I am trying to understand the context behind the recent SCOTUS decision against the Navajo Nation.

It seems like the US, as a trustee, has an equitable duty to perform a Water Rights Accounting, and to seek a court's approval of such an accounting, to which the Navajo Nation could file exceptions.

Does anyone know a Water Rights Accounting has happened in for the Navajo Reservation?

Is the supreme court saying that the duty to account is not an affirmative duty?


After researching the 1868 Navajo treaty, it seems the agreement was made under threat of extreme military force by the US, and agreed to by natives who mostly lacked the capacity to sign their names. Ouch!

According to Wikipedia, the Indian Appropriations Act of 1871 contained an amendment ending tribal recognition and the treaty system. All Indians were made wards of the state; thus the U.S. government no longer needed tribal consent in dealing with the tribes.

In other words, to hell with the rule of law, the U.S. Congress we can do whatever they want. in "Indian Country".


1 Answer 1


The US role as trustee is limited by the treaty

The Federal Government owes judicially enforceable duties to a tribe “only to the extent it expressly accepts those responsibilities.”

To be sure, this Court’s precedents have stated that the United States maintains a general trust relationship with Indian tribes, including the Navajos. But unless Congress has created a conventional trust relationship with a tribe as to a particular trust asset, this Court will not “apply common-law trust principles” to infer duties not found in the text of a treaty, statute, or regulation.

The 1868 treaty is silent on water rights so the US Government has no duty to do anything.

  • I believe the court is using “common law” in its wider sense of “not statute law”.
    – Dale M
    Commented Jun 23, 2023 at 0:10
  • So, is the court is saying it will uphold statutes rather than judicial decisions that predate the treaty?
    – Max Battle
    Commented Jun 23, 2023 at 0:55
  • All courts do that - the legislature can overwrite common law. But what the court is saying is the treaty does not create a trust except over the things it expressly includes.
    – Dale M
    Commented Jun 23, 2023 at 1:31
  • Well, I don't know the history of the relevant statute, but the certainty principal seems to require that the agreement be understandable to those who agreed to it.
    – Max Battle
    Commented Jun 23, 2023 at 1:43
  • Why do you think it isn’t? Reasonable minds can differ - we have courts to resolve those differences.
    – Dale M
    Commented Jun 23, 2023 at 6:39

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