PRELIMINARY PRINT

Volume 599 U. S. Part 1 Pages 555–599

OFFICIAL REPORTS OF

THE SUPREME COURT June 22, 2023

Page Proof Pending Publication

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, [email protected], of any typographical or other formal errors. OCTOBER TERM, 2022 555

Syllabus

ARIZONA et al. v. NAVAJO NATION et al. certiorari to the united states court of appeals for the ninth circuit No. 21–1484. Argued March 20, 2023—Decided June 22, 2023* An 1868 peace treaty between the United States and the Navajo Tribe established the Navajo Reservation that today spans some 17 million acres, almost entirely in the Colorado River Basin of the western United States. The Federal Government's reservation of land for an Indian tribe implicitly reserves the right to use needed water from various sources—such as groundwater, rivers, streams, lakes, and springs—that arise on, border, cross, underlie, or are encompassed within the reserva- tion. See Winters v. United States, 207 U. S. 564, 576–577. While the Tribe has the right to use needed water from the reservation's numerous water sources, the Navajos face the same water scarcity problem that many in the western United States face. In the Navajos' view, the Federal Government's efforts to assist the Navajos with their water needs did not fully satisfy the trust obligations of the United States

Page Proof Pending Publication under the 1868 treaty. The Navajos fled suit seeking to compel the United States to take affrmative steps to secure needed water for the Tribe—including by assessing the Tribe's water needs, developing a plan to secure the needed water, and potentially building pipelines, pumps, wells, or other water infrastructure. The States of Arizona, Nevada, and Colorado intervened against the Tribe to protect those States' interests in water from the Colorado River. The U. S. District Court for the District of Arizona dismissed the Navajo Tribe's com- plaint, but the Ninth Circuit reversed, holding in relevant part that the United States has a duty under the 1868 treaty to take affrmative steps to secure water for the Navajos. Held: The 1868 treaty establishing the Navajo Reservation reserved nec- essary water to accomplish the purpose of the Navajo Reservation but did not require the United States to take affrmative steps to secure water for the Tribe. Pp. 563–570. (a) The Tribe asserts a breach-of-trust claim based on its view that the 1868 treaty imposed a duty on the United States to take affrmative steps to secure water for the Navajos. To maintain such a claim here, the Tribe must establish, among other things, that the text of a treaty,

*Together with No. 22–51, Department of the Interior et al. v. Navajo Nation et al., also on certiorari to the same court. 556 ARIZONA v. NAVAJO NATION

Syllabus

statute, or regulation imposed certain duties on the United States. See United States v. Jicarilla Apache Nation, 564 U. S. 162, 173–174, 177– 178. The Federal Government owes judicially enforceable duties to a tribe “only to the extent it expressly accepts those responsibilities.” Id., at 177. Whether the Government has expressly accepted such obli- gations “must train on specifc rights-creating or duty-imposing” lan- guage in a treaty, statute, or regulation. United States v. Navajo Nation, 537 U. S. 488, 506. Here, while the 1868 treaty “set apart” a reservation for the “use and occupation of the Navajo tribe,” 15 Stat. 668, it contains no language imposing a duty on the United States to take affrmative steps to secure water for the Tribe. See Navajo Nation, 537 U. S., at 506. Notably, the 1868 treaty did impose a number of specifc duties on the United States, but the treaty said nothing about any affrmative duty for the United States to secure water. As this Court has stated, “Indian treat- ies cannot be rewritten or expanded beyond their clear terms.” Choc- taw Nation v. United States, 318 U. S. 423, 432. To be sure, this Court's precedents have stated that the United States maintains a general trust relationship with Indian tribes, including the Navajos. Jicarilla, 564 U. S., at 176. But unless Congress has created a conventional trust relationship with a tribe as to a particular trust Page Proof Pending Publication asset, this Court will not “apply common-law trust principles” to infer duties not found in the text of a treaty, statute, or regulation. Id., at 178. Here, nothing in the 1868 treaty establishes a conventional trust relationship with respect to water. And it is unsurprising that a treaty enacted in 1868 did not provide for all of the Navajos' current water needs 155 years later. Under the Constitution, Congress and the Presi- dent have the responsibility to update federal law as they see ft in light of the competing contemporary needs for water. (b) Other arguments offered by the Navajo Tribe to support its claims under the 1868 treaty are unpersuasive. First, that the 1868 treaty established the Navajo Reservation as a “permanent home” does not mean that the United States agreed to take affrmative steps to secure water for the Tribe. Second, the treaty's express requirement that the United States supply seeds and agricultural implements for a 3-year period to the Tribe does not, as the Tribe contends, mean that the United States has an additional duty to take affrmative steps to secure water, but rather demonstrates that the United States and the Navajos knew how to impose specifc affrmative duties on the United States under the treaty. Third, the Tribe asserts that the United States's purported control over the reserved water rights supports the view that the United States owes trust duties to the Navajos. But the “Federal Government's liability” on a breach-of-trust claim “cannot be Cite as: 599 U. S. 555 (2023) 557

Syllabus

premised on control alone.” United States v. Navajo Nation, 556 U. S. 287, 301. Finally, the text of the treaty and records of treaty negotia- tions do not support the claim that in 1868 the Navajos would have understood the treaty to mean that the United States must take affrm- ative steps to secure water for the Tribe. 26 F. 4th 794, reversed.

Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, and Barrett, JJ., joined. Thomas, J., fled a concurring opinion, post, p. 570. Gorsuch, J., fled a dissenting opinion, in which Sotomayor, Kagan, and Jackson, JJ., joined, post, p. 574.

Frederick Liu argued the cause for the federal petitioners in both cases. With him on the briefs were Solicitor Gen- eral Prelogar, Assistant Attorney General Kim, Deputy So- licitor General Kneedler, William B. Lazarus, and John L. Smeltzer. Rita P. Maguire argued the cause for the state petitioners in both cases. With her on the briefs were Ni- cole D. Klobas, Jennifer Heim, Stuart L. Somach, Robert B. Hoffman, John B. Weldon, Jr., Lisa M. McKnight, Aaron Page Proof Pending Publication Ford, Attorney General of Nevada, Lauren J. Caster, Brad- ley J. Pew, Gregory J. Walch, Marcia L. Scully, Catherine M. Stites, Steven B. Abbott, and Charles T. DuMars. Philip J. Weiser, Attorney General of Colorado, Eric R. Olson, So- licitor General, Scott Steinbrecher, Assistant Deputy Attor- ney General, A. Lain Leoniak, First Assistant Attorney General, and Russell D. Johnson, Assistant Solicitor General fled briefs for the State of Colorado in No. 21–1484. Shay Dvoretzky argued the cause for respondents in both cases. With him on the brief were Parker Rider-Longmaid, Sylvia O. Tsakos, Jeremy Patashnik, M. Kathryn Hoover, G. Michelle Brown-Yazzie, Paul Spruhan, and Alice Eliza- beth Walker.† †Briefs of amici curiae urging reversal in both cases were fled for the Citizens Equal Rights Foundation by Lawrence A. Kogan; and for Western Water Users and Trade Associations by Jeremy C. Marwell and Matthew X. Etchemendy. Briefs of amici curiae urging affrmance in both cases were fled for the Coalition of Large Tribes by Troy A. Eid and Jennifer H. Weddle; for the 558 ARIZONA v. NAVAJO NATION

Opinion of the Court

Justice Kavanaugh delivered the opinion of the Court. In 1848, the United States won the Mexican-American War and acquired vast new territory from Mexico in what would become the American West. The Navajos lived within a discrete portion of that expansive and newly American terri- tory. For the next two decades, however, the United States and the Navajos periodically waged war against one another. In 1868, the United States and the Navajos agreed to a peace treaty. In exchange for the Navajos' promise not to engage in further war, the United States established a large reserva- tion for the Navajos in their original homeland in the west- ern United States. Under the 1868 treaty, the Navajo Res- ervation includes (among other things) the land, the minerals below the land's surface, and the timber on the land, as well as the right to use needed water on the reservation. The question in this suit concerns “reserved water rights”—a shorthand for the water rights implicitly reserved Page Proof Pending Publication to accomplish the purpose of the reservation. Cappaert v. United States, 426 U. S. 128, 138 (1976); see also Winters v. United States, 207 U. S. 564, 576–577 (1908). The Navajos' claim is not that the United States has interfered with their water access. Instead, the Navajos contend that the treaty requires the United States to take affrmative steps to se- cure water for the Navajos—for example, by assessing the Tribe's water needs, developing a plan to secure the needed water, and potentially building pipelines, pumps, wells, or other water infrastructure—either to facilitate better access DigDeep Right to Water Project et al. by Elizabeth G. Bentley; for the Diné Hataałii Association, Inc., by Patricia Ferguson-Bohnee; for Histori- ans by Sam Hirsch, Leonard R. Powell, and Amanda L. WhiteEagle; for the Southern Ute Indian Tribe et al. by Thomas H. Shipps, Adam T. Reeves, David C. Smith, and Lorelyn Hall; for Tribal Nations et al. by John E. Echohawk, Steven C. Moore, Morgan E. Saunders, Wesley James Furlong, Heather D. Whiteman Runs Him, Monte Mills, and Dylan R. Hedden-Nicely; for the Ute Indian Tribe of the Uintah and Ouray Reser- vation by Frances C. Bassett; for Lawrence J. MacDonnell et al. by Burke W. Griggs, pro se; and for Daniel McCool et al. by Richard W. Hughes. Cite as: 599 U. S. 555 (2023) 559

