Amicus Curiae Brief — Arizona, et al., Petitioners v. Navajo Nation, et al.

Supreme Court briefFeb 8, 2023

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Nos. 21-1484, 22-51

IN THE

Supreme Court of the United States

_______________

STATE OF ARIZONA, ET AL.,

Petitioners,

NAVAJO NATION, ET AL.,

Respondents.

_______________

DEPARTMENT OF THE INTERIOR, ET AL.,

Petitioners,

NAVAJO NATION, ET AL.,

Respondents.

_______________

On Writ of Certiorari to the

United States Court of

Appeals for the Ninth Circuit

_______________

BRIEF OF AMICI CURIAE

HISTORIANS IN SUPPORT OF RESPONDENTS

_______________

AMANDA L. WHITE EAGLE

NYU-YALE AMERICAN

INDIAN SOVEREIGNTY

PROJECT

40 Washington Square S

New York, NY 10012

SAM HIRSCH

LEONARD R. POWELL

Counsel of Record

TROY EMILIANO AGUIRRE*

ABRAHAM G. KANTER*

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

leonardpowell@jenner.com

* Not admitted in D.C.; supervised

by principals of the Firm

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................... iii

INTEREST OF AMICI CURIAE ................................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .......................................................... 1

ARGUMENT ...................................................................... 7

II.

THE TRUST DOCTRINE AND ITS

HISTORY ARE CENTRAL TO FEDERAL

INDIAN LAW. ........................................................... 7

The Trust Doctrine Arose Under

the Articles of Confederation

and Was Codified into the

Constitution. ................................................ 7

During the Treaty Era, the

United States Was Guided by

and Built upon the Trust

Doctrine. .................................................... 14

The Trust Doctrine Continued to

Guide Federal Action into the

Twentieth Century and Up to

Today. ......................................................... 18

THE NAVAJO NATION’S SUIT PROPERLY

SEEKS TO ENFORCE FEDERAL TREATY

OBLIGATIONS

RECOGNIZED

WINTERS. ............................................................... 22

The History of the Trust

Doctrine

Informs

the

Interpretation

Tribal

Treaties. ..................................................... 23

Winters

Applied

These

Principles to Water Rights, and

the United States Is Obligated to

Enforce Such Rights. ............................... 26

To Fulfill the Trust Doctrine,

Congress Has Provided for

Robust Judicial Enforcement of

Treaties and Treaty Substitutes,

Including Through Injunctive

Relief for Failure to Enforce

Winters Rights. ......................................... 29

CONCLUSION ................................................................ 34

APPENDIX A

LIST OF AMICI CURIAE ................................ 1a

APPENDIX B

CONGRESSIONAL

STATUTES

REAFFIRMING

THE

TRUST

RELATIONSHIP ................................................ 2a

APPENDIX C

STATEMENTS OF EXECUTIVE

POLICY

REAFFIRMING

THE

TRUST RELATIONSHIP ................................. 8a

iii

TABLE OF AUTHORITIES

CASES

Abbott v. Abbott, 560 U.S. 1 (2010) ............................. 24

Air France v. Saks, 470 U.S. 392 (1985) .............. 23, 24

Antoine v. Washington, 420 U.S. 194 (1975) ....... 18, 19

Assiniboine & Sioux Tribes of Fort Peck

Indian Reservation v. Board of Oil &

Gas Conservation of State of Montana,

792 F.2d 782 (9th Cir. 1986) ................................... 33

BG Group, PLC v. Republic of Argentina,

572 U.S. 25 (2014) .................................................... 23

Blatchford v. Native Village of Noatak &

Circle Village, 501 U.S. 775 (1991) ....................... 30

Butler & Vale v. United States, 43 Ct. Cl.

497 (1908) ................................................................. 19

Eastern Airlines, Inc. v. Floyd, 499 U.S. 530

(1991) ........................................................................ 24

Eric v. Secretary of United States

Department of Housing & Urban

Development, 464 F. Supp. 44 (D. Alaska

1978) .......................................................................... 33

Factor v. Laubenheimer, 290 U.S. 276

(1933) ........................................................................ 17

Jordan v. Tashiro, 278 U.S. 123 (1928) ...................... 17

Moe v. Confederated Salish & Kootenai

Tribes of Flathead Reservation, 425 U.S.

463 (1976) ........................................................... 28, 31

National Indian Youth Council v. Bruce,

485 F.2d 97 (10th Cir. 1973) ................................... 31

Northern Pacific Railway Co. v. Wismer,

246 U.S. 283 (1918) .................................................. 19

Oklahoma v. Castro-Huerta, 142 S. Ct. 2486

(2022) .................................................................... 7, 12

Seminole Nation v. United States, 316 U.S.

286 (1942) ............................................................. 2, 25

Skokomish Indian Tribe v. France, 269

F.2d 555 (9th Cir. 1959) .....................................31-32

Societe Nationale Industrielle Aerospatiale

v. United States District Court for

Southern District of California, 482 U.S.

522 (1987) ................................................................. 24

Table Bluff Band of Indians v. Andrus, 532

F. Supp. 255 (N.D. Cal. 1981) ................................ 33

Tucker v. Alexandroff, 183 U.S. 424 (1902) .............. 17

United States v. Jicarilla Apache Nation,

564 U.S. 162 (2011) .................................................... 1

United States v. Lara, 541 U.S. 193 (2004).... 13, 15, 18

United States v. Mitchell, 463 U.S. 206

(1983) .................................................................... 2, 30

United States v. Schooner Peggy, 5 U.S. (1

Cranch.) 103 (1801) ................................................. 17

Vigil v. Andrus, 667 F.2d 931 (10th Cir.

1982) .......................................................................... 33

Weinberger v. Rossi, 456 U.S. 25 (1982) .................... 20

Winters v. United States, 207 U.S. 564

(1908) .................................................. 4, 20, 27, 28, 29

Worcester v. Georgia, 31 U.S. 515 (1832) ............. 25, 26

Yoder v. Assiniboine & Sioux Tribes of Fort

Peck Indian Reservation, 339 F.2d 360

(9th Cir. 1964) .......................................................... 31

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. art. I, § 8, cl. 3 ........................................... 13

U.S. Const. art. I, § 8, cl. 11 ......................................... 17

U.S. Const. art. I, § 8, cl. 18 ..................................... 3, 13

U.S. Const. art. II, § 2, cl. 2 ......................................... 13

U.S. Const. art. III, § 2 ................................................ 29

U.S. Const. art. VI, cl. 2 ..................................... 3, 13, 14

25 U.S.C. § 71 ................................................................ 19

28 U.S.C. § 1331(a) (1964 ed.) ...................................... 30

28 U.S.C. § 1345 ............................................................ 31

28 U.S.C. § 1362 ............................................................ 31

28 U.S.C. § 1505 ............................................................ 30

Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 52 ..................... 10

Act of Oct. 10, 1966, Pub. L. No. 89-635, 80

Stat. 880.................................................................... 28

Act of Oct. 21, 1976, Pub. L. No. 94-574, 90

Stat. 2721.................................................................. 32

Treaty of Paris, 1783, 8 Stat. 80 .................................... 8

Treaty with the Cherokee, 1785, 7 Stat. 18 .. 2, 8, 9, 10

Treaty with the Chickasaw, 1786, 7 Stat. 24 .............. 8

Treaty with the Choctaw, 1786, 7 Stat. 21 .............. 8, 9

Treaty with the Comanche, 1846, 9 Stat.

844 ............................................................................. 16

Treaty with the Creeks, 1790, 7 Stat. 35 ................... 16

Treaty with the Creeks, 1833, 7 Stat. 417 ................. 15

Treaty with the Florida Tribes of Indians,

1823, 7 Stat. 224....................................................... 15

Treaty with the Kickapoo, 1819, 7 Stat. 200 ............. 15

Treaty with the Menominee, First

Stipulation, 1831, 7 Stat. 342 ................................. 15

Treaty with the Nez Perces, 1863, 14 Stat.

647 ............................................................................. 16

Treaty with the Osage, 1808, 7 Stat. 107 ................... 15

Treaty with the Osage, 1865, 14 Stat. 687 ................. 15

Treaty with the Ottawa, 1816, 7 Stat. 146 ................ 16

Treaty with the Ottawa, etc., 1836, 7 Stat.

491 ............................................................................. 16

Treaty with the Sauk and Foxes, 1804, 7

Stat. 84...................................................................... 15

Treaty with the Shawnee, 1854, 10 Stat.

