2011 decision in United States v. Jicarilla Apache Nation to reject any free floating, extra-constitutional trust relationship:

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 . . . The Federal Government owes judicially enforceable duties to a tribe “only to the extent it expressly accepts those responsibilities.” Jicarilla . . . Whether the Government has expressly accepted such obligations “must train [sic] on specific rights creating or duty-imposing” language in a treaty, statute, or regulation.

Thus, in the Court’s view, any government-tribal trust relationship must be grounded in a “treaty, statute, or regulation.” It is not inherent in all government-tribal relations and cannot be a source of, or even necessarily “inform,” legislative power.

In this case, the Court held that the only possible basis for the Navajos’ claim was an 1868 treaty between the United States Government and the tribe.

The Nuts and Bolts of the Case

Arizona v. Navajo Nation was basically a water rights dispute. Under a rule established in Winters v. United States, when the federal government cedes land to an Indian tribe, in the absence of language to the contrary, the government also impliedly cedes sufficient water rights to meet the purposes of the grant. Thus, when the government conveys land for a reservation, it implicitly conveys sufficient water for the reservation to become a going concern.

Incidentally, in the arid western United States, these “Winters rights” often become a sore point. As the Navajo Nation argued in this case, tribes frequently claim they are entitled to more water than they are getting. But satisfying a tribal claim may require infringing bought-and-paid-for state water rights held by non-tribal members. The resulting animosity between a tribe and its non-tribal neighbors can be bitter.

No one disputed that the 1868 treaty implicitly conveyed water rights to the Navajos. But the tribe contended that the treaty also required the federal government to undertake certain affirmative duties pertaining to that water. The exact scope of those affirmative duties was a matter of dispute between Justice Kavanaugh and Justice Neil Gorsuch, who wrote for the four dissenters.

Interpreting treaties—like interpreting almost all other legal documents other than (in modern dogma) the Constitution—is a purely originalist enterprise: Once the court held that the Navajo Nation’s claim could be justified only by the 1868 treaty, the case became a straightforward matter of finding the “intent of the parties.” In Justice Kavanaugh’s words, “[A] treaty’s interpretation, like ‘a contract’s interpretation, [is] a matter of determining the parties’ intent.’ . . . That means courts must look to the ‘shared expectations of the contracting parties.’”

In Indian treaties, finding the “parties’ intent” requires applying the familiar presumptions that ambiguous terms are construed against the drafter (generally the government) and making allowances for power disparities and language and cultural differences.

Justice Kavanaugh points out that, although the 1868 treaty imposed some affirmative obligations on the government, it did not impose affirmative obligations related to water. He therefore concluded that there were none. Of course, this is an exercise of another principle of documentary interpretation: Inclusio unius est exclusio alterius—the inclusion of one implies the exclusion of the other. The principle arises because observation tells us that when parties insert a list in a document, they probably intend to exclude items they did not put on the list.

Other Opinions

Justice Clarence Thomas joined the opinion of the Court, but concurred as part of his ongoing plea for more coherence in Indian law. In particular, he noted how the government-tribal “trust relationship” has been characterized both as the result of specific engagements and as a free-floating obligation.

Justice Gorsuch’s dissent, like his concurrence in Brackeen, begins with a lengthy history and a recital of Indian grievances. His more effective argument, however, is that the Navajo request was far narrower than the majority assumed—that the Navajos sought merely that the government determine the scope of the tribe’s reserved water. He added that the Navajo had been waiting a very long time for an answer:


To date, their efforts to find out what water rights the United States holds for them have produced an experience familiar to any American who has spent time at the Department of Motor Vehicles. The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another. . . . At each turn, they have received the same answer: “Try again.” When this routine first began in earnest, Elvis was still making his rounds on The Ed Sullivan Show.

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