Opinion of the Court

to water on the reservation or to transport off-reservation water onto the reservation. In light of the treaty's text and history, we conclude that the treaty does not require the United States to take those affrmative steps. And it is not the Judiciary's role to rewrite and update this 155-year-old treaty. Rather, Congress and the President may enact— and often have enacted—laws to assist the citizens of the western United States, including the Navajos, with their water needs. I The Navajo Tribe is one of the largest in the United States, with more than 300,000 enrolled members, roughly 170,000 of whom live on the Navajo Reservation. The Nav- ajo Reservation is the geographically largest in the United States, spanning more than 17 million acres across the States of Arizona, New Mexico, and Utah. To put it in perspective, the Navajo Reservation is about the size of West Virginia. Page Proof Pending Publication Two treaties between the United States and the Navajo Tribe led to the establishment of the Navajo Reservation. After the Mexican-American War ended in 1848, the United States acquired control over massive new territory through- out what is now the western United States—spanning west from Texas through New Mexico and Arizona to California, and north into Oklahoma, Kansas, Colorado, Wyoming, Utah, and Nevada. The Navajos lived in a portion of that for- merly Mexican territory. In 1849, the United States entered into a treaty with the Navajos. See Treaty Between the United States of Amer- ica and the Navajo Tribe of Indians, Sept. 9, 1849, 9 Stat. 974 (ratifed Sept. 24, 1850). In that 1849 treaty, the Navajo Tribe recognized that the Navajos were now within the ju- risdiction of the United States, and the Navajos agreed to cease hostilities and to maintain “perpetual peace” with the United States. Ibid. In return, the United States agreed to “designate, settle, and adjust” the “boundaries” of the Navajo territory. Id., at 975. 560 ARIZONA v. NAVAJO NATION

Opinion of the Court

Over the next two decades, however, the United States and the Navajos often were at war with one another. Dur- ing that period, the United States forcibly moved many Nav- ajos from their original homeland to a relatively barren area in New Mexico known as the Bosque Redondo Reservation. In 1868, the two sides agreed to a second treaty to put an end to “all war between the parties.” The United States “set apart” a large reservation “for the use and occupation of the Navajo tribe” within the new American territory in the western United States. Treaty Between the United States of America and the Navajo Tribe of Indians, June 1, 1868, 15 Stat. 667–668 (ratifed Aug. 12, 1868). Importantly, the reservation would be on the Navajos' original homeland, not the Bosque Redondo Reservation. The new reservation would enable the Navajos to once again become self- suffcient, a substantial improvement from the situation at Bosque Redondo. The United States also agreed (among Page Proof Pending Publication other things) to build schools, a chapel, and other buildings; to provide teachers for at least 10 years; to supply seeds and agricultural implements for up to three years; and to provide funding for the purchase of sheep, goats, cattle, and corn. In “consideration of the advantages and benefts con- ferred” on the Navajos by the United States in the 1868 treaty, the Navajos pledged not to engage in further war against the United States or other Indian tribes. Id., at 669–670. The Navajos also agreed to “relinquish all right to occupy any territory outside their reservation”—with the exception of certain rights to hunt. Id., at 670. The Nava- jos promised to “make the reservation” their “permanent home.” Id., at 671. In short, the treaty enabled the Nava- jos to live on their original land. See Treaty Between the United States of America and the Navajo Tribe of Indians With a Record of the Discussions That Led to Its Signing 2, 4, 10–11, 15 (1968). Under the 1868 treaty, the Navajo Reservation includes not only the land within the boundaries of the reservation, Cite as: 599 U. S. 555 (2023) 561

Opinion of the Court

but also water rights. Under this Court's longstanding re- served water rights doctrine, sometimes referred to as the Winters doctrine, the Federal Government's reservation of land for an Indian tribe also implicitly reserves the right to use needed water from various sources—such as ground- water, rivers, streams, lakes, and springs—that arise on, bor- der, cross, underlie, or are encompassed within the reserva- tion. See Winters v. United States, 207 U. S. 564, 576–577 (1908); see also Cappaert v. United States, 426 U. S. 128, 138– 139, 143 (1976); Arizona v. California, 373 U. S. 546, 598– 600 (1963); F. Cohen, Handbook of Federal Indian Law § 19.03(2)(a), pp. 1212–1213 (N. Newton ed. 2012). Under the Winters doctrine, the Federal Government reserves water only “to the extent needed to accomplish the purpose of the reservation.” Sturgeon v. Frost, 587 U. S. –––, ––– (2019) (internal quotation marks omitted); United States v. New Mexico, 438 U. S. 696, 700–702 (1978). Page Proof Pending Publication The Navajo Reservation lies almost entirely within the Colorado River Basin, and three vital rivers—the Colorado, the Little Colorado, and the San Juan—border the reserva- tion. To meet their water needs for household, agricultural, industrial, and commercial purposes, the Navajos obtain water from rivers, tributaries, springs, lakes, and aquifers on the reservation. Much of the western United States is arid. Water has long been scarce, and the problem is getting worse. From 2000 through 2022, the region faced the driest 23-year period in more than a century and one of the driest periods in the last 1,200 years. And the situation is expected to grow more severe in future years. So even though the Navajo Reservation encompasses numerous water sources and the Tribe has the right to use needed water from those sources, the Navajos face the same water scarcity problem that many in the western United States face. Over the decades, the Federal Government has taken vari- ous steps to assist the people in the western States with 562 ARIZONA v. NAVAJO NATION

Opinion of the Court

their water needs. The Solicitor General explains that, for the Navajo Tribe in particular, the Federal Government has secured hundreds of thousands of acre-feet of water and au- thorized billions of dollars for water infrastructure on the Navajo Reservation. See Tr. of Oral Arg. 5; see also, e. g., Consolidated Appropriations Act, 2021, Pub. L. 116–260, 134 Stat. 3227, 3230; Northwestern New Mexico Rural Water Projects Act, §§ 10402, 10609, 10701, 123 Stat. 1372, 1395– 1397; Central Arizona Project Settlement Act of 2004, § 104, 118 Stat. 3487; Colorado Ute Settlement Act Amendments of 2000, 114 Stat. 2763A–261, 2763A–263; Act of June 13, 1962, 76 Stat. 96; Act of Apr. 19, 1950, 64 Stat. 44–45. In the Navajos' view, however, those efforts did not fully satisfy the United States's obligations under the 1868 treaty. The Navajos therefore sued the U. S. Department of the Interior, the Bureau of Indian Affairs, and other federal par- ties. As relevant here, the Navajos asserted a breach-of- Page Proof Pending Publication trust claim arising out of the 1868 treaty and sought to “com- pel the Federal Defendants to determine the water required to meet the needs” of the Navajos in Arizona and to “devise a plan to meet those needs.” App. 86. The States of Ari- zona, Nevada, and Colorado intervened against the Tribe to protect those States' interests in water from the Colorado River. 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 af- frmative steps to secure water for the Tribe— including by assessing the Tribe's water needs, developing a plan to se- cure the needed water, and potentially building pipelines, pumps, wells, or other water infrastructure. See Tr. of Oral Arg. 102 (counsel for Navajo Nation: “I can't say that” the United States's obligation “to ensure access” to water “would never require any infrastructure whatsoever”). The U. S. District Court for the District of Arizona dis- missed the Navajo Tribe's complaint. In relevant part, the Cite as: 599 U. S. 555 (2023) 563

Opinion of the Court

District Court determined that the 1868 treaty did not im- pose a duty on the United States to take affrmative steps to secure water for the Tribe. The U. S. Court of Appeals for the Ninth Circuit reversed, holding in relevant part that the United States has a duty under the 1868 treaty to take affrmative steps to secure water for the Navajos. Navajo Nation v. United States Dept. of Interior, 26 F. 4th 794, 809–814 (2022). This Court granted certiorari. 598 U. S. ––– (2022).

II When the United States establishes a tribal reservation, the reservation generally includes (among other things) the land, the minerals below the land's surface, the timber on the land, and the right to use needed water on the reservation, referred to as reserved water rights. See United States v. Shoshone Tribe, 304 U. S. 111, 116–118 (1938); Winters v. Page Proof Pending Publication United States, 207 U. S. 564, 576–577 (1908); see also Cap- paert v. United States, 426 U. S. 128, 138–139 (1976). Each of those rights is a stick in the bundle of property rights that makes up a reservation. This suit involves water. To help meet their water needs, the Navajos obtain water from, among other sources, rivers, tributaries, springs, lakes, and aquifers on the reservation. As relevant here, the Navajos do not contend that the United States has interfered with their access to water. Rather, the Navajos argue that the United States must take affrm- ative steps to secure water for the Tribe—for example, by assessing the Tribe's water needs, developing a plan to se- cure the needed water, and potentially building pipelines, pumps, wells, or other water infrastructure. The Tribe asserts a breach-of-trust claim. To maintain such a claim here, the Tribe must establish, among other things, that the text of a treaty, statute, or regulation im- posed certain duties on the United States. See United States v. Jicarilla Apache Nation, 564 U. S. 162, 173–174, 564 ARIZONA v. NAVAJO NATION