1053 ........................................................................... 15

Treaty with the Stockbridge and Munsee,

1856, 11 Stat. 663..................................................... 16

Treaty with the Tribes of Middle Oregon,

1855, 12 Stat. 963..................................................... 16

vii

Treaty with the Wyandot, 1795, 7 Stat. 49 ............... 15

LEGISLATIVE MATERIALS

JOURNALS OF THE CONTINENTAL

CONGRESS, 1774-1789 (Roscoe R. Hill

ed., 1936)................................................................... 13

JOURNALS OF THE CONTINENTAL

CONGRESS, 1774-1789 (Roscoe R. Hill

ed., 1937)................................................................... 13

Fulfilling the Federal Trust Responsibility:

The Foundation of the Government-toGovernment Relationship: Hearing

Before the S. Comm. on Indian Affairs,

112th Cong. (2012) .................................................. 20

H.R. Rep. No. 23-474 (1834) ...................................17-18

H.R. Rep. No. 89-2040 (1966) ...................................... 31

H.R. Rep. No. 94-1656 (1976) ...................................... 32

Ordinance for the Regulation of Indian

Affairs, in 31 JOURNALS OF THE

CONTINENTAL CONGRESS, 1774-1789

(John C. Fitzpatrick ed., 1934) .............................. 10

S. Rep. No. 94-996 (1976) ............................................. 32

OTHER AUTHORITIES

25 C.F.R. § 225.1(a) ...................................................... 21

25 C.F.R. § 291.8(a)(5) ................................................. 21

25 C.F.R. § 291.11(b)(5) ............................................... 21

viii

Donna L. Akers, Decolonizing the Master

Narrative:

Treaties

and

Other

American Myths, 29 WICAZO SA REV. 58

(2013) ...................................................................24-25

ARTICLES OF CONFEDERATION OF 1781,

ART. IX ..........................................................3, 7, 8, 11

Amy Coney Barrett, Substantive Canons

and Faithful Agency, 90 B.U. L. REV.

109 (2010) ................................................................. 26

Mary Sarah Bilder, Without Doors: Native

Nations and the Convention, 89

FORDHAM L. REV. 1707 (2021) .. 9, 10, 11, 12, 13, 16

Maggie Blackhawk, Federal Indian Law as

Paradigm Within Public Law, 132

HARV. L. REV. 1787 (2019) .........................14-15, 19

Bureau of Reclamation, Indian Trust Asset

Policy and NEPA Implementing

Procedures (Aug. 31, 1994) .................................... 22

Felix S. Cohen’s Handbook of Federal

Indian Law (Nell Jessup Newton eds.

2012) .................................... 2, 9, 10, 17, 18, 20, 21, 22

Raymond

Cross,

American

Indian

Education: The Terror of History and

the Nation’s Debt to the Indian Peoples,

21 U. ARK. LITTLE ROCK L. REV. 941

(1999) ........................................................................ 16

THE FEDERALIST NO. 42 (James Madison)

(Clinton Rossiter ed., 1961) ............................. 12, 13

Philip P. Frickey, Marshalling Past and

Present: Colonialism, Constitutionalism, and Interpretation in Federal

Indian Law, 107 HARV. L. REV. 381

(1993) ........................................................................ 26

David M. Golove & Daniel J. Hulsebosch, A

Civilized Nation: The Early American

Constitution, the Law of Nations, and

the

Pursuit

International

Recognition, 85 N.Y.U. L. REV. 932

(2010) .......................................................................8-9

David M. Golove, Treaty-Making and the

Nation: The Historical Foundations of

the Nationalist Conception of the Treaty

Power, 98 MICH. L. REV. 1075 (2000) ..................7-8

LOUIS HENKIN, FOREIGN AFFAIRS AND THE

UNITED STATES CONSTITUTION (2d ed.

1996) .......................................................................... 14

Letter from Benjamin Hawkins to Thomas

Jefferson (June 14, 1786), in 9 THE

PAPERS OF THOMAS JEFFERSON: 1

NOVEMBER 1785 TO 22 JUNE 1786 (Julian

P. Boyd ed., 1954).................................................... 11

Letter from James Madison to James

Monroe (Nov. 27, 1784), in 8 THE

PAPERS OF JAMES MADISON (Robert A.

Rutland et al. eds., 1973) ........................................ 12

Memorandum from Solicitor of the Interior

Leo M. Krulitz to Assistant Attorney

General James W. Moorman (Nov. 21,

1978) .......................................................................... 22

North Carolina Protests Against the

Treaties of Hopewell (Jan. 6, 1787), in 18

EARLY AMERICAN INDIAN DOCUMENTS:

TREATIES AND LAWS, 1607-1789:

REVOLUTION AND CONFEDERATION

(Alden T. Vaughan & Colin G. Calloway

eds., 1994) ................................................................. 11

FRANCIS PAUL PRUCHA, AMERICAN

INDIAN POLICY IN THE FORMATIVE

YEARS (1962) ........................................................... 15

Jack Rakove, Solving a Constitutional

Puzzle: The Treatymaking Clause as

Case Study, 1 PERSP. ON AM. HIST. 233

(1984) ........................................................................ 18

Special Message on Indian Affairs, 1 Pub.

Papers 564 (July 8, 1970)........................................ 21

Mary Christina Wood, Indian Land and the

Promise of Native Sovereignty: The

Trust Doctrine Revisited, 1994 UTAH L.

REV. 1471 ................................................................. 32

CHARLES F. WILKINSON, AMERICAN

INDIANS, TIME, AND THE LAW: NATIVE

SOCIETIES

MODERN

CONSTITUTIONAL DEMOCRACY (1987) ................. 19

INTEREST OF AMICI CURIAE 1

Amici curiae listed in Appendix A are professors at

Columbia University, New York University, Princeton

University, the University of Washington, and Yale

University who teach and research the history of

relations between Native nations and the United States.

They have an interest in the cohesive and correct

development of this Court’s Indian-law jurisprudence

and the accurate recitation of the history that underlies

it. Amici therefore file this brief to aid the Court in

understanding the history of the trust doctrine.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The main question presented in these consolidated

cases requires the Court to consider the history of the

Indian trust relationship, which this Court has

recognized as “a sovereign function subject to the

plenary authority of Congress.” United States v.

Jicarilla Apache Nation, 564 U.S. 162, 175 (2011). In

petitioners’ telling, the Navajo Nation seeks sweeping

and unprecedented judicial intervention in a matter

traditionally allocated to Executive Branch discretion.

The trust doctrine and its history, however, tell a

different story. The historical record reveals that

Congress and the Executive have bound themselves

since the Founding to protect and care for Native

nations—including by ensuring they have adequate

No counsel for any party authored this brief in whole or in part,

and no person or entity other than the amici and their counsel made

a monetary contribution intended to fund the preparation or

submission of this brief. Amici file this brief as individuals and not

on behalf of the institutions with which they are affiliated.

water for their homelands—and that Congress has

tasked the Judiciary with holding the Executive

accountable through suits like this one.

“[T]he Government’s dealings with Indians” have

been “long dominated” by the “general trust relationship

between the United States and the Indian people.”

United States v. Mitchell (Mitchell II), 463 U.S. 206, 225

(1983).

Via the hundreds of tribal treaties that

exchanged millions of acres of Native land for legal

obligations of protection and care, the United States

created the trust doctrine and “charged itself with moral

obligations of the highest responsibility and trust.”

Seminole Nation v. United States, 316 U.S. 286, 297

(1942). Courts frequently invoke the trust obligation as

a “limit[]” on “executive power.” Cohen’s Handbook of

Federal Indian Law § 5.04[1] (Nell Jessup Newton ed.,

2012) [hereinafter Cohen]. Yet it has long been more:

The political branches have constructed the trust

doctrine to guide and motivate them in their dealings

with Native nations. That has been so throughout this

Nation’s history and remains so today.

The trust doctrine predates even the Founding.

Treaties with Native nations were among the first

negotiated and ratified under the Articles of

Confederation. Those treaties guaranteed by law

affirmative federal protection and care. They also

provided mechanisms that allowed Native nations to

ensure enforcement of those provisions, such as by

sending a Native deputy to Congress to call forth the

“justice of the United States.” Treaty with the

Cherokee, art. XII, 1785, 7 Stat. 18. Founding-era

leaders, native and non-native alike, read the United

States’ foundational documents against the backdrop of

these treaties as supreme law. The trust doctrine thus

informed the very structure of both the Articles of

Confederation and the Constitution that was soon to

come.

Despite these developments, the status of federal

power over Indian affairs under the Articles was not

without controversy. The Articles reserved to the

states their “legislative right[s] … within [their] own

limits.” ARTICLES OF CONFEDERATION OF 1781, art. IX,

para. 4. A minority of states asserted aggressive

interpretations of this clause and encroached on Native

nations’ rights and lands. This dispute risked wars the

United States could not afford, and it partly motivated

the adoption of the Constitution.

Naturally, then, Indian affairs was a key issue at the

Constitutional Convention. Concerned about whether

the United States would uphold its own treaty law

against self-interested states, Native nations sent

deputies to the Constitutional Convention, where Indian

affairs was a key issue. The visit proved pivotal to

convincing the Framers to constitutionalize this early

relationship. To do so, the Framers ensured that both

existing and future treaties would be “the supreme Law

of the Land,” U.S. CONST. art. VI, cl. 2, and would be

enforced by Congress under its enumerated powers,

including its power to make all necessary and proper

laws, id. art. I, § 8, cl. 18.

