Courthouse Steps Decision: Arizona v. Navajo Nation

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Jack Capizzi:  Hello and welcome to today’s Federalist Society virtual event. Today, July 6, 2023, we are excited to present a “Courthouse Steps Decision” recap in the case of Arizona v. Navajo Nation. My name is Jack Capizzi, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the speakers on today’s call. After our speakers have given their remarks, we will turn to you, the audience, for any questions you might have. If you do have a question at any point, please type it into the Q&A function at the bottom of your screen, and we’ll handle them as we can towards the end of today’s program.

 

Today, we’re delighted to be joined by A.J. Ferate, who is Of Counsel at Spencer Fane, as well as Jennifer Weddle, who is a shareholder and Co-Chair of the American Indian Law Practice Group at Greenberg Traurig. With that, thank you all for being with us. Jennifer, over to you.

 

Jennifer Weddle:  Thank you so much to The Federalist Society and to A.J. for doing this webinar with me today. We thought that we’d divide it up a little bit and provide some more background and context since Indian water rights are not necessarily in everyone’s range of expertise. So I’m going to walk through that. I have a lot of pictures for all of you visual learners — and you may recognize some people you know in these pictures — talk through the background of how Indian water rights have developed, and then provide the overview of what happened at the district court proceedings in Arizona here and at the Ninth Circuit. And then, A.J. is going to take us through the three separate opinions from the U.S. Supreme Court in the case.

 

      So first off, the overview of Indian water rights. It’s rooted in federal law, including aboriginal title to land and water as recognized in the United States. It’s also been hallmarked by the deep conflicts between Indian and non-Indian rights and uses and is founded in Indian treaties, agreements, statutes, and executive orders and has also been the subject of very expensive and very lengthy litigation. And resultantly, most Indian water rights are now settled in congressional acts that involve multiple decades of negotiations between congressional, executive, and tribal folks along with states, municipal users, agriculture interests, etc. And I’ll talk more about some of those specifics in a second.

 

So the origins of Western water law. In the arid West, areas of water use were located far from sources of supply very frequently, particularly for miners and irrigators who would build diversions, small dams, and move water to areas of need. And that really—“first in time/first in right” coming out of mining—carried over into water rights, and the doctrine of “prior appropriation” was born through westward expansion in the mid-to-late-1800s.

 

The foundational concept is that water’s the basis for development in the West, that water would be contained in massive public works, and that -- those public works would found and support continued western expansion and development. The architect of all this was, of course, John Wesley Powell, who was the godfather of those large federally funded water storage projects that formed the basis for the development of western cities like Los Angeles, Phoenix, and Las Vegas, perhaps most famously. Those are certainly not always the best examples of urban planning based upon water availability and now, water scarcity here in the West. But that continued availability of adequate and reliable municipal and industrial water supplies to meet that population growth in the West is really the underpinning of all economic life in the West.

 

And I’m trying to go to the next slide. State water law, as I say, kind of grew up around this idea of prior appropriation. Literally, miners and irrigators would handwrite out notices of what water they were using based on availability of water, and that’s very theoretical. Again, the water they were using was often distant from the place that they were putting the water to use -- to some beneficial use, where the water was being used for a productive purpose. They had to use that water continuously or lose their priority right to it. And they had to use it with reasonable efficiency. It had to be somehow in the general public interest, but that was really subject to very little enforcement and very little regulation.

 

In fact, it was Wyoming that passed the first water code in the United States in 1890. There’s a very mixed set of water systems in the United States, water laws that govern the various structures on a state-by-state basis. And you can see them on this 2014 Department of Energy map, which shows you that in areas of water abundance, they follow a pure riparian or regulated riparian structure, and in places of water scarcity, they follow that pure prior appropriation, or they move to prior appropriation, were formerly riparian. Hawaii has its own set of water laws, and there’s some mixed riparian, prior appropriation states that divide generally along geographic lines, again, by water scarcity or abundance. And you can see that they correlate very closely to how much water is actually in a geographic area.

 

And of course, that water includes water to fulfill Indian treaties. It’s very clear, has been for more than a hundred years, that there are Indian-reserved water rights based on federal law. And that’s the so-called Winters doctrine that I’ll talk more about, that water rights are associated with the establishment of Indian reservations for agricultural purposes. And there’s also many other types of Indian water rights, including rights to instream flows, sometimes called Winans rights, rights that are associated most particularly with Northwest fisheries. And noting that a lot of this is further complicated by early -- earlier legal governance under Spanish law up to 1821 or Mexican law up to 1846 as to the Pueblos in the Southwest.