Opinion of the Court

177–178 (2011); United States v. Navajo Nation, 537 U. S. 488, 506–507 (2003); United States v. Mitchell, 445 U. S. 535, 542, 546 (1980). The Federal Government owes judicially enforceable duties to a tribe “only to the extent it expressly accepts those responsibilities.” Jicarilla, 564 U. S., at 177. Whether the Government has expressly accepted such obligations “must train on specifc rights-creating or duty- imposing” language in a treaty, statute, or regulation. Nav- ajo Nation, 537 U. S., at 506. That requirement follows from separation of powers principles. As this Court recog- nized in Jicarilla, Congress and the President exercise the “sovereign function” of organizing and managing “the Indian trust relationship.” 564 U. S., at 175. So the federal courts in turn must adhere to the text of the relevant law—here, the treaty.1 In the Tribe's view, the 1868 treaty imposed a duty on the United States to take affrmative steps to secure water for the Navajos. With respect, the Tribe is incorrect. The Page Proof Pending Publication 1868 treaty “set apart” a reservation for the “use and occupa- tion of the Navajo tribe.” 15 Stat. 668. But it contained no “rights-creating or duty-imposing” language that imposed a duty on the United States to take affrmative steps to se- cure water for the Tribe. Navajo Nation, 537 U. S., at 506. 1 The Navajos have suggested that the Jicarilla line of cases might apply only in the context of claims seeking damages from the United States pursuant to the Tucker Act and Indian Tucker Act. See 28 U. S. C. §§ 1491, 1505; see also Brief for Navajo Nation 29. But Jicarilla's frame- work for determining the trust obligations of the United States applies to any claim seeking to impose trust duties on the United States, including claims seeking equitable relief. That is because Jicarilla's reasoning rests upon separation of powers principles—not on the particulars of the Tucker Acts. As Jicarilla explains, the United States is a sovereign, not a private trustee, and therefore the trust obligations of the United States to the Indian tribes are established and governed by treaty, statute, or regulation, rather than by the common law of trusts. See 564 U. S., at 165, 177. Stated otherwise, the trust obligations of the United States to the Indian tribes are established by Congress and the Executive, not cre- ated by the Judiciary. Cite as: 599 U. S. 555 (2023) 565

Opinion of the Court

Notably, the 1868 treaty did impose a number of specifc duties on the United States. Cf. Jicarilla, 564 U. S., at 184– 185. For example, the treaty required the United States to construct a number of buildings on the reservation, including schools, a chapel, a carpenter shop, and a blacksmith shop. 15 Stat. 668–669. The treaty also mandated that the United States provide teachers for the Navajos' schools for at least 10 years, and provide articles of clothing or other goods to the Navajos. Id., at 669. And the treaty required the United States to supply seeds and agricultural implements for up to three years. Ibid. But the treaty said nothing about any affrmative duty for the United States to secure water. And as this Court has stated, “Indian treaties cannot be rewritten or expanded be- yond their clear terms.” Choctaw Nation v. United States, 318 U. S. 423, 432 (1943); cf. Jicarilla, 564 U. S., at 173–174, 177–178; Navajo Nation, 537 U. S., at 506–507; Mitchell, 445 Page Proof Pending Publication U. S., at 542, 546. So it is here. Moreover, it would be anomalous to conclude that the United States must take affrmative steps to secure water given that the United States has no similar duty with respect to the land on the reservation. For example, under the treaty, the United States has no duty to farm the land, mine the minerals, or harvest the timber on the reservation—or, for that matter, to build roads and bridges on the reserva- tion. Cf. id., at 542–543. Just as there is no such duty with respect to the land, there likewise is no such duty with re- spect to the water. To be sure, this Court's precedents have stated that the United States maintains a general trust relationship with Indian tribes, including the Navajos. Jicarilla, 564 U. S., at 176. But as the Solicitor General explains, the United States is a sovereign, not a private trustee, meaning that “Congress may style its relations with the Indians a trust without as- suming all the fduciary duties of a private trustee, creating a trust relationship that is limited or bare compared to a 566 ARIZONA v. NAVAJO NATION

Opinion of the Court

trust relationship between private parties at common law.” Id., at 174 (internal quotation marks omitted). Therefore, unless Congress has created a conventional trust relation- ship 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. Id., at 178. Here, nothing in the 1868 treaty establishes a con- ventional trust relationship with respect to water. In short, the 1868 treaty did not impose a duty on the United States to take affrmative steps to secure water for the Tribe—including the steps requested by the Navajos here, such as determining the water needs of the Tribe, pro- viding an accounting, or developing a plan to secure the needed water. Of course, it is not surprising that a treaty ratifed in 1868 did not envision and provide for all of the Navajos' current water needs 155 years later, in 2023. Under the Constitu- tion's separation of powers, Congress and the President may Page Proof Pending Publication update the law to meet modern policy priorities and needs. To that end, Congress may enact—and often has enacted— legislation to address the modern water needs of Americans, including the Navajos, in the West. Indeed, Congress has authorized billions of dollars for water infrastructure for the Navajos. See, e. g., Tr. of Oral Arg. 5, 11; Consolidated Ap- propriations Act, 2021, Pub. L. 116–260, 134 Stat. 3230.2 But it is not the Judiciary's role to update the law. And on this issue, it is particularly important that federal courts not do so. Allocating water in the arid regions of the Amer- ican West is often a zero-sum situation. See Brief for West- ern Water Users and Trade Associations as Amici Curiae

2 In this Court, the Navajos also briefy point to the 1849 treaty. But that treaty did not grant the Navajos a reservation. In that treaty, the United States agreed to “designate, settle, and adjust” the boundaries of the Navajo territory at some future point. 9 Stat. 975. No provision of the 1849 treaty obligated the United States to take affrmative steps to secure water for the Navajos. Cite as: 599 U. S. 555 (2023) 567

Opinion of the Court

13–14, 18–21. And the zero-sum reality of water in the West underscores that courts must stay in their proper constitu- tional lane and interpret the law (here, the treaty) according to its text and history, leaving to Congress and the President the responsibility to enact appropriations laws and to other- wise update federal law as they see ft in light of the compet- ing contemporary needs for water.

III The Navajo Tribe advances several other arguments in support of its claim that the 1868 treaty requires the United States to take affrmative steps to secure water for the Nav- ajos. None is persuasive. First, the Navajos note that the text of the 1868 treaty established the Navajo Reservation as a “permanent home.” 15 Stat. 671. In the Tribe's view, that language means that the United States agreed to take affrmative steps to secure Page Proof Pending Publication water. But that assertion fnds no support in the treaty's text or history, or in any of this Court's precedents. The 1868 treaty granted a reservation to the Navajos and im- posed a variety of specifc obligations on the United States— for example, building schools and a chapel, providing teach- ers, and supplying seeds and agricultural implements. The reservation contains a number of water sources that the Navajos have used and continue to rely on. But as ex- plained above, the 1868 treaty imposed no duty on the United States to take affrmative steps to secure water for the Tribe. The 1868 treaty, as demonstrated by its text and his- tory, helped to ensure that the Navajos could return to their original land. See Treaty Between the United States of America and the Navajo Tribe of Indians With a Record of the Discussions That Led to Its Signing 2, 4, 10–11, 15 (1968). Second, the Navajos rely on the provision of the 1868 treaty in which the United States agreed to provide the Tribe with certain “seeds and agricultural implements” for up to three years. 15 Stat. 669. In the Navajos' view, 568 ARIZONA v. NAVAJO NATION

Opinion of the Court

those seeds and implements would be unusable without water. But the reservation contains a number of water sources that the Navajos have used and continue to rely on. And the United States's duty to temporarily provide seeds and agricultural implements for three years did not include an additional duty to take affrmative steps to secure water, and to do so indefnitely into the future. If anything, the treaty's express requirement that the United States supply seeds and agricultural implements for a 3-year period—like the treaty's requirement that the United States build schools, a chapel, and the like—demonstrates that the United States and the Navajos knew how to impose specifc affrma- tive duties on the United States when they wanted to do so. Third, the Navajos refer to the lengthy Colorado River water rights litigation that unfolded in a series of cases de- cided by this Court from the 1960s to the early 2000s, and they note that the United States once opposed the interven- Page Proof Pending Publication tion of the Navajos in that litigation. See Response of United States to Motion of Navajo Tribe To Intervene in Arizona v. California, O. T. 1961, No. 8, Orig. The Navajos point to the United States's opposition as evidence that the United States has control over the reserved water rights. According to the Navajos, the United States's purported con- trol supports their view that the United States owes trust duties to the Navajos. But the “Federal Government's lia- bility” on a breach-of-trust claim “cannot be premised on con- trol alone.” United States v. Navajo Nation, 556 U. S. 287, 301 (2009). Again, the Federal Government must “ex- pressly accep[t]” trust responsibilities in a treaty, statute, or regulation that contains “rights-creating or duty-imposing” language. United States v. Jicarilla Apache Nation, 564 U. S. 162, 177 (2011); United States v. Navajo Nation, 537 U. S. 488, 506 (2003). The Navajos have not identifed any- thing of the sort. In addition, the Navajos may be able to assert the interests they claim in water rights litigation, in- cluding by seeking to intervene in cases that affect their Cite as: 599 U. S. 555 (2023) 569

Opinion of the Court

claimed interests, and courts will then assess the Navajos' claims and motions as appropriate. See 28 U. S. C. § 1362; Arizona v. California, 460 U. S. 605, 615 (1983); see also Blatchford v. Native Village of Noatak, 501 U. S. 775, 784 (1991); Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463, 472–474 (1976).3 Fourth, the Tribe argues that, in 1868, the Navajos would have understood the treaty to mean that the United States must take affrmative steps to secure water for the Tribe. But the text of the treaty says nothing to that effect. And the historical record does not suggest that the United States agreed to undertake affrmative efforts to secure water for the Navajos—any more than the United States agreed to farm land, mine minerals, harvest timber, build roads, or con- struct bridges on the reservation. The record of the treaty negotiations makes no mention of any water-related obliga- tions of the United States at all. See Treaty Between the United States of America and the Navajo Tribe of Indians Page Proof Pending Publication With a Record of the Discussions That Led to Its Signing.4

* * * The 1868 treaty reserved necessary water to accomplish the purpose of the Navajo Reservation. See Winters v. United States, 207 U. S. 564, 576–577 (1908). But the treaty