After ratification and throughout the nineteenth

century, the Executive and Legislative Branches

continued to bind themselves through treaties that

exchanged lands and other tribal concessions for pledges

of federal protection and care—among countless other

obligations. The political branches, in turn, acted to

fulfill these treaty obligations through legislation and

regulation. They did so not out of guilt or moral

obligation but because they viewed it as legally

mandated. It reflected the framing generation’s original

intent to constitutionalize the trust doctrine. Further,

historical principles of treaty interpretation—applicable

to all treaties, tribal and nontribal—mandated a goodfaith approach to treaties.

True, in 1871 Congress purported to end

treatymaking with Native nations, finally yielding to the

House’s long-expressed desire for greater involvement

in Indian affairs. Treaties already ratified, however,

remained in effect. Moreover, even as relations with

Native nations became increasingly governed by

statute, those statutes often took the form of “treaty

substitutes”—that is, bilateral agreements with Indian

tribes negotiated by the Executive and then ratified by

both chambers of Congress. Notably, Winters v. United

States, 207 U.S. 564 (1908), involved such a treaty

substitute.

Across a range of contexts, the political branches

have continued to hold faithful to their obligations under

the trust doctrine and have further strengthened those

commitments throughout the twentieth century and into

the twenty-first. In statutes, regulations, orders,

reports, memoranda, statements, and remarks,

Congress and the Executive have repeatedly codified

the trust doctrine into law and cited it as the reason for

their actions. Importantly, the trust doctrine was not

crafted simply to call forth judicial solicitude and limit

malfeasance by Congress and the Executive. Rather,

the history of the trust doctrine highlights that its

primary function has been to motivate Congress and the

Executive to make laws—including laws by treaty—to

protect and care for Native peoples by supporting

sovereignty and upholding obligations required by

treaties and treaty substitutes.

The trust doctrine and its history compel three

conclusions directly relevant to this case.

First, the trust doctrine plays a central role in

interpreting treaties and treaty substitutes with Native

nations. This is true not only because of the “Indian

canon” of treaty construction—but because the trust

doctrine, codified into the Constitution, motivated the

actions of Congress and the President and informed the

negotiations and intent of the sovereign parties. The

United States represented to Indians that it negotiated

treaties and agreements in good faith and that it was

compelled to do so because of its commitment to the

trust doctrine. Native nations, moreover, understood

the United States to negotiate in good faith because that

background understanding applied to all treaty

negotiations. This context is essential to understanding

the federal and tribal intent behind tribal treaties and

treaty substitutes—sovereign intents that this Court

has recognized are central to interpreting all treaties,

tribal or otherwise.

Second, Winters is a straightforward application of

these interpretation principles to water rights. Lands in

the West were often arid but, as in Winters, Native

nations possessed relevant water rights before cession

by virtue of possession and sovereign power. The

United States and Native nations knew that the arid

lands they were reserving could not serve as tribal

homelands without permanent access to adequate water.

The Native nations, therefore, intended to retain their

water rights to the extent necessary to establish a

sovereign homeland on those lands. The United States’

good-faith promises of permanent reservations—again,

an intention motivated by the trust doctrine—were

understood to guarantee the retained rights necessary

to preserve Native nations as nations—that is, across

generations to come. Winters recognized this. The logic

of Winters and the trust doctrine further compels a

simple corollary: that Native nations—which at the time

could not even bring their own water-rights suits—

understood that the United States would act to vindicate

these treaty rights.

Third, Congress intended for robust judicial

enforcement of treaty obligations. Initially, Congress

alone monitored compliance with treaty obligations.

Over time, however, Congress tasked the courts to

support its enforcement responsibilities. It first did so

in the monetary context. But as time went on, Congress

recognized that further judicial support was needed to

ensure executive compliance. This culminated in 1972

when Congress, after considering the impact on Indian

tribes, amended § 702 of the Administrative Procedure

Act to waive federal sovereign immunity for injunctive

suits, clearing the way for cases precisely like the one

here.

The historical record thus confirms that the Navajo

Nation properly seeks to enforce the United States’

obligation to secure the Nation’s water rights. Amici

urge this Court to affirm the Ninth Circuit’s judgment.

ARGUMENT

THE TRUST DOCTRINE AND ITS HISTORY ARE

CENTRAL TO FEDERAL INDIAN LAW.

A. The Trust Doctrine Arose Under the Articles

of Confederation and Was Codified into the

Constitution.

1. The trust doctrine arose from the relationship

between Native nations and the United States that

existed under the Articles of Confederation.

Governance of Indian affairs under the Articles was

heavily contested. The Articles divided authority over

Indian affairs between the federal and state

governments, authorizing Congress to “regulat[e] the

trade and manag[e] all affairs with the Indians” but

reserving to the states their “legislative right[s] …

within [their] own limits.” ARTICLES OF CONFEDERATION OF 1781, art. IX, para. 4. “Together, these

provisions led to battles between national and state

governments over who could oversee relations with

various Tribes.” Oklahoma v. Castro-Huerta, 142 S. Ct.

2486, 2506 (2022) (Gorsuch, J., dissenting).

The nationalists turned to treaties to assert the

national government’s superior role in Indian affairs.

Treaties were arguably the supreme law of the land

except as to those subjects for which the Articles of

Confederation expressly reserved state authority. See

David M. Golove, Treaty-Making and the Nation: The

Historical Foundations of the Nationalist Conception of

the Treaty Power, 98 MICH. L. REV. 1075, 1107–09 (2000);

ARTICLES OF CONFEDERATION OF 1781, art. IX, para. 1.

The Treaty of Paris, for example, set the borders of the

United States and provided a vital backdrop for all

founding documents. Treaty of Paris, art. II, 1783, 8

Stat. 80. Treaties, therefore, were an ideal mechanism

for resolving the Articles’ ambiguity in favor of national

power.

Representatives of the United States negotiated

treaties with Native nations that reflected broad views

of federal power—provisions that foreshadowed

language drafted into the Constitution. In 1785, the

Treaty of Hopewell placed plenary power over Native

nations in Congress, providing, for instance, that “the

United States in Congress assembled shall have the sole

and exclusive right of regulating the trade with the

Indians, and managing all their affairs in such manner as

they think proper.” Treaty with the Cherokee, art. IX;

see, e.g., Treaty with the Choctaw, art. VIII, 1786, 7 Stat.

21 (same); Treaty with the Chickasaw, art. VIII, 1786, 7

Stat. 24 (same). The United States also demanded

massive cessions in the form of thousands and thousands

of acres of land from each Native nation. See, e.g., Treaty

with the Cherokee, art. IV; Treaty with the Choctaw,

art. III; Treaty with the Chickasaw, art. III. Further,

having struggled financially following the Revolution,

the fledgling United States desperately needed to avoid

further wars with Native nations—wars it was likely to

lose. See David M. Golove & Daniel J. Hulsebosch, A

Civilized Nation: The Early American Constitution, the

Law of Nations, and the Pursuit of International

Recognition, 85 N.Y.U. L. REV. 932, 991–92 (2010).

Thus, the United States’ early treaties with Native

nations secured peace, the national government’s status

as the supreme sovereign over Indian relations, and

exclusive allegiance between Native nations and the

United States and “no other sovereign whatsoever.”

E.g., Treaty with the Choctaw, art. II.

Though these concessions were substantial, Native

nations demanded and received equally significant

promises in return. To start, Native nations shared the

nationalists’ interest in establishing a federal-tribal

relationship: Colonial governments had frequently

invaded Native lands, and the new states continued to

aggressively pursue Indian lands and raid Indian

settlements. See Cohen § 1.02[1]; Mary Sarah Bilder,

Without Doors: Native Nations and the Convention, 89

FORDHAM L. REV. 1707, 1707–08 (2021). Further, the

same treaty articles authorizing Congress to manage

affairs with Indians provided that Congress would do so

only “[f]or the benefit and comfort of the Indians.” E.g.,

Treaty with the Cherokee, art. IX. Similarly, the

provisions in which Native nations agreed to align solely

with the United States and no other sovereign also

guaranteed Native nations the “protection” of the

United States. E.g., id. art. III. These treaties also

included essential mechanisms of enforcement for their

provisions. The Treaty of Hopewell provided that the

Indians would “have the right to send a deputy of their

choice, whenever they think fit, to Congress,” so they

could “have full confidence in the justice of the United

States, respecting their interests.” Id. art. XII.

What emerged was the beginning of the trust

doctrine. The national government would receive

millions of acres of Native lands, secure the allegiance of

Native nations, and exercise broad powers over Indian

affairs. But it would exercise its broad powers for the

benefit of Indians, and Native nations would have

mechanisms for ensuring that the United States fulfilled

its end of the bargain. This arrangement was quickly

embedded into the national government. The national

government viewed treaties as forming the backdrop

against which to read founding documents, and it began

to interpret the Articles against that backdrop. See

Ordinance for the Regulation of Indian Affairs, in 31

JOURNALS OF THE CONTINENTAL CONGRESS, 1774–1789,

at 490, 491 (John C. Fitzpatrick ed., 1934) (crafting

federal departments and appointing federal agents to

each region); Bilder, supra, at 1714–15. This culminated

in the Northwest Ordinance of 1787, in which “Congress

announced its vision of Indian policy.” Cohen § 1.02[3].