 

The seminal case is Winters v. United States from 1908, which related to the Fort Belknap Indian Reservation, which — you can hopefully see on your screen — is right here in North Central Montana. And there, the United States brought suit to enjoin ongoing withdraws from agricultural interests on the Milk River, arguing that they were preventing that water from making it downstream for agricultural use on the Fort Belknap Reservation where agriculture, to this day, remains the number one economic driver on the reservation. In 1908, the Court held on a 7-1 basis that the tribe’s water rights were established from the date the reservation was established, that the tribe could not lose those rights from nonuse, and as it was more fully developed in later cases, the Winters doctrine holds that when the federal government broadly sets aside land for an Indian reservation or other particular purpose, it reserves water under federal law sufficient to meet those purposes as well. Post Winters developments. Lots of open-ended court decrees, recognition that allotments also carry water rights with them, and that those water rights are transferable. There’s extensive non-Indian development through the Bureau of Reclamation, but tribal rights in that process have routinely been ignored, and the U.S. has generally had a very poor record in developing and protecting Indian water.

 

How are those tribal rights quantified? In an original jurisdiction case first filed with the Court in 1952, Arizona v. California, the Court ultimately entered a decree related to the Colorado River and endorsed a quantification method called, “Practicably Irrigable Acreage,” or PIA, recognizing tribes’ rights to the amount of water necessary to irrigate all the land within the reservation that could be feasibly and economically irrigated. And that includes both on-reservation/off-reservation sources of water necessary to accomplish those purposes. And elements of the Practicably Irrigable Acreage standard were also later litigated in Wyoming state court to quantify the rights of the Northern Arapaho and Eastern Shoshone Tribes. And that case also went up to the U.S. Supreme Court, and again, the PIA standard was upheld.

 

In this mix are the specific treaty promises to the Navajo Nation by the United States. For many years, and a lot of this history is recounted in Justice Gorsuch’s dissenting opinion, which A.J. will delve into, but Navajos defended their land against incursions, including against livestock raiders. And things markedly changed when the U.S. Army arrived in Navajo territory in 1848. The United States and Navajos have signed two Senate-ratified treaties. The first, in 1849, placed the Navajos “forever” — that’s a quote from the treaty — “under the exclusive jurisdiction and protection” of the United States and promised to establish a reservation. Between 1863 and 1866, however, there were intensive hostilities between the Navajo Nation and the United States, and over some, almost five dozen, separate marches, the Army rounded up nearly 12,000 Dine’ people and marched them more than 300 miles to a desolate reservation at Bosque Redondo in New Mexico.

 

There were very inhospitable conditions there, including very poor water, really inhuman conditions, and in 1868, the Navajo Nation became the only Native nation to use a treaty to escape removal and return to their original homelands. This is an actual picture of the treaty, which was written on an Army ledger book. The 1868 treaty established the Navajo reservation in their ancestral high-desert homeland as the tribe’s permanent home. That’s an area that encompasses acreage roughly equivalent to the size of the state of West Virginia, a very large space, largest reservation in the United States. That treaty promised that, by giving up the nomadic life outside the reservation, the Navajos could return to their farming way of life on their -- on part of their ancestral home with government-provided seeds and agricultural implements. And during the negotiations, General Sherman, who led the negotiations for the United States, specifically addressed the water issues, and those treaty history documents are also cited in Justice Gorsuch’s opinion, again, as A.J. will discuss. But there’s a lot of focus in both opinions on what it means to be promised a permanent home and what, if any, duties the United States would have to maintain the suitability of that home and, particularly, to secure water.

 

The Navajo Nation attempted multiple times to get its interests asserted in the Arizona v. California litigation. All those motions were denied by the U.S. Supreme Court and opposed by the United States Department of Justice, which did assert interest on behalf of five other Indian tribes but not on behalf of the Navajo Nation despite repeated requests and attempts to compel them to do so. And that generally followed the same process for those tribes that -- whose rights were adjudicated in Arizona v. California under that PIA standard, where they received paper water rights sufficient to meet the present and future needs of the reservation. And you can see on this map the areas that were adjudicated in the Arizona v. California decree and the tribes that have adjudicated water rights and those that did not, obviously, the Navajo Nation not included.

 

These are very complicated adjudication processes that include classification of lands and what is available, engineering feasibility on what would be necessary to irrigate arable lands, lots of analysis of the economic feasibility of irrigation on those lands and just technical susceptibility for irrigation. The PIA calculations vary wildly, especially as to economic feasibility. And that conflicts with the economic feasibility requirements of the Reclamation Act of 1902, which provided significant federal subsidies to make non-Indian irrigation practicable in much of the West. Whereas, under the PIA standard, tribes are never allowed similar subsidy.