3 Similarly, the Navajos argue that the United States's control over the Colorado River “drives home the duty to secure water.” Brief for Navajo Nation 33, 40. But as already explained, the Tribe has failed to identify any such duty in the 1868 treaty. 4 The intervenor States separately argue that the Navajo Tribe's claimed remedies with respect to the Lower Colorado River would inter- fere with this Court's decree in Arizona v. California, 547 U. S. 150 (2006). The question of whether certain remedies would violate the substance of this Court's 2006 decree is a merits question, not a question of subject- matter jurisdiction. Because we conclude that the treaty imposes no duty on the United States to take affrmative steps to secure water in the frst place, we need not reach the question of whether particular remedies would confict with this Court's 2006 decree. 570 ARIZONA v. NAVAJO NATION

Thomas, J., concurring

did not require the United States to take affrmative steps to secure water for the Tribe. We reverse the judgment of the U. S. Court of Appeals for the Ninth Circuit. It is so ordered. Justice Thomas, concurring. I join the Court's opinion in full, but write separately to highlight an additional and troubling aspect of this suit. For decades, this Court has referred to “a general trust relation- ship between the United States and the Indian people.” United States v. Mitchell, 463 U. S. 206, 225 (1983); see also Seminole Nation v. United States, 316 U. S. 286, 296–297 (1942); Haaland v. Brackeen, 599 U. S. 255, 274–275 (2023). Here, in allowing the Navajo Nation's “breach of trust” claim to go forward, the Ninth Circuit appears to have understood that language as recognizing a generic legal duty of the Fed- eral Government toward Indian tribes or, at least, as placing Page Proof Pending Publication a thumb on the scale in favor of declaring that legal duties are owed to tribes. See 26 F. 4th 794, 813 (2022). As the Court explains, the Nation has pointed to no source of legally enforceable duties supporting its claim in this suit. But the Ninth Circuit's reasoning refects deeper problems with this Court's frequent invocation of the Indian “ trust relationship.” At the outset, it should be noted that our precedents' “trust” language can be understood in two different ways. In one sense, the term “trust” could refer merely to the trust that Indians have placed in the Federal Government. If that is all this language means, then I have no objection. Many citizens (and foreign nations) trust the Federal Gov- ernment to do the right thing. Determining how to do right by the competing interests of the country's millions of citi- zens, however, is generally a job for the political branches, not courts. By contrast, the term “trust” also has a well-understood meaning at law: a relationship in which a trustee has legally enforceable duties to manage a discrete trust corpus for cer- Cite as: 599 U. S. 555 (2023) 571

Thomas, J., concurring

tain benefciaries. See Restatement (Third) of Trusts § 2 (2001). At times, the Federal Government has expressly created such discrete legal trusts for Indians—by, for exam- ple, placing parcels of land or specifed sums of money into trust. See, e. g., Cass County v. Leech Lake Band of Chip- pewa Indians, 524 U. S. 103, 106–107, 114 (1998) (describing statutory grants of authority to place lands in trust for Indi- ans); Seminole Nation, 316 U. S., at 293–294 (describing “the Government's promise” in a particular treaty “to establish a $500,000 trust fund” for the Seminole Nation). But, when resolving disputes about those trusts, the Court's “trust” language has gone beyond the discrete terms of those trusts; for example, the Court has alluded generally to “the distinc- tive obligation of trust incumbent upon the Government in its dealings” with Indians and the Government's “moral obli- gations of the highest responsibility and trust.” Id., at 296– 297. In those and other cases, the Court has accordingly blurred the lines between the political branches' general Page Proof Pending Publication moral obligations to Indians, on the one hand, and specifc fduciary obligations of the Federal Government that might be enforceable in court, on the other. See, e. g., Mitchell, 463 U. S., at 225; Seminole Nation, 316 U. S., at 296–297; see also Cobell v. Norton, 240 F. 3d 1081, 1086 (CADC 2001); Shoshone Indian Tribe of Wind River Reservation v. United States, 364 F. 3d 1339, 1348 (CA Fed. 2004). In United States v. Jicarilla Apache Nation, 564 U. S. 162 (2011), the Court took steps to rectify this confusion. There, we explained that the Federal Government is “not a private trustee” but a “sovereign,” id., at 173–174, and that “[t]he Government assumes Indian trust responsibilities only to the extent it expressly accepts those responsibilities by statute,” id., at 177. Accordingly, any legal trusts established or du- ties self-imposed by the Government for a tribe's beneft are “defned and governed by statutes rather than the common law.” Id., at 174; see also id., at 173 (emphasizing that “ `[t]he general relationship between the United States and the Indian tribes is not comparable to a private trust rela- 572 ARIZONA v. NAVAJO NATION

Thomas, J., concurring

tionship' ”). The Court's opinion today represents a step in the same direction, making clear that tribes' legal claims against the Government must be based on specifc provisions of positive law, not merely an amorphous “ trust relationship.” However, the Court has also invoked the “trust relation- ship” to shape at least two other areas of its Indian-law ju- risprudence—with questionable results. For example, the Court has identifed “the unique trust relationship” with the Indians as the source of pro-Indian “canons of construction” that are supposedly “applicable [only] in Indian law. ” County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 247 (1985); see also EEOC v. Karuk Tribe Housing Auth., 260 F. 3d 1071, 1081 (CA9 2001) (refusing to apply the Age Discrimination in Employment Act of 1967 to tribes in part because of those canons). But it is far from clear how such a trust relationship would support different interpre- Page Proof Pending Publication tive tools. The frst cases to apply those pro-Indian canons did not ground them in any “trust relationship,” but in the more basic idea that ambiguous treaty provisions should be construed against the drafting party. See, e. g., Patterson v. Jenks, 2 Pet. 216, 229 (1829); Worcester v. Georgia, 6 Pet. 515, 552 (1832); The Kansas Indians, 5 Wall. 737, 760 (1867); Restatement (Second) of Contracts § 206 (1979); Restate- ment (First) of Contracts § 505 (1932). These canons then “jumped without discussion from the interpretation of treat- ies to the interpretation of statutes” in the 20th century. A. Barrett, Substantive Canons and Faithful Agency, 90 B. U. L. Rev. 109, 152 (2010). To this day, it remains unclear how the “trust relationship” could justify freestanding pro-Indian canons that authorize courts to depart from the ordinary rules of statutory interpretation. Next, the Court has also suggested that the “trust rela- tionship” provides the Federal Government with an addi- tional power, not enumerated in the Constitution, to “do all Cite as: 599 U. S. 555 (2023) 573

Thomas, J., concurring

that [is] required” to protect Indians. Morton v. Mancari, 417 U. S. 535, 552 (1974) (internal quotation marks omitted); see also Board of County Comm'rs v. Seber, 318 U. S. 705, 715–716 (1943). In doing so, the Court has apparently used the trust relationship to feed into the so-called plenary power that Congress supposedly enjoys over Indian affairs. But the Court has also approved the use of that power to, among other things, restrict tribal sovereignty and “elimi- nate tribal rights.” See South Dakota v. Yankton Sioux Tribe, 522 U. S. 329, 343 (1998); Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U. S. 463, 501 (1979); Haaland, 599 U. S., at 367 (Thomas, J., dissenting). Accordingly, it is diffcult to see how such a plenary power could be rooted in a trust relationship with Indians. And it seems at least slightly incongruous to use Indians' trust in the Government as both the basis for a power that can re- strict tribal rights and canons of interpretation that favor Page Proof Pending Publication Indians. The infuence of the “trust relationship” idea on these doc- trinal areas is troubling, as the trust relationship appears to lack any real support in our constitutional system. See id., at 358–359. The text of the Constitution (which mentions Indians only in the contexts of commerce and apportionment) is completely silent on any such trust relationship. See Art. I, §§ 2, 8; Amdt. 14, § 2. Further, the trust relationship does not have any historical basis. Its genesis is usually traced to this Court's statement in Cherokee Nation v. Georgia, 5 Pet. 1 (1831), that the relation of the United States to Indians has “resembl[ed] that of a ward to his guardian,” id., at 17; see also F. Cohen, Handbook of Federal Indian Law § 2.02[2], p. 117 (2012) (Cohen). However, that statement was dicta, see Haaland, 599 U. S., at 357–359 (Thomas, J., dissenting); and, in any event, the Indian Tribe in that case had a specifc treaty calling for the Federal Government's “protection,” Cherokee Nation, 5 Pet., at 17. Some treaties with tribes 574 ARIZONA v. NAVAJO NATION

Gorsuch, J., dissenting

have contained similar provisions; others have not. Com- pare Treaty With the Wyandots, 7 Stat. 31, with Treaty With the Mohawks, 7 Stat. 61. And, of course, some tribes before and after the Founding engaged in warfare with the Federal Government. Cohen § 1.03[2], at 36; id., § 1.03[3], at 40. In short, the idea of a generic trust relationship with all tribes—to say nothing of legally enforceable fduciary du- ties—seems to lack a historical or constitutional basis. In future cases, we should clarify the exact status of this amorphous and seemingly ungrounded “trust relationship.” As a start, it would be helpful to acknowledge that many of this Court's statements about the trust relationship were mere dicta. E. g., Seminole Nation, 316 U. S., at 293–294 (discrete trust); Mancari, 417 U. S., at 551–552 (equal protec- tion challenge to Government hiring program); Seber, 318 U. S., at 707 (state taxes on Indian lands). In the meantime, however, the Court should take care to ensure that this con- Page Proof Pending Publication fusion does not spill over into yet further areas of the law.