Reaffirming the pledges it had made via treaty,

Congress declared that “[t]he utmost good faith shall

always be observed towards the Indians.” Act of Aug. 7,

1789, ch. 8, 1 Stat. 50, 52 (reproducing the Northwest

Ordinance of 1787 enacted by the Continental Congress);

Bilder, supra, at 1742–45.

2. Despite these developments, the status of federal

power under the Articles of Confederation, as informed

by early treaties, was not without controversy.

Southern states protested Congress’s assertions of

federal power—Georgia and North Carolina most

fervently—calling them encroachments on the states’

“legislative rights” reserved under the Articles of

Confederation. Bilder, supra, at 1707–08. Further, the

Articles extended federal power only to Indians “not

members of any of the States,” ARTICLES OF

CONFEDERATION OF 1781, art. IX, para. 4, so Georgia

and North Carolina seized on this language to argue that

Native peoples within their physical boundaries were

“members” of their states. Letter from Benjamin

Hawkins to Thomas Jefferson (June 14, 1786), in 9 THE

PAPERS OF THOMAS JEFFERSON: 1 NOVEMBER 1785 TO

22 JUNE 1786, at 641 (Julian P. Boyd ed., 1954). These

states were in the minority, but they were committed to

their theory of constitutionalism and created continued

controversy.2 Indeed, encroachments on Native treaties

and lands perpetuated under this theory of

constitutionalism nearly drove the United States to war,

as Native nations in the northwest united into a

confederacy, and Native nations in the south considered

doing so as well. Bilder, supra, at 1726–27, 1745–47.

See, e.g., Letter from Benjamin Hawkins to Thomas Jefferson

(June 14, 1786), in 9 THE PAPERS OF THOMAS JEFFERSON: 1

NOVEMBER 1785 TO 22 JUNE 1786, at 640–41 (Julian P. Boyd ed.,

1954); North Carolina Protests Against the Treaties of Hopewell

(Jan. 6, 1787), in 18 EARLY AMERICAN INDIAN DOCUMENTS:

TREATIES

AND

LAWS,

1607–1789:

REVOLUTION

AND

CONFEDERATION, at 442 (Alden T. Vaughan & Colin G. Calloway

eds., 1994).

The dispute over Indian affairs was so important and

proved so intractable that it partly motivated the

adoption of the Constitution. The Articles’ limits on

congressional power in this area, Madison explained,

were “obscure and contradictory.” THE FEDERALIST

NO. 42, at 268 (James Madison) (Clinton Rossiter ed.,

1961).

Aggressive interpretation of those limits,

Madison feared, would “destroy the authority of

Congress altogether.” Letter from James Madison to

James Monroe (Nov. 27, 1784), in 8 THE PAPERS OF

JAMES MADISON 156, 156 (Robert A. Rutland et al. eds.,

1973). It was evident that the compromise struck by the

Articles of Confederation was “unworkable.” CastroHuerta, 142 S. Ct. at 2506 (Gorsuch, J., dissenting).

Naturally, then, “[w]hen the framers convened to

draft a new Constitution, this problem was among those

they sought to resolve.” Id. It was well known that

Indian affairs would be a key issue at the Convention.

So much so that the Cherokee, Choctaw, and Chickasaw

Nations sent deputies to the convention to ensure that

the trust doctrine established under the Articles of

Confederation would be codified into the new

Constitution—by securing national power over Indian

affairs; the explicit supremacy of federal law, including

treaties; an enforcement mechanism for breaches of

treaty provisions; and a federal policy of “purchase”

rather than “conquest” toward Native nation lands.

Bilder, supra, at 1707–08. Nationalists, of course, also

advocated for these positions. The deputies from the

Native nations, though, proved especially persuasive, as

seen most clearly in the Committee and Secretary

Reports published following the deputies’ visit. See, e.g.,

33 JOURNALS OF THE CONTINENTAL CONGRESS, 1774–

1789, at 477–80 (Roscoe R. Hill ed., 1936) (report of

Committee on Indian Affairs); 34 id. at 124–25 (report of

Secretary at War on Indian affairs). That visit—and the

increasing concerns about the rise of confederacies of

Native nations—pushed the Framers to choose the path

of voluntary purchase of Native lands over war. Bilder,

supra, at 1745–49.

The nationalists and the Native nations’ deputies

thus succeeded in codifying the trust doctrine into the

Constitution. The Constitution granted the federal

government “broad general powers” over Indian affairs.

United States v. Lara, 541 U.S. 193, 200 (2004). Key

among those powers was the authority to negotiate

treaties with Indian tribes. U.S. CONST. art. II, § 2, cl. 2.

The Constitution contained no reservation of state

authority over Indian affairs or subjects governed by

treaty, rendering the treaty power (and other Indianaffairs powers) “very property unfettered” from the

prior “limitations in the Articles of Confederation.” THE

FEDERALIST NO. 42, at 268 (James Madison). Moreover,

the Constitution expressly provided that treaties would

constitute “the supreme Law of the Land,” U.S. CONST.

art. VI, cl. 2, and it empowered Congress to make laws

to enforce treaties through a range of powers, including

those conferred by the Commerce Clause, U.S. CONST.

art. I, § 8, cl. 3, and the Necessary and Proper Clause,

id. cl. 18. Indeed, recognizing the scope of these powers,

the Framers deleted as “superfluous” an explicit

reference to the power to enforce treaties from a draft

of the Necessary and Proper Clause. LOUIS HENKIN,

FOREIGN AFFAIRS AND THE UNITED STATES

CONSTITUTION 481 n.111 (2d ed. 1996).

The Framers therefore recommitted the United

States to the principles and promises ensconced in

existing treaties—national protection of Native peoples

in exchange for massive land cessions, ongoing peace,

and exclusive allegiance. The Supremacy Clause applied

not just to treaties that would be negotiated going

forward, but also to treaties already “made[] under the

Authority of the United States.” U.S. CONST. art. VI, cl.

2 (emphasis added). So, even as the Constitution

abandoned the failures of the past, it brought along the

trust doctrine as part of the foundation for the federal

Indian policy of the newly reformed United States.

B. During the Treaty Era, the United States Was

Guided by and Built upon the Trust Doctrine.

Under the new Constitution, the trust doctrine was

central to Indian affairs. It guided and motivated the

actions of federal officials. In turn, it grew more robust

as those actions solidified and expanded the doctrine.

This was most evident in treaties. Treaties with

Native nations were pervasive during the first hundred

years of the United States’ history. Indeed, the majority

of all treaties formed by the United States during this

period were with Native nations. Maggie Blackhawk,

Federal Indian Law as Paradigm Within Public Law,

132 HARV. L. REV. 1787, 1831–32 (2019). These treaties

served as the primary vehicle for mediating the

relationship between the United States and Native

nations. See Lara, 541 U.S. at 200–01; FRANCIS PAUL

PRUCHA, AMERICAN INDIAN POLICY IN THE

FORMATIVE YEARS 44–49 (1962).

These treaties followed in the footsteps of those

made under the Articles of Confederation, promising

Native nations the protection of the United States in

exchange for massive land cessions, ongoing peace, and

exclusive allegiance. E.g., Treaty with the Wyandot, art.

V, 1795, 7 Stat. 49; Treaty with the Sauk and Foxes, art.

I, 1804, 7 Stat. 84; Treaty with the Florida Tribes of

Indians, art. III, 1823, 7 Stat. 224. They also went

further. Federal officials extended the United States’

trust obligation by promising Native nations “care,”3

encompassing “every assistance in [the United States’]

power.”4 Indeed, this was reflected not just in broad

promises but in countless specific pledges to assist and

provide for Native nations and their members in areas

Treaty with the Osage, art. X, 1865, 14 Stat. 687; accord, e.g.,

Treaty with the Shawnee, art. XIV, 1854, 10 Stat. 1053; Treaty with

the Kickapoo, art. IX, 1819, 7 Stat. 200.

Treaty with the Osage, art. I, 1808, 7 Stat. 107; accord, e.g., Treaty

with the Creeks, art. I, 1833, 7 Stat. 417; Treaty with the

Menominee, First Stipulation, 1831, 7 Stat. 342.

such as education,5 health care,6 and the care of Native

children.7

As the political branches negotiated, interpreted,

and administered these treaties, they strove to “act with

justice and correctness towards [Indians], … with

perfect good faith.” Treaty with the Ottawa, art. III,

1816, 7 Stat. 146; see also, e.g., Treaty with the Creeks,

art. XIII, 1790, 7 Stat. 35 (promising to carry the treaty

“into full execution, with all good faith and sincerity”);

Treaty with the Comanche, art. X, 1846, 9 Stat. 844

(same). They did so not out of guilt or moral obligation,

but because they viewed it as legally mandated.