 

The implications of PIA on tribal lands. It’s, as I say, the only sole quantification standard endorsed by the U.S. Supreme Court. It’s not necessarily the exclusive method of quantification. The Arizona Supreme Court held in its 2001 decision in the Gila River General Adjudication that the primary purpose of the reservation there was to provide a homeland, not agriculture, so it was a lesser amount of water that they came to. But PIA, nonetheless, drives perception of tribes’ quantifiable water rights and elevates those economic considerations over traditional or cultural concerns. And then, when PIAs combined with a mandatory state court adjudication of tribal water rights by the McCarran Amendment, you get a framework that broadly encourages settlements over litigation because litigation is very expensive, lasts decades, and results in no infrastructure. It results in paper water, not wet water, as real water law lawyers would describe it.

 

The McCarran Amendment generally provided a waiver of the United States’ sovereign immunity and required that state courts would be the form to adjudicate water rights, including federal and state interests. All that litigation, of course, takes place within what is the generally accepted framework of the persistent federal conflict of interest because the United States would simultaneously be representing the interests of the tribes as well as the interests of the Bureau of Land Management and other bodies. And as, I’m sure, A.J. will expound upon, there’s a lot of language in the opinion, majority opinion here, about what it means to be a sovereign trustee or a fiduciary and what it doesn’t mean if you’re a sovereign and also a trustee or a fiduciary.

 

And really, what all of that underscores is that these tend to be much more political than legal questions. Since 1978, since the Big Horn adjudications, there have been 40 tribal water rights settlements, about 40 that have been through with either Congressional or Court approval. By comparison in that time, there have been just three finalized general stream adjudications, including Arizona v. California, the Big Horn cases, and the Mescalero Apache tribes’ water rights. Since 1989, it has been the U.S. presidential policy to always seek settlements over litigation in terms of Indian water law.

 

There’s little tribal inclusion in any of the federal projects that are out there. They’re typically not consulted or included in the formation of the interstate compacts that quite arguably curtail tribal uses of water. The tribes rarely benefit from those projects. There’s a lack of tribal water allocation in those federal water projects, and of course, Indian Country is routinely, entirely left out of infrastructure for water delivery.

 

More problems. Typically, in the congressional settlement approach, the premise is the Indian tribes give up their very early priority dates for to very large volumes of water. They settle claims against the United States for those, and in return, they get money in settlement for those claims so that they can build-out basic water infrastructure. But often, that’s been done without adequate funding or development plans, and the Bureau of Reclamation has proven to be not the best project manager. And we routinely see cost overruns as water infrastructure projects, particularly in the Desert Southwest, end up costing much, much more than Congress and the parties had anticipated in their settlement acts.

 

There’s a lot of pressure on tribal governments to do this in that settlements include all tribal water — past, present, and future — so that it’s a very politically fraught process with a lot of negotiation and planning and requires tribes and all parties to deal with the undeveloped portions of tribal allocations when, in many instances, the water’s already over-appropriated by junior, but developed, and existing non-Indian water uses. The bottom line is that the availability of adequate and reliable water supplies for municipal and industrial uses would also be the basis in Indian Country on-reservation just as it is off-reservation, but tribes typically have a much harder and much more expensive time getting to that basic infrastructure.

 

This is the flowchart of what a typical Indian water rights process looks like, and so, you can see why it might take five decades to do with all these different players from the state, perhaps multiple states, from the Department of Justice, the Office of Management and Budget within the tribe, how the Department of the Interior’s involved — and both the House and Senate are involved — and the committee process with different working groups and all that technical information that goes into it to ultimately come up with a piece of congressional legislation that will settle everything. Fort Belknap, for example, the tribe from the Winters case just had its water rights settlement legislation introduced last month by Senator Steve Daines. Now, well more than a hundred years after their water rights are established, they’re still not quantified.

 

So how does this present -- how does all this background present in this case? In 2003, the Navajo Nation sued the Department of the Interior, the Secretary of the Interior, the Bureau of Reclamation, the Bureau of Indian Affairs, bringing claims under NEPA and a breach of trust claim for their failure to consider the Nation’s, as yet undetermined, water rights in their management of the Colorado River, arguing that the United States had control of their water rights, prevented the Nation from asserting its own water rights in Arizona v. California, and that, therefore, there was some attendant trust responsibility for the United States to at least provide an accounting of what the Nation’s trust assets were in the Colorado River and otherwise. Several parties — including the states of Arizona and Nevada and various state, water, irrigation, agricultural districts and authorities — intervened, trying to protect their interests in the Colorado River water.