Justice Gorsuch, with whom Justice Sotomayor, Jus- tice Kagan, and Justice Jackson join, dissenting. Today, the Court rejects a request the Navajo Nation never made. This case is not about compelling the federal government to take “affrmative steps to secure water for the Navajos.” Ante, at 558. Respectfully, the relief the Tribe seeks is far more modest. Everyone agrees the Navajo received enforceable water rights by treaty. Everyone agrees the United States holds some of those water rights in trust on the Tribe's behalf. And everyone agrees the extent of those rights has never been assessed. Adding those pieces together, the Navajo have a simple ask: They want the United States to identify the water rights it holds for them. And if the United States has misappropriated the Navajo's water rights, the Tribe asks it to formulate a plan to stop doing so prospectively. Because there is nothing re- Cite as: 599 U. S. 555 (2023) 575

Gorsuch, J., dissenting

markable about any of this, I would affrm the Ninth Circuit's judgment and allow the Navajo's case to proceed.

I Understanding this lawsuit requires at least three pieces of context the Court's opinion neglects. It requires some understanding of the history that led to the Treaty of 1868 establishing the Navajo Reservation. It requires some in- sight into the discussions that surrounded that Treaty. Fi- nally, it requires an appreciation of the many steps the Nav- ajo took to avoid this litigation.

A For centuries, the Navajo inhabited a stretch of land in “present-day northwestern New Mexico, northeastern Ari- zona, and the San Juan drainage beyond.” J. Kessell, Gen- eral Sherman and the Navajo Treaty of 1868: A Basic and Page Proof Pending Publication Expedient Misunderstanding, 12 W. Hist. Q. 251, 253 (1981) (Kessell). This ancestral home was framed by “four moun- tains and four rivers” the Tribe considered sacred. Treaty Between the United States of America and the Navajo Tribe of Indians, With a Record of the Discussions That Led to Its Signing 2 (1968) (Treaty Record); see also E. Rosser, Ahis- torical Indians and Reservation Resources, 40 Env. L. 437, 445 (2010). There, tribal members “planted their subsis- tence crops,” “hunted and gathered,” and “r[an] their live- stock” over the plains. Kessell 253. In the 1860s, that way of life changed forever. In the aftermath of the Mexican-American War—and following a period of rapid westward expansion—the United States found itself embroiled in a series of bitter conficts with the Navajo. P. Iverson, Diné: A History of the Navajos 37–48 (2002) (Iverson). Eventually, the United States tasked James Henry Carleton with resolving them. Id., at 47–48. “Determined to bring an end to Native resistance in the ter- 576 ARIZONA v. NAVAJO NATION

Gorsuch, J., dissenting

ritory,” he elected for a program of “removal, isolation, and incarceration.” Id., at 48. He hoped that time on a reser- vation would teach the Navajo “ `the art of peace,' ” and that, while confned, they might “ `acquire new habits, new values, new modes of life.' ” Id., at 49. In time, he imagined, “ `the old Indians will die off and carry with them the latent long- ings for murder and robbing; the young ones will take their places without these longings: and thus, little by little, they will become a happy and contented people.' ” Ibid. This vision found support from others in the federal government. As Commissioner of Indian Affairs William P. Dole put it in his annual report, the situation with the Navajo “ `de- mand[ed] the earliest possible interposition of the military force of the government.' ” Ibid. In his view, only putting the Navajo on a “ `suitable reservatio[n]' ” would end their “ `wild and predatory life.' ” Ibid. In settling on this plan, the federal government had goals Page Proof Pending Publication in mind beyond reducing confict. As Carleton explained, “ `[b]y the subjugation and colonization of the Navajo [T]ribe we gain for civilization their whole country, which is much larger in extent than the [S]tate of Ohio, and, besides being the best pastoral region between the two oceans, is said to abound in the precious as well as [other] useful metals.' ” Id., at 50. The “ `exodus of this whole people from the land of their fathers' ” would be, he imagined, “ `a touching sight.' ” Ibid. But no matter. He saw it as the Navajo's “ `destiny' ” to “ `give way to the insatiable progress of our race.' ” Ibid. Removal demanded fnding a new home for the Tribe. Carleton picked the location himself: an area hundreds of miles from the Navajo's homeland “commonly called the Bos- que Redondo.” Ibid.; see also Kessell 254. Warning signs fashed from the start. Offcers tasked with surveying the site cautioned that it was “ `remote' ” from viable “ `forage' ” and that “ `[b]uilding material' ” would have to come from a signifcant distance. Iverson 50. Worse, they found that Cite as: 599 U. S. 555 (2023) 577

Gorsuch, J., dissenting

the water supply was meager and contained “ `much un- healthy mineral matter.' ” Ibid.; see also Kessell 269. Carleton ignored these fndings and charged ahead with his plan. Iverson 50. That left the not-so-small matter of securing the Navajo's compliance. To that end, the federal government unleashed a “maelstrom of destruction” on the Tribe. Id., at 51. Be- fore all was said and done, “the Navajo had to be literally starved into surrender.” 2 Hearing before the U. S. Com- mission on Civil Rights, Offce of General Counsel, Demo- graphic and Socio-Economic Characteristics of the Navajo 6 (1973) (Commission Report). “[T]housands of U. S. troops roamed the Navajo [Country] destroying everything the Navajo could use; every feld, storehouse, and hut was burned.” Ibid. The campaign was “brief, blunt, and, when combined with a particularly diffcult winter,” effective. Iv- erson 51. By the winter of 1863–1864, most of the Navajo Page Proof Pending Publication had surrendered. Commission Report 6–7; see also Iver- son 51. That period of violence led to “the Long Walk.” In truth, it was not one walk but many—over 53 separate incidents, according to some. Id., at 52. In each case, federal offcers rounded up tribal members, “[h]erded [them] into columns,” and marched them hundreds of miles from their home. Kes- sell 254. “Many died en route, some shot by the souldiers.” Commission Report 7. As one Navajo later recounted, peo- ple were killed “ `on the spot if they sa[id] they [were] tired or sick or if they stop[ped] to help someone.' ” Iverson 55. Still “[o]thers fell victim to slavers with the full complicity of the U. S. offcials.” Commission Report 7. Those who survived wound up at “a destination that sur- passed their fears.” Iverson 52. Bosque Redondo was just what the offcers had warned: a “semiarid, alkaline, fuel- stingy, insect-infested environment.” Kessell 255. And, just as they predicted, water proved a serious issue. The Tribe was forced to rely on a “ `little stream winding through 578 ARIZONA v. NAVAJO NATION

Gorsuch, J., dissenting

an immense plain.' ” Iverson 59. But its “water was bad.” Kessell 259. No surprise, then, that “[o]nly half the land under cultivation at the Bosque was productive.” Ibid. No surprise either that even the productive land yielded “one disastrous crop failure after another.” Id., at 255. Further feeding the crisis, Carleton “badly underestimated the num- ber of Navajos who would end up at the Bosque Redondo.” Ibid. All told, the relocation proved a “catastrophe for the Navajo; 2,000 died there in four years.” Commission Re- port 8. B “By 1868 even the U. S. government could see” that the present conditions could not persist. Ibid. So it set out to relocate the Navajo once more. To that end, the United States sent members of the Indian Peace Commission to ne- gotiate a new treaty with the Tribe. Kessell 257–258. Led by General William Tecumseh Sherman, the Commission dis- Page Proof Pending Publication favored allowing the Navajo to return to their homeland. Ibid. Doing that, the Commission feared, risked rekindling old hostilities. Id., at 257. So Sherman tried to persuade the Navajo to relocate someplace else. Understanding the importance of water to the Navajo, he offered them assur- ances that other locations would have “plenty of water.” Treaty Record 5. The Navajo would have none of it. Their lead negotiator, Barboncito, refused to “go to any other country except [his] own.” Ibid. Any place else, he said, could “turn out an- other Bosque Redondo.” Id., at 5–6. “[O]utside [our] own country,” Barboncito told Sherman, “we cannot raise a crop, but in it we can raise a crop almost anywhere.” Id., at 3. “[W]e know this land does not like us,” he said of Bosque Redondo, and “neither does the water.” Ibid. Along the way, he spoke of “the heart of Navajo country,” which he described as including a place where “the water fows in abundance.” Id., at 8. In the end, “[t]he will of the Nava- Cite as: 599 U. S. 555 (2023) 579

Gorsuch, J., dissenting

jos—personifed in the intense resolve of Barboncito,” won out. Kessell 259. Sherman came to realize that, if he left the Navajo at Bosque Redondo, the dire conditions—includ- ing “ `the foul character of [the] water' ”—would eventually induce them to drift away from the encampment. Id., at 260. And the Navajo fatly refused to move to some other unfamiliar place. Ibid. Arriving at that conclusion proved simple enough; arriv- ing upon a treaty proved more challenging. There was, of course, no small power asymmetry. As one Senator noted at the time, it was a curious feature that the Commissioners set out to “ `conclude a treaty with Indians' ” who were at that very moment being “ `held on a reservation against their will.' ” Id., at 259. Language barriers presented complica- tions too. Messages had to be translated twice—frst from English to Spanish, and then from Spanish to Navajo. Id., at 261. Aggravating matters, the parties saw the world Page Proof Pending Publication very differently. The United States' representatives “spoke of artifcial lines on maps, of parallels and meridians”; the Navajo spoke “of geographical features, of canyons, moun- tains, and mesas.” Ibid. The United States' representa- tives “talked about ownership and a claim to the land”; the Navajo talked about “using the land.” Ibid. As a result, the parties often “misunderstood each other.” Ibid. And whether intentionally or inadvertently, Sherman “misled” the Navajo about, among other things, the size of their reser- vation. Id., at 263. He promised twice the land that they received in the fnal accounting. Ibid. In the end, the Treaty of 1868 provided the Navajo less land per capita—two-thirds less—than the other Tribes the Indian Peace Commission would go on to negotiate with. Id., at 268. It seems that owed, in no small part, to the negotiators' understanding that the Navajo had “already ex- perienced irrigation agriculture” and could plausibly get by with less. Ibid. Indeed, when providing instructions to 580 ARIZONA v. NAVAJO NATION