That legal obligation reflected the framing

generation’s original intent to constitutionalize the trust

doctrine. As discussed, at the time of the Founding, the

rise of a confederacy of Native nations in the north and

visits from delegates sent by Native nations impressed

on the Framers that they faced “a choice: treaties under

which white settlement would be based on purchase or

an Indian war.” Bilder, supra, at 1745. The Framers

chose the former as the “cornerstone of federal Indian

policy,” id. at 1749, and that path could be pursued only

See Raymond Cross, American Indian Education: The Terror of

History and the Nation’s Debt to the Indian Peoples, 21 U. ARK.

LITTLE ROCK L. REV. 941, 950 (1999) (noting that 110 treaties

provided for Indian education).

E.g., Treaty with the Tribes of Middle Oregon, art. IV, 1855, 12

Stat. 963; Treaty with the Nez Perces, art. V, 1863, 14 Stat. 647.

E.g., Treaty with the Stockbridge and Munsee, art. III, 1856, 11

Stat. 663; Treaty with the Ottawa, etc., art. VI, 1836, 7 Stat. 491.

through a constitutional structure that promised good

faith.

Historical principles of treaty interpretation—

applicable to all treaties, tribal and nontribal alike—also

mandated interpretation of treaty provisions broadly

and as negotiated in “good faith.” See, e.g., Jordan v.

Tashiro, 278 U.S. 123, 127 (1928); Tucker v. Alexandroff,

183 U.S. 424, 437, 466–67 (1902). Nineteenth- and

twentieth-century courts construed all treaties “to

secure equality and reciprocity between [the parties].”

Jordan, 278 U.S. at 127. Doing so, this Court recognized,

was necessary “to avoid war and secure a lasting and

perpetual peace.” Tucker, 183 U.S. at 437. Moreover, at

the heart of this doctrine was preservation of the

constitutional separation of powers: The power to

declare war remained with Congress alone. U.S. CONST.

art. I, § 8, cl. 11. So, to avoid provoking war unilaterally,

and also to respect the Executive Branch’s role in

negotiating and administering treaties, this Court

understood that it must interpret treaty provisions

broadly and in good faith. See United States v. Schooner

Peggy, 5 U.S. (1 Cranch.) 103, 109 (1801); see also Factor

v. Laubenheimer, 290 U.S. 276, 295 (1933) (giving weight

to the “construction of a treaty by the political

department of the government”).

Thus, over the course of the nineteenth century, the

trust doctrine grew into a robust set of principles at the

center of the federal-tribal relationship—and,

importantly, at the core of treatymaking practice. See

Cohen § 5.04[3][a]; see also, e.g., H.R. REP. NO. 23-474,

at 2 (1834) (describing proposed bills as for the

“protection” of Native nations and recognizing the

obligation and “power” of protection as arising from

treaties and land cessions).

C. The Trust Doctrine Continued to Guide

Federal Action into the Twentieth Century and

Up to Today.

In 1871, Congress “purported to prohibit entering

into treaties with the ‘Indian nation[s] or tribe[s].’”

Lara, 541 U.S. at 218 (Thomas, J., concurring in the

judgment) (quoting 16 Stat. 566, codified at 25 U.S.C.

§ 71). The trust doctrine, however, continued as the

bedrock of federal Indian policy and remains so today.

Indeed, the “end” of treatymaking made no

difference for the trust doctrine because it was not

understood to be a significant change to the United

States’ relationship with Native nations. Debates over

the House’s role in treaty making and foreign affairs had

raged since the Founding. See Jack N. Rakove, Solving

a Constitutional Puzzle, in 1 PERSPECTIVES IN

AMERICAN HISTORY 233, 246–48 (Bernard Bailyn et al.

eds., 1984).

Thus, when Congress passed an

appropriations rider purporting to end treatymaking

with Native nations, it was understood as “a political

rather than a policy initiative”—the result of the Senate

yielding to the House’s desire for greater involvement in

Indian affairs. Cohen § 1.03[9]; see also Antoine v.

Washington, 420 U.S. 194, 201–02 (1975). “Congress had

to develop new procedural methods of dealing with

Indians, but practically, little changed.” Cohen § 1.03[9].

The new procedural methods differed only in form, not

in function. Collaborative lawmaking continued with the

practice of “treaty substitutes”—other forms of

lawmaking that function essentially as treaties.

CHARLES F. WILKINSON, AMERICAN INDIANS, TIME,

AND THE LAW: NATIVE SOCIETIES IN A MODERN

CONSTITUTIONAL DEMOCRACY 63–67 (1987).8 Existing

treaties, meanwhile, stayed in effect. See 25 U.S.C. § 71.

The same principles that applied to treaties applied

to these new treaty substitutes. The trust doctrine

continued to serve as the North Star when negotiating

these agreements. See, e.g., N. Pac. Ry. Co. v. Wismer,

246 U.S. 283, 288–89 (1918) (explaining that the

government “ma[de] and ratif[ied] and in good faith

carr[ied] out” an agreement setting aside the

reservation, and refusing to “subordinate the realities of

the situation to mere form”); Butler & Vale v. United

States, 43 Ct. Cl. 497, 502 (1908) (noting that when the

Colville Indians entered into an 1891 agreement to cede

half their reservation, they did so “with an implicit trust

in the good faith of the United States Government”

(quoting agreement)). This Court, in turn, interprets

and enforces treaty substitutes as identical to formal

treaties with Native nations. E.g., Antoine, 420 U.S. at

201–02 (holding that agreements ratified by bicameral

This development paralleled the trend in foreign affairs. See

Blackhawk, supra, at 1815 (charting the similarities between trends

in federal Indian law and “twentieth-century international

lawmaking … made largely by ex ante congressional-executive

agreements”).

legislation are indistinguishable from treaties); cf.

Weinberger v. Rossi, 456 U.S. 25, 30–31 (1982)

(“Congress has not been consistent in distinguishing

between Art. II treaties and other forms of international

agreements.”). Indeed, Winters was a treaty-substitute

case interpreting an 1888 agreement ratified by the

Senate and the House. See 207 U.S. at 575; infra 26–29

(discussing Winters).

True, after 1871, sources of law other than

agreements with tribes became more prominent in

Indian affairs. But there, too, the political branches

adhered to, strengthened, and broadened the trust

doctrine.

Start with Congress. Over the past century,

Congress has often pointed to the “robust and protective

trust doctrine” as motivation for oversight,

investigation, and legislation. Cohen § 5.04[3][a]. As

Senate Committee on Indian Affairs then-Chairman

Daniel Akaka explained, “All branches of the

Government, the Congress, Administration, and the

courts acknowledge the uniqueness of the Federal trust

relationship.” Fulfilling the Federal Trust Responsibility: The Foundation of the Government-toGovernment Relationship: Hearing Before the S. Comm.

on Indian Affairs, 112th Cong. 1 (2012). True to Senator

Akaka’s word, “[n]early every piece of modern

legislation dealing with Indian tribes contains a

statement reaffirming the trust relationship between

tribes and the federal government.” Cohen § 5.04[3][a].

Appendix B compiles many such examples.

The Executive Branch, too, has reinforced the

federal government’s robust commitment to the trust

doctrine. Almost every modern president has taken

administrative actions “invok[ing] the trust relationship

as a basis for regulations implementing federal statutes”

and has released policy statements to “reaffirm the trust

relationship.” Cohen § 5.04[3][a]. In his Special Message

on Indian Affairs, for example, President Nixon affirmed

the “special relationship between Indians and the

Federal government” as a result of “solemn obligations

which have been entered into by the United States

Government ... [which] continues to carry immense

moral and legal force.” Special Message on Indian

Affairs, 1 PUB. PAPERS 1970, 564–66 (July 8, 1970). He

added that to “terminate this relationship would be no

more appropriate than to terminate the citizenship

rights of any other American.” Id. Many similar

examples are compiled in Appendix C.

Administrations also established formal policies that

bind executive action to further the trust doctrine. See,

e.g., 25 C.F.R. § 225.1(a) (reiterating that the Secretary

of the Interior “continues to have a trust obligation to

ensure that the rights of a tribe or individual Indian are

protected in the event of a violation of the terms of any

minerals agreement”); 25 C.F.R. §§ 291.8(a)(5),

291.11(b)(5) (requiring the Secretary of the Interior to

consider whether class III gaming proposals are

“consistent with the trust obligations of the United

States to the Indian tribe”). Other administrative

documents have defined the Indian trust responsibility

in sweeping terms. The Commissioner of the United

States Bureau of Reclamation under President Clinton,

for instance, signed a policy document stating that “[t]he

United States has a trust responsibility to protect and

maintain [Indian] trust assets and rights [which]

requires that the United States, as trustee, deals with

the trust assets in the same manner a prudent person

would deal with his own assets.” Bureau of Reclamation,

Indian Trust Asset Policy and NEPA Implementing

Procedures 4 (Aug. 31, 1994); see also, e.g., Memorandum

from Solicitor of the Interior Leo M. Krulitz to Assistant

Attorney General James W. Moorman 2 (Nov. 21, 1978)

(discussing the “legally enforceable trust obligation

owed by the United States Government to American

Indian tribes” originating in “the course of dealings

between the government and the Indians [as] reflected

in the treaties, agreements, and statutes pertaining to

Indians”).