 

The case has made its way to the Ninth Circuit now several times. The first time, the Ninth Circuit held that the Nation lacked Article III standing to bring its NEPA claims, but its breach of trust claim was not barred by the sovereign immunity of the United States and remanded the case to district court. And there, the Navajo Nation amended their complaint and offered a pretty narrowly tailored prayer for injunctive relief on the breach of trust claim, requesting an order that required the Department of the Interior to determine the Nation’s water interests, water needs, and to devise a plan to meet those needs. There was no request that the United States actually deliver any water or build any infrastructure. It was essentially that kind of basic accounting relief to say, “Tell us what the assets are that you hold in trust and provide a plan to at least prevent the ongoing incursion into those interests.”

 

 After reconsidering the amended breach of trust claims, the district court dismissed the Navajo Nation’s complaint because, in their view -- in the district court’s view, any attempt to amend the complaint would be futile. The district court held that it lacked jurisdiction to decide the claim because the Supreme Court reserved jurisdiction on the allocation of rights in the Colorado River under the Arizona v. California decree. And the district court also held that the Nation had not identified any specific treaty, statute, or regulation that imposed an enforceable trust duty on the United States to provide anything like the accounting that the Nation had requested.

 

The Navajo Nation appealed, and the Ninth Circuit — in an opinion by Judges Gould, Berzon, and Lee — found that the district court erred in dismissing the complaint, that what the Navajo Nation was seeking was narrow, would not amount to a judicial quantification of water rights in the Colorado River, that it was not barred by res judicata, and that the motion to amend could be properly considered because the complaint properly stated a breach of trust claim premised on the Nation’s treaties with the United States, the Nation’s federally reserved Winters rights, and especially when considered with the federal defendant’s pervasive control of the Colorado River resources. The very fabulous Judge Ken Lee — my Harvard Law classmate, class of 2000 — wrote separately, concurring to emphasize that the Navajo Nation’s requested injunctive relief does not implicate the U.S. Supreme Court’s retained jurisdiction in Arizona v. California, and he essentially said it was narrow enough to survive, and the Court should consider the claim. And then, Arizona and the United States petitioned for certiorari. And A.J. will tell us what happened.

 

Anthony J. Ferate:  And I am back with you now. Thank you, Jennifer. That was great. And I always have a presumption that most of our viewers are more East Coast than West Coast. I know that’s probably not fair, but I also think that most people on the East Coast don’t contemplate the water issues that the West deals with on a consistent and regular basis. We actually just had rain here in Oklahoma City. We’ve had rain going on in and out for the past couple of months, which is great, but many parts of, particularly, Western Oklahoma live in drought or fear of drought on a regular basis.

 

But that doesn’t even contemplate some of the issues that are being addressed out in the -- in even further West in the country. I know I’ve been through the Navajo Nation myself. I know Jennifer has on many occasions. But you have, for lack of a better term, a desert is what exists out there, and it’s become worse. There was a political article that I encourage many of you to go dig out and find out -- find that talks about there are homes in the Phoenix area that are being built without water. They’re being advertised as not having water. That is a very unique and strange thing to most people in this country, but there are million-dollar homes, multi-million-dollar homes in the Phoenix area, that are being built that don’t have the facilities that are necessary for water to them. And so, that’s in a multi-million-dollar home in the Phoenix area.

 

What are we talking about when we’re talking about the northeastern part of Arizona where there’s just not a whole lot. I believe that -- I read recently that what we’re talking about with the Navajo Nation is equivalent to roughly the size of Connecticut, to put it in perspective, but it’s nothing like Connecticut in its appearance or infrastructure or anything like that. This is rough territory, and the people that live there are rough-and-tumble folks, and they are really, really to be applauded for the work that they’ve done to continue to survive in a very rough part of our country.

 

But what we really have in this is a tale of two cases. I know I’ve said that about other tribal law cases. I know I’ve said it about the Coach Kennedy case in the past, but this one is a tale of two cases really in what the case is even about. This isn’t a fact-set fight like we had in McGirt. Or it’s not a fact-set fight like we had in Kennedy. This is a fact-set fight about what is the case that we’re looking at right now.

 

Justice Kavanaugh’s perspective is one, on behalf of the majority. Is Winters an ongoing obligation? And I think that that’s something that, I think, can be bridged between both the majority and dissent in this. Is Winters an ongoing obligation, and what does that mean for it to be an ongoing obligation? How expansive is that requirement in Winters? Justice Kavanaugh really kind of looks at this and writes from the perspective of -- for the majority that the tribe wants the U.S. to provide additional infrastructure and water supply and making sure that that additional infrastructure’s in place.