Gorsuch, J., dissenting

the Indian Peace Commission about how they should negoti- ate with the Navajo, the Secretary of the Interior discussed the possibility of agriculture as bearing on the appropriate size of the Tribe's reservation. Unlike the Navajo, he thought, “ `[w]ild Indians cannot at once be transformed into farmers. They must pass through the intermediate stage of herdsmen. They must frst become pastoral, then agricul- tural.' ” Id., at 269. Despite all this, “[f]or the Navajos the treaty signifed not defeat, but victory, and not disappearance, but continuation.” Iverson 36. “The agreement allowed [them] to return to a portion of their home country.” Ibid. Nor would that “por- tion” remain so confned. The Navajo often struggled to stay on the narrow tract of land the United States provided. Commission Report 9. In practice, the federal government often tolerated (and sometimes encouraged) the Navajo to live and tend to livestock off reservation to preserve their self-suffciency. Kessell 271. These arrangements contin- Page Proof Pending Publication ued until the 1930s, when Congress frst “enact[ed] legisla- tion defning the exterior boundaries of the Navajo Reserva- tion.” Id., at 272. Over the ensuing decades, Congress would go on to extend the reservation's boundaries repeat- edly. See, e. g., Act of June 14, 1934, 48 Stat. 960; Act of Feb. 21, 1931, ch. 269, 46 Stat. 1204; Act of May 23, 1930, ch. 317, 46 Stat. 378. C Fast forward to the present. Today, the Navajo Reserva- tion has become “the largest Indian reservation in the United States,” with over “17 million acres,” and over “300,000 members.” App. 90. Its western boundary runs alongside a vast stretch of the Colorado River. Id., at 91. Yet even today, water remains a precious resource. “Mem- bers of the Navajo Nation use around 7 gallons of water per day for all of their household needs”—less than one-tenth the amount the average American household uses. Id., at 101. In some parts of the reservation, as much as 91% of Navajo households “lack access to water.” Id., at 102. Cite as: 599 U. S. 555 (2023) 581

Gorsuch, J., dissenting

That defcit owes in part to the fact that no one has ever assessed what water rights the Navajo possess. For in- stance, “[a]lthough the Navajo Reservation is adjacent to the Colorado River, the Navajo Nation's rights to use water from the Colorado River” have never been adjudicated. Id., at 36. The United States acknowledges that it holds certain water rights “in trust” for the Navajo. See Tr. of Oral Arg. 26, 40. It does not dispute that it exercises considerable control over the disposition of water from the Colorado River. And it concedes that the Navajo's water rights “may . . . include some portion of the mainstream of the Colo- rado.” Id., at 33. But instead of resolving what the Nava- jo's water rights might be, the United States has sometimes resisted efforts to answer that question. The current legal regime governing the Colorado River began with a 1922 interstate compact between seven States. That agreement split the Colorado into two basins—an Upper Basin and a Lower Basin. See Colorado River Com- Page Proof Pending Publication pact, Art. II, Colo. Rev. Stat. § 37–61–101 (2022). The com- pact answered some high-level questions about which States could lay claim to which sections of the river. But it did not purport to “affec[t] the obligations of the United States of America to Indian [T]ribes.” Id., Art. VII. In that way, it left the Navajo with no insight into what water they could claim as their own. Six years later, Congress entered the picture by passing the Boulder Canyon Project Act, 45 Stat. 1057, codifed at 43 U. S. C. §§ 617–619b. That Act had a profound impact on the Lower Basin. It authorized the construction of the Hoover Dam and the creation of Lake Mead. § 617. More than that, it gave the Secretary of the Interior substantial power to divvy up the resulting impounded water. Failing agree- ment among the States in the region, the law authorized the Secretary to enter into contracts for the delivery of water and provided that “[n]o person” may have water from the mainstream of the Colorado in the Lower Basin “except by contract.” § 617d; see also Arizona v. California, 373 U. S. 582 ARIZONA v. NAVAJO NATION

Gorsuch, J., dissenting

546, 565 (1963) (Arizona I). In adopting this law, Congress hoped “to put an end to the long-standing dispute over Colo- rado River waters.” Id., at 560. Reality never quite caught up to the law's ambitions. After an agreement among the States failed to emerge and the Secretary began issuing contracts to various users, Ari- zona in 1952 brought an original action in this Court against California seeking a declaration of its water rights in the Lower Basin. Id., at 550–551. Several other States inter- vened. Ibid. So did the United States. Ibid. In doing so, the federal government claimed the need to “protect fed- eral interests, including the rights of the Navajo Nation and twenty-four other Indian [T]ribes in the Lower Basin.” App. 104. As the litigation unfolded, however, the Navajo began to worry that the United States did not have their best interests in mind. In 1956, the Navajo Nation sought leave to fle (along with six other Tribes) a motion seeking Page Proof Pending Publication “to defne the scope of the representation of the [T]ribes by the United States” and objecting to what they considered a “lack of effective representation and [a] confict of interest.” Id., at 105. That motion was denied. Ibid. Proceeding without the Navajo, this Court referred the litigation to a Special Master. In time, the Special Master prepared a report and recommendation that omitted any mention of the Tribe. Ibid. In response, the Navajo wrote to the Attorney General. They asked the United States to object to the Special Master's report on their behalf. Id., at 105–106. The Navajo say they never received a response. Id., at 106. For its part, the United States eventually did object—but not on the grounds the Navajo sought. Ibid. Having seen enough, the Navajo in 1961 moved to inter- vene. Ibid. They “argued that the United States had failed to vigorously assert” their interests. Ibid. More than that, the Tribe contended, the United States had “ `abandoned the case so far as the adjudication of the rights of the Navajo Indians [was] concerned.' ” Ibid. The United Cite as: 599 U. S. 555 (2023) 583

Gorsuch, J., dissenting

States opposed the Tribe's motion. Ibid. On its view, it had already “ `undertaken representation of the interests of several Indian [T]ribes,' ” so there was no need for the Court to hear from the Navajo. Id., at 107. In any event, the United States assured the Court, it would continue to apply “ `considerations of justice' ” in its dealings with the Tribe. Ibid. The government conceded, however, “no evidence had been submitted on behalf of the Navajo Nation for uses from the mainstream.” Ibid. And it conceded that “such evi- dence would have had to be submitted in order for the Court to consider the issue of the Navajo Nation's rights to the mainstream.” Ibid. As with their previous attempts to make their voices heard in the litigation, the Navajo's motion to intervene was denied. Id., at 108. In 1964, the litigation Arizona initiated more than a decade earlier culminated in a decree. See Arizona v. California, 376 U. S. 340. It allocated the Lower Basin Colorado River Page Proof Pending Publication mainstream among various parties—including fve other Tribes whose interests the United States did assert. See id., at 344–345. The decree also permitted the federal gov- ernment to release water pursuant to certain “valid con- tracts” and applicable federal laws. Id., at 343; Brief for Federal Parties 7. But the Tribe's rights remained in limbo. The United States never asserted any rights on the Navajo's behalf; the Navajo never received an opportunity to assert them for themselves. Since 1964, the decree governing the Lower Basin has been modifed at various points. See, e. g., Arizona v. California, 547 U. S. 150 (2006); Arizona v. Cali- fornia, 531 U. S. 1 (2000); Arizona v. California, 466 U. S. 144 (1984). But it has never been modifed to address the Navajo. In the intervening years, the Navajo have asked the fed- eral government—repeatedly—to assess their rights in the mainstream of the Colorado. App. 109. In response to those inquiries, the Tribe received a letter from the Depart- ment of the Interior indicating that the Department still had 584 ARIZONA v. NAVAJO NATION

Gorsuch, J., dissenting

not made “any decisions” about what water rights, if any, the Navajo may have in the river. Id., at 110. The Depart- ment posited that fguring that out would be a “somewhat lengthy process,” one that had “yet to be initiated.” Ibid. Unwilling to wait indefnitely, the Navajo eventually fled this suit. In it, the Navajo sought “injunctive and declara- tory relief to compel the Federal Defendants to determine the water required to meet the needs of the Nation's lands in Arizona and devise a plan to meet those needs to fulfll the promise of the United States to make the Nation's Reser- vation lands a permanent homeland for the Navajo people.” Id., at 86. In other words, the Tribe asked the United States to assess what water rights it holds in trust on the Tribe's behalf pursuant to the Treaty of 1868. Tr. of Oral Arg. 71–72. And if it turns out the United States has misap- propriated those water rights, the Tribe wants the federal government to come up with a plan to set things right.

Page Proof Pending II Publication With a view of this history, the proper outcome of to- day's case follows directly. The Treaty of 1868 promises the Navajo a “permanent home.” Treaty Between the United States of America and the Navajo Tribe of Indians, June 1, 1868, Art. XIII, 15 Stat. 671 (ratifed Aug. 12, 1868) (Treaty of 1868). That promise—read in conjunction with other pro- visions in the Treaty, the history surrounding its enactment, and background principles of Indian law—secures for the Navajo some measure of water rights. Yet even today the extent of those water rights remains unadjudicated and therefore unknown. What is known is that the United States holds some of the Tribe's water rights in trust. And it exercises control over many possible sources of water in which the Tribe may have rights, including the mainstream of the Colorado River. Accordingly, the government owes the Tribe a duty to manage the water it holds for the Tribe in a legally responsible manner. In this lawsuit, the Navajo Cite as: 599 U. S. 555 (2023) 585

Gorsuch, J., dissenting

ask the United States to fulfll part of that duty by assessing what water rights it holds for them. The government owes the Tribe at least that much.