Thus, despite the “end” of treatymaking, the trust

doctrine has grown in importance in the modern era.

Today, it continues to stand as “one of the cornerstones

of Indian law.” Cohen § 5.04[3][a].

II.

THE NAVAJO NATION’ S SUIT PROPERLY SEEKS

TO ENFORCE F EDERAL TREATY OBLIGATIONS

RECOGNIZED BY WINTERS.

The trust doctrine and its history compel three

conclusions directly relevant to this case. First, treaties

with Native nations should be interpreted based on the

intent of the sovereign parties to the treaties—and this

intent must include the trust doctrine. Second, Winters

is an example of this principle, and Winters’ logic

demonstrates that the United States agreed not just to

reserve tribal water rights, but to secure and enforce

those rights. Third, to ensure compliance with the trust

doctrine, Congress has provided for robust judicial

enforcement of treaties and treaty substitutes, including

through injunctive relief for failure to enforce Winters

rights.

A. The History of the Trust Doctrine Informs the

Interpretation of Tribal Treaties.

As its history demonstrates, the trust doctrine has

long motivated and guided the political branches’

interactions and intentions with respect to Native

nations. As a consequence, the trust doctrine is essential

to interpreting the intent of the sovereign parties to

tribal treaties and treaty substitutes.

Treaties—all treaties—are interpreted to give effect

to the intent and understanding of the sovereign parties.

As this Court has long held, a treaty is simply “a

contract, though between nations.” BG Group, PLC v.

Republic of Argentina, 572 U.S. 25, 37 (2014) (citing

precedents). “Its interpretation normally is, like a

contract’s interpretation, a matter of determining the

parties’ intent.” Id. Treaty text must be understood in

“the context in which the written words [were] used.”

Air France v. Saks, 470 U.S. 392, 397 (1985). Further,

courts must “give the specific words of the treaty a

meaning consistent with the shared expectations of the

contracting parties.” Id. at 399. Courts thus disregard

interpretations that “would run counter to the [treaty’s]

purpose” and are “most reluctant to adopt an

interpretation” that clashes with a treaty’s goals. Abbott

v. Abbott, 560 U.S. 1, 20–21 (2010); see, e.g., Societe

Nationale Industrielle Aerospatiale v. United States

Dist. Court for S. Dist. of Cal., 482 U.S. 522, 535 n.19

(1987) (construing the Hague Convention in light of its

“language, history, and purposes”); E. Airlines, Inc. v.

Floyd, 499 U.S. 530, 544–45, 551 (1991) (interpreting the

Warsaw Convention by considering the signatories’

intent).

Likewise, treaties and treaty substitutes with

Native nations must be interpreted in light of the trust

doctrine. As amici detailed above in Part I, the trust

doctrine has motivated the United States in formulating

federal Indian policy since even before the ratification of

the Constitution. The Framers codified the powers and

promise of protection for Native nations into the

document. Supra 13–14. At every point, the United

States has been mandated to act in good faith and in the

best interests of Native nations as their protector.

Supra 16–18. That, in other words, is the intent of the

United States underlying every tribal treaty and treaty

substitute.

To be sure, the federal government did not always

live up to its word and meet its trust obligations.

Despite the trust doctrine, the United States too often

negotiated treaties in bad faith with Native nations. See

Donna L. Akers, Decolonizing the Master Narrative:

Treaties and Other American Myths, 29 WICAZO

SA REV. 58, 67–73 (2014) (discussing the range of tactics

used by treaty commissioners who acted in bad faith).

That history, however, does not alter the central role

of the trust doctrine in the interpretation of tribal

treaties and treaty substitutes. Rather, this Court has

refused to assume bad faith on the part of treaty

negotiators and thereby sanction violations of the trust

doctrine. See Seminole Nation, 316 U.S. at 296–97.

Moreover, even when federal officials operated in bad

faith, Native nations believed federal officials to be

operating in good faith and formed treaty agreements

based on that belief—both because federal officials told

them so, supra 16, and because all treaties, tribal or not,

were understood to be negotiated in good faith, supra 17.

That understanding is essential to determining Native

nations’ intent toward the agreements to which they

consented.

General principles of treaty interpretation alone

should thus guide this Court to interpret treaties with

Native nations to take account of the intent of the

sovereign parties—intentions that are necessarily

inflected by the trust doctrine. Even beyond those

general principles, this Court, from the beginning, has

distilled similar principles into a rule known as the

Indian canon of treaty construction. As Justice M’Lean

famously explained in Worcester v. Georgia, 31 U.S. 515

(1832), courts must consider “[h]ow the words of the

treaty were understood by [the Native nation], rather

than their critical meaning,” and those words “should

never be construed to their prejudice.” Id. at 582

(concurring opinion); see also Philip P. Frickey,

Marshalling Past and Present: Colonialism,

Constitutionalism, and Interpretation in Federal

Indian Law, 107 HARV. L. REV. 381 (1993) (tracing the

history and origin of the Indian-law canons of

construction); Amy Coney Barrett, Substantive Canons

and Faithful Agency, 90 B.U. L. REV. 109, 152 n.206

(2010) (noting the “powerful argument[] … that the

canon can be understood as an outgrowth of the

sovereign-to-sovereign, structural relationship between

Indian nations and the United States” (quotation marks

omitted)). For these reasons, tribal treaties and treaty

substitutes must be interpreted broadly in favor of

Native nations, with a focus on how Native nations—

which had long fought for the trust doctrine and lobbied

to codify it into treaties and into the Constitution itself—

understood the treaty rights and obligations they

secured.

B. Winters Applied These Principles to Water

Rights, and the United States Is Obligated to

Enforce Such Rights.

Winters illustrates the application of these general

principles

treaty

(and

treaty-substitute)

interpretation. Those principles, in turn, support the

Navajo Nation’s reading of its treaty rights here.

In Winters, the Court assessed the water rights of

the Indians living on the Fort Belknap Indian

Reservation in the Milk River, a stream that formed the

northern boundary of the reservation. 207 U.S. at

575–77. No treaty or other agreement expressly

addressed rights to the Milk River. See id. But the

Native nations had negotiated an agreement securing to

them the reservation as an area “set apart ‘… as and for

a permanent home and abiding place.’” Id. at 565

(statement by Justice McKenna) (quoting reservation

agreement).

To construe the meaning of the agreement, the Court

looked to the parties’ intent, which the Court discerned

from the negotiating context. The reservation, the

Court noted, “was a part of a very much larger tract”

that had belonged to the Indians, and that had been well

suited to their prior way of life. Id. at 576. In that larger

tract, the Indians had possessed not just “the lands” but

“the waters[]—command of all their beneficial use,

whether kept for hunting and grazing roving herds of

stock or turned to agriculture.” Id. (quotation marks

omitted). The section of that land that would be set aside

for the Indians as their reservation, by contrast, was

“arid, and, without irrigation, … practically valueless.”

Id. All knew that the tract could serve as a permanent

homeland only if the Indians retained “the waters which

made it valuable or adequate.” Id. So it was plain the

Native nations had not intended to relinquish their right

to those waters. Just the opposite, they intended to

retain rights necessary to preserve their existence as

nations—that is, across generations to come. See id.

The

Court

considered

the

appellants’

counterarguments, but it rejected them based on the

trust doctrine. It refused the invitation to read bad faith

into the agreement by presuming the government’s

negotiators had intended to “deceive[]” the Indians. Id.

Even if that were true, the Court would not accept an

inference that would “impair or defeat” the agreement.

Id. at 577. Nor would the Court accept that the Indians

bore the burden of foreseeing and eliminating

ambiguity. “On account of their relations to the

government,” they could rest assured that the

agreement would be construed to achieve “the declared

purpose of themselves and the government”—a tract

that could serve as a permanent homeland. Id.

In Winters, the government voluntarily brought the

suit, so the Winters Court had no occasion to consider

whether the agreement required the government to do

so. See id. at 576. The principles that Winters applied,

however, compel that conclusion. At the time when most

tribal reservations were set aside, Native nations could

not bring suits, like Winters suits, that could have been

brought by the United States as their trustee. See Moe

v. Confederated Salish & Kootenai Tribes of Flathead

Rsrv., 425 U.S. 463, 472–73 (1976) (explaining that

Native nations lacked the capacity to sue, absent

Congress’s express authorization); Act of Oct. 10, 1966,

Pub. L. No. 89-635, § 1, 80 Stat. 880, 880 (codified at 28

U.S.C. § 1362) (providing such authorization in 1966); see

also infra 31. Thus, it was a legal necessity that the

United States bring suit to vindicate tribal water rights.