 

I don’t know how many of you have been familiar with what’s been going on in the Colorado River in the Lake Mead area. Many of these water supplies that have been traditionally and regularly available for everybody are depleting. They’re low. They have been in decline for about 30 years. I’m sure scientists might say that that will come back at some point, but at this point, it’s been 30 years, and the river volumes have declined. And the needs and demands of everybody in the area have not only remained where they were 30 years ago, but they’ve increased. And so, some of those -- some of these issues are becoming more at play as a result of that.

 

And the tribe, in this case, according to the majority, really wants to focus on additional infrastructure, requiring that additional water be provided for the needs of the tribe. Justice Gorsuch doesn’t view it quite the same way. He views the case as the tribes want an accounting of the water that is being held in trust for it. Federal government doesn’t deny that it holds water in trust for the Navajo, but they have never provided an accounting of what that water volume actually is. And so, according to Justice Gorsuch, that’s what the tribes are really asking for in this case.

 

Now, I don’t think that -- as I’ve looked through this -- these issues and looked through the opinion and looked through some of the briefing, I can see why the reasons are vague. And part of that is because the Navajo weren’t necessarily clear in their first complaint in the case, and as Jennifer pointed out earlier in her conversation, this was about providing a second amended complaint to be specifically clear about what they wanted. And one of the things that we actually come to in this as we go through -- this is from Justice Kavanaugh. “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, and other water infrastructure.” And this is a quote from oral argument on behalf -- from the counsel for Navajo Nation. “‘I can’t say that’ the United States’ obligation ‘to ensure access’ to water ‘would never require any infrastructure whatsoever.’”

 

So Justice Kavanaugh, that’s where he’s coming from is some of this confusion, and it really is an outgrowth, I think, of the initial complaint in the case and perhaps why the Ninth Circuit wanted to grant the ability to amend the complaint a second time to try to clarify that because, I think, Justice Gorsuch views the request really more as one -- as an accounting, “Tell us what we actually own and control.” Now, in some other situations, this is -- I think, in the Navajos’ situation, theirs is about getting the water that they need. Now, there are other situations where, if this case was brought forward, it may be more of a question of, “We already know what water we need. We want to know what sort of rights that we have potentially to sell some of our water.” That’s not at issue here, and I think that that would be a very different case, and I think that that’s something that we would need to look at in a much more different approach.

 

What I appreciate about Justice Gorsuch’s opinion, as always, is he’s very thorough, and he walks you down the path to help you understand where he’s coming from. He dives into international law to help understand his view of treaties and definition of treaties and why tribal law actually relates to some of the issues in Indian law -- or, I’m sorry, why tribal law relates to many of the concepts in international law, and I think that that’s something that is a very useful thing to come out of the dissent for any reader who’s trying to kind of understand some of these things or, if you’re an international law practitioner, to see some of these things and how they’re captured within tribal law.

 

But Justice Gorsuch also travels down that road of the Indian canons themselves and applying them to the case. And one of the things that Justice Gorsuch does as he’s going through this approach is he travels down the road of discussing the Tucker Act, and he’s very clear that the way that this case is decided by the majority, by Justice Kavanaugh, it relies on a statute involving the Tucker Act. And the Tucker Act is really reserved -- there’s a number of court opinions, Supreme Court opinions, that really kind of look at how to apply the Tucker Act within the tribal realm, and that’s something that Justice Gorsuch does that Kavanaugh and the majority misapplied those to this, that those should only be reserved for the Tucker Act. I wish that the majority would have addressed it more thoroughly than dropping a footnote in that appears on pages seven and eight. I would have liked it be -- to see that from my perspective because I really wanted to weigh that a whole lot more, and it’s going to require me to kind of dive into it a little bit more to kind of fully flesh out that because I think that that’s, on its own, a completely different issue that needs to be walked through and addressed.

 

I haven’t talked about Justice Thomas’s opinion, and I think that -- it’s brief. It fits with the traditional Justice Thomas view, but it’s something that -- worth exploring and discussing here because Justice Thomas spends a lot of time talking about trust relationships and what does that trust relationship look like. We throw around the term. What does it mean? And I think, at that end of the day, Justice Thomas’s view on trust is similar to his view on Indian commerce.

 

He believes, generically speaking, that Article I, Section 8, lays out what sort of regulatory authority the federal government has in relation to the tribes. And Justice Thomas believes that that’s not much. And I think this opinion that we’re looking at today, in his concurring, he kind of views that similar in a -- he views the trust relationship as a very narrow, very carefully considered trust relationship, and not much more. In fact, I would argue that he maybe says there really isn’t much of a trust relationship at all; we shouldn’t be even contemplating that.