A Begin with the governing legal principles. Under our Constitution, “all Treaties made” are “the supreme Law of the Land.” Art. VI, cl. 2. Congress can pass laws to imple- ment those treaties, see, e. g., Bond v. United States, 572 U. S. 844, 851, 855 (2014), and the Executive Branch can act in accordance with them, see, e. g., Fok Yung Yo v. United States, 185 U. S. 296, 303 (1902). But the Judiciary also has an important role to play. The Constitution extends “[t]he judicial Power” to cases “arising under . . . Treaties made, or which shall be made.” Art. III, § 2, cl. 1. As a result, this Court has recognized that Tribes may sue to enforce rights found in treaties. See Moe v. Confederated Salish Page Proof Pending Publication and Kootenai Tribes of Flathead Reservation, 425 U. S. 463, 472–477 (1976). Other branches share the same understand- ing. In enacting the Indian Trust Asset Reform Act of 2016, Congress confrmed its belief that “commitments made through written treaties” with the Tribes “established en- during and enforceable Federal obligations” to them. 25 U. S. C. § 5601(4)–(5) (emphasis added). The Executive Branch has likewise and repeatedly advanced the position— including in this very litigation—that “a treaty can be the basis of a breach-of-trust claim” enforceable in federal court. Brief for Federal Parties 22–23, n. 5. What rights does a treaty secure? A treaty is “essen- tially a contract between two sovereign nations.” Washing- ton v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 675 (1979). So a treaty's inter- pretation, like “a contract's interpretation, [is] a matter of determining the parties' intent.” BG Group plc v. Republic of Argentina, 572 U. S. 25, 37 (2014). That means courts must look to the “shared expectations of the contracting 586 ARIZONA v. NAVAJO NATION

Gorsuch, J., dissenting

parties.” Air France v. Saks, 470 U. S. 392, 399 (1985). All with an eye to ensuring both sides receive the “beneft of their bargain.” Mobil Oil Exploration & Produc- ing Southeast, Inc. v. United States, 530 U. S. 604, 621 (2000). That exercise entails the application of familiar principles of contract interpretation. Those principles include an im- plied covenant of “the utmost good faith” and fair dealing between the parties. Sullivan v. Kidd, 254 U. S. 433, 439 (1921). They include the doctrine of contra proferentem— the principle that any uncertainty in a contract should be construed against the drafting party. See Lamps Plus, Inc. v. Varela, 587 U. S. –––, ––– – ––– (2019); see also 1 Oppen- heim's International Law 1279 (R. Jennings & A. Watts eds., 9th ed. 1992). And they include the doctrine of unilateral mistake—the notion that, if two parties understand a key provision differently, the controlling meaning is the one held by the party that could not have anticipated the different Page Proof Pending Publication meaning attached by the other. See Restatement (Second) of Contracts § 201(2) (1979). Still other doctrines impose a “higher degree of scrutiny” on contracts made between parties sharing a fduciary rela- tionship, given the risk the fduciary will (intentionally or otherwise) “misuse” its position of trust. 28 R. Lord, Willis- ton on Contracts § 71:53, p. 617 (4th ed. 2020). When it comes to the United States, such fduciary duties must, of course, come from positive law, “not the atmosphere.” Haa- land v. Brackeen, 599 U. S. 255, 273 (2023). But the United States has, through “acts of Congress” and other af- frmative conduct, voluntarily assumed certain specifc fdu- ciary duties to the Tribes. Seminole Nation v. United States, 316 U. S. 286, 287, 297 (1942). That raises the spec- ter of undue infuence—especially since, in many negotia- tions with the Tribes, the United States alone had “repre- sentatives skilled in diplomacy” who were “masters of [its] written language,” who fully “underst[ood] the . . . technical estates known to [its] law,” and who were “assisted by an Cite as: 599 U. S. 555 (2023) 587

Gorsuch, J., dissenting

interpreter [they] employed.” Jones v. Meehan, 175 U. S. 1, 11 (1899). Put together, these insights have long infuenced the inter- pretation of Indian treaties. “The language used in treaties with the Indians should never be construed to their preju- dice.” Worcester v. Georgia, 6 Pet. 515, 582 (1832) (McLean, J., concurring). Rather, when a treaty's words “are suscep- tible of a more extended meaning than their plain import,” we must assign them that meaning. Ibid. Our duty, this Court has repeatedly explained, lies in interpreting Indian treaties “in a spirit which generously recognizes the full obli- gation of this [N]ation.” Tulee v. Washington, 315 U. S. 681, 684–685 (1942); see also United States v. Winans, 198 U. S. 371, 380–381 (1905); Choctaw Nation v. United States, 119 U. S. 1, 27–28 (1886). We sometimes call this interpretive maxim—really just a special application of ordinary contract- interpretation principles—the Indian canon. See F. Cohen, Handbook of Federal Indian Law § 2.02, p. 119 (N. Newton Page Proof Pending Publication ed. 2005); R. Collins, Never Construed to Their Prejudice: In Honor of David Getches, 84 U. Colo. L. Rev. 1, 6–7 (2013). With time, too, these interpretive insights have yielded some more concrete rules. First, courts must “give effect to the terms” of treaties as “the Indians themselves would have understood them.” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 196 (1999); see also Tulee, 315 U. S., at 684. Second, to gain a complete view of the Tribes' understanding, courts may (and often must) “look be- yond the written words to the larger context that frames the Treaty.” Mille Lacs Band, 526 U. S., at 196. That includes taking stock of “the history of the treaty, the negotiations, and the practical construction adopted by the parties.” Choctaw Nation v. United States, 318 U. S. 423, 432 (1943). Third, courts must assume into those treaties a duty of “good faith” on the part of the United States to “protec[t]” the Tribes and their ways of life. See Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S., at 666–667. 588 ARIZONA v. NAVAJO NATION

Gorsuch, J., dissenting

It is easy to see the purchase these rules have for reservation-creating treaties like the one at issue in this case. Treaties like that almost invariably designate prop- erty as a permanent home for the relevant Tribe. See Mc- Girt v. Oklahoma, 591 U. S. –––, ––– (2020). And the prom- ise of a permanent home necessarily implies certain benefts for the Tribe (and certain responsibilities for the United States). One set of those benefts and responsibilities con- cerns water. This Court long ago recognized as much in Winters v. United States, 207 U. S. 564 (1908). That case involved the Milk River, which fows along the northern border of the Fort Belknap Reservation. Id., at 565–567 (statement of McKenna, J.). Upstream landowners invested their own resources to build dams and reservoirs which indirectly deprived the Tribes living on the reserva- tion of water by reducing the volume available downstream. Id., at 567. The United States sued on the Tribes' behalf to Page Proof Pending Publication enjoin the landowners' actions. Id., at 565. In assessing the government's claim, the Court looked to the agreement establishing that reservation and found no language speak- ing to the Tribes' water rights at all. Id., at 575–576. Nev- ertheless, the Court concluded, the agreement reserved water rights for the Tribes in the Milk River and found for the government. Id., at 577. The Court considered it in- conceivable that, having once enjoyed “benefcial use” of nearby waters, the Tribes would have contracted to “give up all th[at].” Id., at 576. After all, the lands described in the reservation “were arid and, without irrigation, were practi- cally valueless,” and “communities could not be established” without access to adequate water. Ibid. (internal quotation marks omitted). For these reasons, the agreement's provi- sions designating the land as a permanent home for the Tribes necessarily implied that the Tribes would enjoy con- tinued access to nearby sources of water. Ibid. A contrary reading, the Court said, would “impair or defeat” the parties' agreement. Id., at 577. Cite as: 599 U. S. 555 (2023) 589

Gorsuch, J., dissenting

While Winters involved a claim brought by the United States, the federal government asserted “the rights of the Indians” themselves. Id., at 576. This Court's subsequent cases have confrmed as much. In United States v. Powers, 305 U. S. 527 (1939), for instance, this Court cited Winters as authority for its holding that a different treaty impliedly “reserved” waters “for the equal beneft of tribal members.” Id., at 532 (emphasis added). So when the reservation was dissolved and the land allotted, “the right to use some por- tion of tribal waters essential for cultivation passed to the owners” of the individual plots of land. Ibid. (emphasis added). Later, in Arizona I, this Court described Winters as standing for the principle that “the Government, when it create[s an] Indian Reservation, intend[s] to deal fairly with the Indians by reserving for them the waters without which their lands would have been useless.” 373 U. S., at 600 (em- phasis added). Congress would not “creat[e] an Indian Res- Page Proof Pending Publication ervation without intending to reserve waters necessary to make the reservation livable.” Id., at 559. Sometimes the United States may hold a Tribe's water rights in trust. When it does, this Court has recognized, the United States must manage those water rights “[a]s a fduciary,” Arizona v. California, 460 U. S. 605, 626–627 (1983) (Arizona II), one held to “the most exacting fduciary standards,” Seminole Nation, 316 U. S., at 297. This is no special rule. “[F]iduciary duties characteristically attach to decisions” that involve “managing [the] assets and distribut- ing [the] property” of others. Pegram v. Herdrich, 530 U. S. 211, 231 (2000). It follows, then, that a Tribe may bring an action in equity against the United States for “fail[ing] to provide an accurate accounting of ” the water rights it holds on a Tribe's behalf. United States v. Tohono O'odham Na- tion, 563 U. S. 307, 318 (2011). After all, it is black-letter law that a plaintiff may seek an accounting “whenever the defendant is a fduciary who has been entrusted with prop- erty of some kind belonging to the plaintiff,” even if the de- 590 ARIZONA v. NAVAJO NATION

Gorsuch, J., dissenting

fendant is not “express[ly]” named a “trustee.” J. Eichen- grun, Remedying the Remedy of Accounting, 60 Ind. L. J. 463, 468–469, and n. 18 (1985) (noting cases); see also A. New- man, G. Bogert, & G. Bogert, Law of Trusts and Trustees § 967, p. 201 (3d ed. 2010) (“fduciary relationship [is] suff- cient to support an action for an accounting” whenever the fduciary exercises “discretion over trust” assets).