Given that context, agreements setting aside tribal

homelands were necessarily intended to obligate the

United States to secure and enforce Winters rights. Any

other reading defeats “the declared purpose of [Native

nations] and the government.” Winters, 207 U.S. at 577.

C. To Fulfill the Trust Doctrine, Congress Has

Provided for Robust Judicial Enforcement of

Treaties and Treaty Substitutes, Including

Through Injunctive Relief for Failure to

Enforce Winters Rights.

From the start, Congress has recognized that treaty

obligations mean little without enforcement. Thus, to

fulfill

its

trust

responsibility—including

its

constitutional responsibility and power to enforce

treaties—Congress has provided Native nations with

remedies when the United States breaches its treaties.

At first, Congress itself bore sole responsibility for

providing Native nations a remedy when the Executive

did not fulfill the United States’ obligations. As detailed

in Part I, the Framers and early Congresses received

ambassadors from Native nations, allowed Native

nations to send deputies to the Constitutional

Convention, and promised in the Treaty of Hopewell the

right to send a deputy to Congress. Supra 9–13.

Over time, Congress increasingly tasked the federal

courts with treaty enforcement as well.

The

Constitution had contemplated this role by extending

“[t]he judicial Power … to all Cases … arising under …

Treaties made, or which shall be made.” U.S. CONST. art.

III, § 2. Congress, however, was slow to authorize

jurisdiction for suits by Native nations. First, it

authorized Native nations to bring monetary claims.

Even there, Congress was initially hesitant to involve

the courts. It statutorily barred claims by Native

nations for damages against the United States in the

Court of Claims, permitting them only after a Native

nation successfully petitioned Congress for a special

jurisdictional bill. See Mitchell II, 463 U.S. at 214. By

the middle of the twentieth century, though, Congress

recognized that the need for special jurisdictional

statutes was preventing the United States from

fulfilling its trust obligations to tribes. See id. at 214–15.

In 1946, Congress enacted the Indian Tucker Act,

granting the Court of Claims general jurisdiction to hear

tribal monetary claims. 28 U.S.C. § 1505. In doing so,

Congress sought to ensure that the United States would

meet “the obligations that the Federal government

assumed” and stop “denying access to the courts when

… fiduciary duties have been violated.” Mitchell II, 463

U.S. at 214–15 (first quoting 92 CONG. REC. 5312 (1946)

(statement of Rep. Jackson); and then quoting H.R. REP.

NO. 79-1466, at 5 (1945)).

The Indian Tucker Act, however, did not allow

adjudication of all treaty violations. If tribal claims

against parties who were not the United States

amounted to less than $10,000, federal courts lacked

jurisdiction.

28 U.S.C. § 1331(a) (1964 ed.); see

Blatchford v. Native Vill. of Noatak & Circle Vill., 501

U.S. 775, 783–84 (1991). For example, when a Montana

agency allowed oil drilling adjacent to Assiniboine and

Sioux land, the tribes were barred from seeking a

remedy in federal court, as they could not show $10,000

worth of damage. Yoder v. Assiniboine & Sioux Tribes

of Fort Peck Indian Reservation, 339 F.2d 360, 361–64

(9th Cir. 1964). In this case, and in similar cases, the

United States could have sued on the tribes’ behalf. See

28 U.S.C. § 1345; H.R. REP. NO. 89-2040, at 2 (1966).

When the United States failed to bring such claims,

though, the tribes lacked any enforcement mechanism

(other than petitioning Congress to enact a new statute).

As a remedy, in 1966 Congress granted federal

courts general jurisdiction over “all civil actions,

brought by any Indian tribe ..., wherein the matter in

controversy arises under the Constitution, laws, or

treaties of the United States.” 28 U.S.C. § 1362. As this

Court has explained, Congress passed § 1362 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; see also H.R. REP. NO. 89-2040, at 2–3 (“[Section

1362] provides the means whereby the tribes are

assured of the same judicial determination whether the

action is brought in their behalf by the Government or

by their own attorneys.”).

Even with this grant of jurisdiction, however, a key

obstacle to enforcement of the United States’ obligations

remained. Namely, sovereign immunity prevented

Native nations from bringing nonmonetary suits for

breach of treaty and trust obligations against the United

States. E.g., Nat’l Indian Youth Council v. Bruce, 485

F.2d 97, 99 (10th Cir. 1973); Skokomish Indian Tribe v.

France, 269 F.2d 555, 559–60 (9th Cir. 1959); see also

Mary Christina Wood, Indian Land and the Promise of

Native Sovereignty: The Trust Doctrine Revisited, 1994

UTAH L. REV. 1471, 1515 n.206 (“Until Congress

removed the defense of sovereign immunity as a bar to

judicial review in 1976, it was unclear whether tribes

could bring actions against federal agencies for

injunctive or declaratory relief.”). This was critical

because, when the United States failed to fulfill its

duties, damages were often an insufficient remedy.

Again, Congress acted to ensure that the United

States’ obligations would be fulfilled. In 1976, it

amended the Administrative Procedure Act to permit

suits against the United States “seeking relief other

than money damages and stating a claim that an agency

or an officer or employee thereof acted or failed to act in

an official capacity or under color of legal authority.” Act

of Oct. 21, 1976, Pub. L. No. 94-574, § 702, 90 Stat. 2721,

2721.

The legislative history shows that part of the

motivation for this amendment was fulfilling the United

States’ responsibilities to Indian tribes. The Senate and

House Judiciary Committee Reports both cited cases

arising from tribal claims as evidence that the legislation

was necessary and proper. See S. REP. NO. 94-996, at 10

n.33 (1976); H.R. REP. NO. 94-1656, at 10 n.33 (1976).

Moreover, both reports identified the Department of the

Interior, in particular, as an agency that would be

subject to suits after the amendment. See S. REP. NO.

94-996 at 4; H.R. REP. NO. 94-1656 at 5. In the years

immediately following the amendment, tribes brought

numerous suits pursuant to the waiver to enforce the

trust obligations of the United States. E.g., Eric v. Sec'y

of U.S. Dep’t of Hous. & Urb. Dev., 464 F. Supp. 44 (D.

Alaska 1978); Table Bluff Band of Indians v. Andrus,

532 F. Supp. 255 (N.D. Cal. 1981); Vigil v. Andrus, 667

F.2d 931 (10th Cir. 1982); Assiniboine & Sioux Tribes of

Fort Peck Indian Rsrv. v. Bd. of Oil & Gas Conservation

of State of Montana, 792 F.2d 782, 792–93 (9th Cir. 1986).

Indeed, that waiver allowed the Navajo Nation’s suit

here. Arizona Pet. App. 16.

As the foregoing shows, the Executive Branch’s

invocation of separation of powers in this case, e.g., U.S.

Br. 30, lacks any historical basis. Though Congress once

reserved to itself the task of ensuring that the Executive

Branch fulfilled the United States’ treaty obligations,

today Congress has primarily tasked the courts with

that responsibility. Where, as here, the United States

and Native nations entered treaty obligations and

intended for the United States to secure them, a suit to

compel the United States to fulfill that duty is properly

brought.

CONCLUSION

The Ninth Circuit’s judgment should be affirmed.

Respectfully submitted,

AMANDA L. WHITE EAGLE

NYU-YALE AMERICAN

INDIAN SOVEREIGNTY

PROJECT

40 Washington Square S

New York, NY 10012

SAM HIRSCH

LEONARD R. POWELL

Counsel of Record

TROY EMILIANO AGUIRRE*

ABRAHAM KANTER*

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

leonardpowell@jenner.com

* Not admitted in D.C.;

supervised by principals of the

Firm

APPENDICES

TABLE OF CONTENTS

APPENDIX A

LIST OF AMICI CURIAE ................................ 1a

APPENDIX B

CONGRESSIONAL

STATUTES

REAFFIRMING

THE

TRUST

RELATIONSHIP ................................................ 2a

APPENDIX C

STATEMENTS OF EXECUTIVE

POLICY

REAFFIRMING

THE

TRUST RELATIONSHIP ................................. 8a

APPENDIX A:

LIST OF AMICI CURIAE

Maggie Blackhawk

Professor of Law

New York University School of Law

Ned Blackhawk

Howard R. Lamar Professor of History

and American Studies

Yale University

Elizabeth Ellis

Assistant Professor of History

Princeton University

Karl Jacoby

Allan Nevins Professor of American History

Columbia University

Joshua L. Reid

Associate Professor of American Indian Studies

John Calhoun Smith Memorial Endowed Associate

Professor of History

Director, Center for the Study of the Pacific Northwest

University of Washington

APPENDIX B:

CONGRESSIONAL STATUTES

REAFFIRMING THE TRUST RELATIONSHIP

Act of June 18, 1934, ch. 576, 48 Stat. 984

Act of Aug. 13, 1946, ch. 959, 60 Stat. 1049

Act of Aug. 15, 1953, ch. 505, 67 Stat. 588

Act of Aug. 9, 1955, ch. 615, 69 Stat. 539

Act of Dec. 15, 1970, Pub. L. No. 91-550, 84 Stat. 1437

Act of Aug. 2, 1983, Pub. L. No. 98-64, 97 Stat. 365

Alaska Native Claims Settlement Act, Pub. L. No. 92203, 85 Stat. 688 (1971)

American Indian Agricultural Resource Management

Act, Pub. L. No. 103-177, 107 Stat. 2011 (1993)

American Indian Probate Reform Act of 2004, Pub. L.