 

The reason that I bring this up and the reason that I think that it is important for our discussion today is because, I think, within the next term or two, we’re actually going to be looking at this concurring opinion from Justice Thomas and applying it to an actual case, and that case is Apache Stronghold v. United States. It’s currently in the Ninth Circuit, and it’s currently -- or waiting any day, really, for an opinion to come out of that court on that case. It’s one that delves into free exercise and tribal use of free exercise on federal government land, but the second issue in that case is really is there a generic trust that is owed by the government to members of a tribe, I think, in this situation, in Apache Stronghold, and what is that and how can it be quantified.

 

And so, that case, no matter who wins, that -- there will be a cert request out of the Ninth Circuit for that one, and it will address squarely some of these trust issues that I think Justice Thomas is addressing, and we’ll find out, perhaps, if he’s got four other justices that agree with him or if not. And so, I think I’m going to stop there so that we can kind of have some back and forth, but I look forward to your questions, if you insert them in the Q&A or the chat. And Jennifer, what did I get wrong?

 

Jennifer Weddle:  I don’t think you got anything wrong, A.J. It was very thorough. Tom Getty (sp) already has a question for us, which is “Should the tribe have limited itself to seeking a plan to develop water and not allow the Court to think that the tribe really wanted the feds to secure water. Would it have made any difference to Justice Kavanaugh?”  My answer to that is, no, it wouldn’t have made any difference to Justice Kavanaugh.

 

And I actually have a meme for this. This is Justice Kavanaugh on Indian law. “Show me the text.” He couldn’t scream it any louder. He wants to see it in the text, and I think that was fundamentally his problem here is that while he could see what was in the treaty, he’s struggling with a difficult issue that the Court often faces when they’re seeking to translate historical meaning based on changes in the surrounding context.

 

And lots of scholars like Professor Lawrence Lessig have written about that in the constitutional context, and certainly, the Court struggles with it in the Indian law context. And they take a lot of their cues from the Department of Justice, which was firmly against the Navajo Nation here. And that was indeed -- the headline in Arizona was “Biden Triumphs Over Tribe,” which is a pretty unappealing headline for this administration, and I think highlights the difficulty when the United States is wearing multiple hats here. And I think the majority also struggles to see the trust responsibility as the bargained-for benefit that the tribes tend to see it as. Here, the Navajo Nation ceded its lands permanently for a permanent, albeit dysfunctional, protection-and-trust relationship with the United States. There should be some continuing federal responsibility to provide consistency, to provide at least an accounting of what the assets are that the federal government is protecting, but the United States’ Department of Justice here argued, well, no, because we’re a sovereign, and that’s different. That makes us different than any other trustee.

 

And at the end of the day, Justice Kavanaugh and the majority agree with that and say, okay, show us the text. If you think there’s a duty on the executive branch to do something, show me the text in the treaty. Show me the text in the statute. Congress, you do this all the time. You act to protect tribal rights. Show me a statute now that says the Secretary of the Interior has a duty to do this. And they’re not finding any because, I think, honestly, as the Navajo Nation describes it, everybody understood that you need water to live in permanent homeland where you’re going to engage in agriculture.

 

Anthony J. Ferate:  Yeah, I -- my answer to Tom is I don’t want to speak for Justice Kavanaugh. Do I think that it would have made a difference to Justice Kavanaugh? But as I told Jennifer -- Jennifer and I got on the phone. We talked about this case yesterday at length, and “Justice Ferate” at least would -- it would make a difference to me. I am -- if I’m looking at the case from the perspective of the majority and the way that the majority looked at this case, I think I agree with the majority. But if I’m looking at this case the way that Justice Gorsuch looked at this case with really a completely different perspective, I think I agree with Justice Gorsuch.

 

Do the tribes actually deserve to know and have a quantified perspective on what water is held in trust for them? I think there’s probably a good question about that. I’d like to hear an argument specifically about that. And so, I think that, at least to me, it makes a difference. I don’t know if it makes a difference to Justice Kavanaugh. I probably tend to think along the lines with Jennifer that it probably does not, but it does make a difference to me. I’d like to hear that argument about -- from both sides, from Department of Justice as well as from the Navajo about why or why not that water shouldn’t be quantified in trust for the tribes.

 

Let me talk about Jennifer’s meme, which was funny, and there was more to it that we’re not going to show as well, but we were laughing about it earlier. “Show me the text.” And I think that this opens up a larger question about tribal law, and I think Justice Gorsuch took us actually down this road in McGirt. “Show me the text.” Where is the specific text? And that grew out into Justice Kavanaugh’s opinion in Castro-Huerta, and it appears here again in this case.

 

And really, I think it’s where the majority of the Court is generally comfortable. It comes out of Justice Scalia’s textualism that he really wrote about at length, and I think that many on this Court, a large portion on the Court, adhere to that textualism that is at issue and that we’re dealing with. We haven’t done that in tribal law over the years. But I think that the real question is, and we need -- one that we need to contemplate is where is that starting point that we’re going to start our textualism because, I think, Justice Scalia even admitted it from time to time that tribal law is made up. It’s whatever we kind of feel like is the right thing to do here and there, and there was no consistency.

 

So where do we start our textualism? Do we start it back in 1900? Do we go all the way back to the 1800s? I don’t know the answer to that, but I think, at this point, the Court also doesn’t know the answer to that, and I think they’re just saying, here’s the starting point. We’re doing textualism now. And they’re not necessarily going back and contemplating when does that textualism begin.

 

Jennifer Weddle:  And I want to dovetail off that -- to something I said in the Haaland v. Brackeen “Courthouse Steps,” the week before last, which is really the Court’s the best it’s ever been on Indian law now. That’s been true in all their questioning. It’s been true in the briefing and advocacy to the Court. It’s been true in their opinions, where they’re really taking a much deeper dive than the Court ever has. In the past, it’s been very shoot from the hip. In fact, when I was a student in law school, we heard from faculty members who had clerked on the Court that they would draw straws to see which clerk had to work on the Indian cases because they were the most dreaded thing that nobody cared about or wanted to participate in. And I think we’ve come 180 degrees from that where now people are very engaged in these matters and the role of tribes in our federalism.

 

And in Justice Gorsuch’s concurring opinion, Parts II and IV, in the Haaland v. Brackeen, he traced exactly where the Court came off the rails, deviating from the Constitution, deviating from the text, and just making it up. And the Court’s been just making it up for a good 150 years. And now, they’ve realized they’re in a hole, and they’ve decided to stop digging. And so, for, I think, the majority of the Court, that means no sudden moves. Do as little as possible. Don’t change the status quo. Let’s just try to stand still like a kid who’s gotten caught doing something naughty, and they just are like, “What? I didn’t do anything.” That’s kind of where the majority is.

 

And you’ve got Justice Gorsuch saying, no, here's what we did wrong, and here’s how we can fix it. And it’s to just stick to the Constitution like glue because this reflects the grand bargain of tribal sovereignty and the government-to-government relationship and the failed experiments of the Articles of Confederation, and here’s the plan. It’s all right there. All we have to do is stick to it.

 

And Justice Thomas, as he’s been doing consistently now for decades, says, I don’t buy any of that. As A.J. said, his view is that the Indian Commerce Clause power is very narrow, and that any other specific obligations, as he says in his concurring opinion here, are the result of very specific treaties. Tribes are not a monolith. There’s no such thing as a generic set of rights that applies to all tribes, but there may be very specific promises and specific statutes and various treaties that actually give rise to some enforceable obligations.

 

But I think you’re seeing the whole Court reject the idea of the “free-floating” or “unmoored” -- “free-floating” is the word they used in Haaland v. Brackeen four times. And you see synonyms for that throughout this opinion where they’re trying to tie Indian law to something solid. And I just don’t think a majority has yet decided that Justice Gorsuch’s view of the world is a something solid. They’re just trying to not keep digging.

 

Anthony J. Ferate:  They are -- I’m thinking of a sponge. They’re trying to find something solid and moor it on a sponge, I think, is the picture that I have in my head. Something you said actually goes very well with the next question from Nathan in here, and I think I’ll answer Nathan’s question where he says, “What implications, if any, does this case have for identifying other trust relationships between the U.S. and tribes?” And I think that I’m going to use Jennifer’s words to answer that question is I think a lot of this is going to be dependent on the treaty, and I think we started to see that.

 

We saw that in Cougar Den. We saw that in Herrera v. Wyoming a few years ago. What treaties have the language in them that the Yakama have that commerce can be conducted and travel off of the reservation will be allowed? What treaties have the language in it that we had in Herrera where tribal members may hunt to provide themselves sustenance? Those are the sort of things that I think that we have to look at specifically treaty-by-treaty.

 

I don’t think that saying some of these things generically, particularly after this case -- I think, after this case, the Court has said, we want to see what’s in the treaty. We don’t want it to be some amorphous, theoretical thing. We want to see what’s actually in the treaty and what is the basis of your statement that the U.S. owes you a particular thing or not. And I think beyond that, as the majority says, we encourage you to go to Congress and ask for that.