No. 108-374, 118 Stat. 1773

American Indian Trust Fund Management Reform Act

of 1994, Pub. L. No. 103-412, 108 Stat. 4239

America’s Water Infrastructure Act of 2018, Pub. L.

No. 115-270, 132 Stat. 3765

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102

Stat. 4181

Chippewa Cree Tribe of the Rocky Boy’s Reservation

Indian Reserved Water Rights Settlement and Water

Supply Enhancement Act of 1999, Pub. L. No. 106-163,

113 Stat. 1778

Consolidated Appropriations Act, 2018, Pub. L. No.

115-141, 132 Stat. 348

Consolidated Appropriations Act, 2021, Pub. L. No.

116-260, 134 Stat. 1182 (2020)

Every Student Succeeds Act, Pub. L. No. 114-95, 129

Stat. 1802 (2015)

Federal Oil and Gas Royalty Management Act of 1982,

Pub. L. No. 97-451, 96 Stat. 2447 (1983)

Food, Conservation, and Energy Act of 2008, Pub. L.

No. 110-246, 122 Stat. 1651

Fort Hall Indian Water Rights Act of 1990, Pub. L. No.

101-602, 104 Stat. 3059

Higher Education Amendments of 1992, Pub. L. No.

102-325, 106 Stat. 448

Improving Head Start for School Readiness Act of

2007, Pub. L. No. 110-134, 121 Stat. 1363

Indian Arts and Crafts Amendments Act of 2010, Pub.

L. No. 111-211, 124 Stat. 2258

Indian Child Welfare Act of 1978, Pub. L. No. 95-608, 92

Stat. 3069

Indian Financing Act of 1974, Pub. L. No. 93-262, 88

Stat. 77

Indian Gaming Regulatory Act, Pub. L. No. 100-497,

102 Stat. 2467 (1988)

Indian Health Care Improvement Act, Pub. L. No. 94437, 90 Stat. 1400 (1976)

Indian Land Consolidation Act, Pub. L. No. 97-459, 96

Stat. 2515 (1983)

Indian Mineral Development Act of 1982, Pub. L. No.

97-382, 96 Stat. 1938

Indian Self-Determination and Education Assistance

Act, Pub. L. No. 93-638, 88 Stat. 2203 (1975)

Indian Tribal Economic Development and Contract

Encouragement Act of 2000, Pub. L. No. 106-179, 114

Stat. 46

Indian Tribal Energy Development and SelfDetermination Act of 2005, Pub. L. No. 109-58, tit. V,

119 Stat. 763

Indian Tribal Justice Technical and Legal Assistance

Act of 2000, Pub. L. No. 106-559, 114 Stat. 2778

Indian Trust Asset Reform Act, Pub. L. No. 114-178,

130 Stat. 432 (2016)

Infrastructure Investment and Jobs Act, Pub. L. No.

117-58, 135 Stat. 429 (2021)

Mashantucket Pequot Indian Claims Land Settlement

Act, Pub. L. No. 98-134, 97 Stat. 851 (1983)

National Indian Forest Resources Management Act,

Pub. L. No. 101-630, 104 Stat. 4531 (1990)

Native American Business Development, Trade

Promotion, and Tourism Act of 2000, Pub. L. No. 106464, 114 Stat. 2012

Native American Education Improvement Act of 2001,

Pub. L. No. 107-110, tit. X, pt. D, 115 Stat. 2007

Native American Housing Enhancement Act of 2005,

Pub. L. No. 109-136 119 Stat. 2643

Native Hawaiian Health Care Act of 1988, Pub. L. No.

100-579, 102 Stat. 2916

Omnibus Indian Advancement Act, Pub. L. No. 106568, 114 Stat. 2868 (2000)

Patient Protection and Affordable Care Act, Pub. L.

No. 111-148, 124 Stat. 119 (2010)

Practical Reforms and Other Goals to Reinforce the

Effectiveness of Self-Governance and SelfDetermination for Indian Tribes Act of 2019, Pub. L.

No. 116-180, 134 Stat. 857 (2020)

Reclamation Projects Authorization and Adjustment

Act of 1992, Pub. L. No. 102-575, 106 Stat. 4600

Reindeer Industry Act, ch. 897, 50 Stat. 900 (1937)

Salt River Pima-Maricopa Indian Community Water

Rights Settlement Act of 1988, Pub. L. No. 100-512, 102

Stat. 2549

Shivwits Band of the Paiute Indian Tribe of Utah

Water Rights Settlement Act, Pub. L. No. 106-263, 114

Stat. 737 (2000)

S.J. Res. 133, Pub. L. No. 93-580, 88 Stat. 1910 (1975)

Tribal Self-Governance Amendments of 2000, Pub. L.

No. 106-260, 114 Stat. 711

Tribally Controlled Schools Act of 1988, Pub. L. No.

100-297, tit. V, pt. B, 102 Stat. 385

Violence Against Women and Department of Justice

Reauthorization Act of 2005, Pub. L. No. 109-162, 119

Stat. 2960

Yavapai-Prescott Indian Tribe Water Rights

Settlement Act of 1994, Pub. L. No. 103-434, 108 Stat.

4526

Zuni Indian Tribe Water Rights Settlement Act of

2003, Pub. L. No. 108-34, 117 Stat. 782

APPENDIX C:

STATEMENTS OF EXECUTIVE POLICY

REAFFIRMING THE TRUST RELATIONSHIP

Bureau of Reclamation, Indian Trust Asset Policy and

NEPA Implementing Procedures (Aug. 31, 1994)

Exec. Order No. 13007, 61 Fed. Reg. 26,771 (May 24,

1996)

Exec. Order No. 13084, 63 Fed. Reg. 27,655 (May 14,

1998)

Exec. Order No. 13175, 65 Fed. Reg. 67,249 (Nov. 6,

2000)

Exec. Order No. 13592, 76 Fed. Reg. 76,603 (Dec. 2,

2011)

Exec. Order No. 13616, 77 Fed. Reg. 36,903 (June 14,

2012)

Exec. Order No. 13647, 78 Fed. Reg. 39,539 (June 26,

2013)

Memorandum from Dep’t of the Interior Solicitor Leo

M. Krulitz to Assistant Attorney General James W.

Moorman (Nov. 21, 1978)

Memorandum of Tribal Consultation and Strengthening

Nation-to-Nation Relationships (Jan. 26, 2021)

Presidential Documents 74478, 87 Fed. Reg. 232 (Dec.

5, 2022)

Proclamation No. 8749, 76 Fed. Reg. 68,623 (Nov. 1,

2011)

Proclamation No. 8901, 77 Fed. Reg. 66,527 (Nov. 1,

2012)

Proclamation No. 9054, 78 Fed. Reg. 66,619 (Oct. 31,

2013)

Proclamation No. 9207, 79 Fed. Reg. 65,871 (Oct. 31,

2014)

Proclamation No. 9537, 81 Fed. Reg. 76,841 (Oct. 31,

2016)

Proclamation No. 10202, 86 Fed. Reg. 24,479 (May 4,

2021)

Proclamation No. 10283, 86 Fed. Reg. 57,307 (Oct. 8,

2021)

Proclamation No. 10302, 86 Fed. Reg. 60,545 (Oct. 29,

2021)

Proclamation No. 10473, 87 Fed. Reg. 61,957 (Oct. 7,

2022)

10a

Proclamation No. 10490, 87 Fed. Reg. 66,531 (Oct. 31,

2022)

Remarks at a Reception of American Indian Leaders, 3

PUB. PAPERS 2020 (July 16, 1976)

Remarks to Native American and Native Alaskan

Tribal Leaders, 1 PUB. PAPERS 800 (Apr. 29, 1994)

Secretary of the Interior’s Order No. 3175,

Departmental Responsibilities for Indian Trust

Resources (Nov. 8, 1993)

Special Message on Indian Affairs, 1 PUB. PAPERS 564

(July 8, 1970)

Special Message to the Congress on the Problems of

the American Indian: ‘The Forgotten American.’ 1 PUB.

PAPERS 335 (Mar. 6, 1968)

Statement on Indian Policy, 1 PUB. PAPERS 96 (Jan. 24,

1983)

Statement Reaffirming the Government-toGovernment Relationship Between the Federal

Government and Indian Tribal Governments, 1 PUB.

PAPERS 662 (June 14, 1991)

U.S. Dep’t of Interior, Special Task Force on Indian

Affairs Report (1961)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.