 

And I know that, in fact, that was actually a pretty [inaudible 00:52:49] statement right up front from Kavanaugh. “Over the decades, the federal government has taken various steps to assist the people of the Western states with their water needs. The Solicitor General explains that, for the Navajo Tribe in particular, federal government has secured hundreds of thousands of acre feet of water and authorized billions of dollars for water infrastructure.” And they cited a number of bases for that. Clearly, the Navajo seem to want to know more about what that is and what else goes along with it, I think, as part of this case. But that’s an example, I think, of, again, the courts may not always be the best place for this. It may be a process of going through Congress to just simply get appropriations.

 

Jennifer Weddle:  And that’s where I think Justice Gorsuch has done great service to Indian Country in explaining the history, explaining the considerations in a way that is relatable and understandable for anyone. When he, in his concurring opinion, says the Navajo Nation is in the world’s longest running DMV line, everybody can relate to that. When he says, look, when they started this, Elvis was still on The Ed Sullivan Show. This has been a lifetime, multiple lifetimes now encompassed by trying to get somebody, anybody to help them.

 

And so, after receiving this, what is the Navajo Nation to do now? Right? Are they going to -- are they supposed to go engage more with the secretary in a political process? Well, they’ve been doing that for a hundred years. Are they supposed to go seek help from Congress? They’ve been doing that for a hundred years. Are they going to file a new case with a new even more narrowly tailored complaint? Maybe. How long is that going to run?

 

This case started in 2003. This is current events by water rights standards. Or would they do what Justice Alito questioned at oral argument? What’s to stop them from going and sticking a straw in the Colorado River -- stop asking permission, and start begging forgiveness? Go get your water.

 

Anthony J. Ferate:  I asked Jennifer that question yesterday, and I didn’t realize that Justice Alito had asked that question, but yeah, maybe we need to give the tribes the ability to secure their own water.

 

Jennifer Weddle:  And I would argue that tribes already have that inherent sovereign ability --

 

Anthony J. Ferate:  Agree.

 

Jennifer Weddle:  -- to secure their water. What tribes typically don’t have is the funding to actually construct the infrastructure necessary, but we’re in an era of self-determination where that’s changing, where tribes are developing their natural resources. They’re developing their economies in very diversified ways, and there will come a day when tribes have that ability to do that. And what are they going to do? Send in the National Guard to say, “Stop taking the water”?

 

At the end of the day, everyone -- as all the opinions point out, this is not a factual dispute, as A.J. said. Everybody agrees. There’s treaty-protected, early priority water rights of a large, but undetermined, magnitude in the Colorado River for the Navajo Nation. And the longer everyone continues to play “See no, hear no, speak no” with the Navajo water rights, the worse the problem gets and the harder the consequences will be for everyone when the Navajo Nation does assert its water rights, whether by permission or begging forgiveness.

 

Anthony J. Ferate:  I see we’ve got one more question. It looks like we’ve got like two minutes.

 

Jennifer Weddle:  The question is, “Can you think of an example where a regulation, not a treaty, would contain rights-creating or duty-imposing language? The Supreme Court cast its holding in terms larger than just treaties. The federal government must expressly accept trust responsibilities in treaty, statute, or regulation that continues a rights-creating or duty-imposing language.” The Indian Mineral Development Act regulations are a good example that have been before the Court before where, in regulation, the Department of the Interior takes on a lot of very specific managerial duties with respect to leasing and accounting for mineral royalties --

 

Anthony J. Ferate:  And that’s a Navajo issue right now, too, Jennifer.

 

Jennifer Weddle:  Yes. Back next year. So there are lots of places where, in carrying out federal statutes for broad management of resources, the Department of the Interior or the Department of Agriculture, for example, have taken on lots of responsibilities to do certain things. And the courts -- and the lower courts have addressed those kinds of things very specifically. I’d say it happens pretty routinely. Certainly, that was the case in the Mitchell cases, the tribal timber resource management. Federal law is replete. All of 25 CFR and Title 25 of the Code are about Indians, so there’s a lot in there to -- for tribes to hang their hat on.

 

Anthony J. Ferate:  I agree. And I know we’re running short on time, so I’ll just say, “I agree.”

 

Jack Capizzi:  Well, thank you all very, very much for being with us today. Thank you, in particular, to Jennifer and A.J. for joining us on this case and throughout the recent Supreme Court term on a bunch of different cases and throughout the process. As always, please keep an eye on your emails and our website for upcoming events. And if you do have any questions or comments, you can reach out to us at [email protected]. With that, thank you all so much for being with us today. We are adjourned.

 

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