B With these principles in mind, return to the Navajo's case and start with the most basic terms of the parties' agree- ment. In signing the Treaty of 1868, the Navajo agreed to “relinquish all right to occupy any territory outside their res- ervation.” Art. IX, 15 Stat. 670. In exchange, the Navajo were entitled to “make the reservation . . . their permanent home.” Art. XIII, id., at 671. Even standing alone, that language creates enforceable water rights under Winters. Page Proof Pending Publication As both parties surely would have recognized, no people can make a permanent home without the ability to draw on ade- quate water. Otherwise, the Tribe's land would be “practi- cally valueless,” “defeat[ing] the declared purpose” of the Treaty. Winters, 207 U. S., at 576–577. Other clues make the point even more obvious. Various features of the Treaty were expressly keyed to an assump- tion about the availability of water. The United States agreed to build certain structures “within said reservation, where . . . water may be convenient.” Art. III, 15 Stat. 668. Under the Treaty's terms, too, individual Navajo were enti- tled to select tracts of land within the reservation to “com- mence farming” and for “purposes of cultivation.” Art. V, ibid. If an individual could show that he “intend[ed] in good faith to commence cultivating the soil for a living,” the Treaty entitled him to “receive seeds and agricultural imple- ments.” Art. VII, id., at 669. Similarly, the Treaty prom- ised large numbers of animals to the Tribe. Art. XII, id., at 670. Those guarantees take as a given that the Tribe Cite as: 599 U. S. 555 (2023) 591

Gorsuch, J., dissenting

could access water suffcient to live, tend crops, and raise animals in perpetuity. As we have seen, “the history of the treaty, the negotia- tions, and the practical construction adopted by the parties” may also inform a treaty's interpretation. Choctaw Nation, 318 U. S., at 432. And here history is particularly telling. Much of the Navajo's plight at Bosque Redondo owed to both the lack of water and the poor quality of what water did exist. General Sherman appreciated this point and ex- pressly raised the availability of water in his negotiations with the Tribe. Treaty Record 5. Doubtless, he did so be- cause everyone had found the water at Bosque Redondo in- suffcient and because the Navajo's strong desire to return home rested in no small part on the availability of water there. Id., at 3, 8. Because the Treaty of 1868 must be read as the Navajo “themselves would have understood” it, Mille Lacs Band, 526 U. S., at 196, it is impossible to con- Page Proof Pending Publication clude that water rights were not included. Really, few points appear to have been more central to both parties' dealings. What water rights does the Treaty of 1868 secure to the Tribe? Remarkably, even today no one knows the answer. But at least we know the right question to ask: How much is required to fulfll the purposes of the reservation that the Treaty of 1868 established? See Nevada v. United States, 463 U. S. 110, 116, n. 1 (1983) (citing cases). We know, too, that a Tribe's Winters rights are not necessarily limited to the water sources found within the corners of their reserva- tion. Winters itself involved a challenge to the misappropri- ation of water by upstream landowners from a river that ran along the border of tribal lands. 207 U. S., at 576. And here the Navajo's Reservation likewise stands adjacent to a long stretch of the Colorado River fowing through both its Upper and Lower Basins. App. 91. Finally, we know that “it is impossible to believe that when . . . the Executive De- partment of this Nation created the [various] reservations” 592 ARIZONA v. NAVAJO NATION

Gorsuch, J., dissenting

in the arid Southwest it was “unaware that . . . water from the [Colorado R]iver would be essential to the life of the Indian people and to the animals they hunted and the crops they raised.” Arizona I, 373 U. S., at 598–599. Nor does the United States dispute any of this. To the contrary, it acknowledges that the Navajo's water rights very well “may . . . include some portion of the mainstream of the Colo- rado” that runs adjacent to their reservation. Tr. of Oral Arg. 33. For our purposes today, that leaves just one question: Can the Tribe state a legally cognizable claim for relief asking the United States to assess what water rights they have? Not even the federal government seriously disputes that it acts “as a fduciary” of the Tribes with respect to tribal wa- ters it manages. Arizona II, 460 U. S., at 627–628. Indeed, when it comes to the Navajo, the United States freely admits that it holds certain water rights for the Tribe “in trust.” Page Proof Pending Publication Tr. of Oral Arg. 40. And of course, that must be so given that the United States exercises pervasive control over much water in the area, including in the adjacent Colorado River. See Arizona I, 373 U. S., at 564–565. Those observations suffce to resolve today's dispute. As we have seen, that exact coupling—a fduciary relationship to a specifc group and complete managerial control over the property of that group—gives rise to a duty to account. See supra, at 16–17. The United States, we know, must act in a “legally [a]dequate” way when it comes to the Navajo's water it holds in trust. Arizona II, 460 U. S., at 627. It follows, as the United States concedes, that the federal gov- ernment could not “legally” dam off the water fowing to their Reservation, as doing so would “interfere with [the Tribe's] exercise of their” water rights. Tr. of Oral Arg. 13. Implicit in that concession is another. Because Winters rights belong to the Navajo themselves, the United States cannot lawfully divert them elsewhere—just as a lawyer can- Cite as: 599 U. S. 555 (2023) 593

Gorsuch, J., dissenting

not dispose of a client's property entrusted to him without permission. And the only way to ensure compliance with that obligation is to give the Tribe just what they request— an assessment of the water rights the federal government holds on the Tribe's behalf.

III The Court does not dispute most of this. It agrees that the Navajo enjoy “water rights implicitly reserved to accom- plish the purpose of the reservation.” Ante, at 558. It agrees that the United States cannot lawfully interfere with those water rights. Ante, at 558, 562, 563. And it leaves open the possibility that the Navajo “may be able to assert the interests they claim in water rights litigation.” Ante, at 568. Really, the Court gets off the train just one stop short. It insists (and then repeats—again and again) that the United States owes no “affrmative duty” to the Navajo Page Proof Pending Publication with respect to water, and therefore does not need to take any “affrmative steps” to help the Tribe on that score. Ante, at 558, 562–569. This reasoning refects three errors.

A The Court begins by misapprehending the nature of the Navajo's complaint. Though it never quite cashes out what the phrase “affrmative steps” means, the Court appears con- cerned that allowing this complaint to proceed could result in a court order requiring the United States to “buil[d] pipe- lines, pumps, wells, or other water infrastructure.” Ante, at 558, 562, 563. More than that, the Court worries that— if a lower court fnds that the United States has any water- related responsibilities to the Tribe—the federal govern- ment might even eventually fnd itself on the hook to “farm land, mine minerals, harvest timber, build roads, or construct bridges on the reservation.” Ante, at 569; see also ante, at 565. 594 ARIZONA v. NAVAJO NATION

Gorsuch, J., dissenting

The Tribe's lawsuit asks for nothing of the sort. The Tribe expressly disavows any suggestion that, “as a matter of treaty interpretation . . . the United States is legally obli- gated to pay for pipelines or aquifers,” for example. Tr. of Oral Arg. 78. Instead and again, the Tribe's complaint seeks simply to “compel the Federal Defendants to determine the water required to . . . fulfll the promise[s]” made to them under the Treaty of 1868. App. 86. Only if the United States is, in fact, “interfer[ing] with the[ir] reserved water rights” in some way, ante, at 562, could the Tribe then ask the federal government to “devise a plan” for achieving com- pliance with its obligations, App. 86. And, for all anyone presently can tell, the United States may be interfering in just that way. Asking the federal government to assess what it holds in trust and to ensure that it is not misappro- priating water that belongs to the Tribe has nothing to do with building pipelines or farming land.

Page Proof Pending B Publication Having mistaken the nature of the Navajo's complaint, the Court proceeds next to analyze it under the wrong legal framework. Citing cases like United States v. Jicarilla Apache Nation, 564 U. S. 162 (2011); United States v. Navajo Nation, 537 U. S. 488 (2003) (Navajo I); and United States v. Mitchell, 445 U. S. 535 (1980) (Mitchell I), the Court tries to hammer a square peg (the Navajo's request) through a round hole (our Tucker Acts framework). See ante, at 563–564, and n. 1. To understand why those cases are inapposite, a little background is in order. When an Indian Tribe seeks damages from the United States, it must usually proceed under the terms of the Tucker Act, 28 U. S. C. § 1491, and the Indian Tucker Act, § 1505. Together, those provisions facilitate suits for money damages in the Court of Federal Claims for claims “arising under the Constitution, laws or treaties of the United States, or Executive orders of the President.” Ibid. Notably, however, the Tucker Acts provide only a selective waiver Cite as: 599 U. S. 555 (2023) 595

Gorsuch, J., dissenting

of sovereign immunity, not a cause of action. To determine whether a Tribe can seek money damages on any given claim, this Court has laid out a two-part test. First, a court must ascertain whether there exists “specifc rights-creating or duty-imposing statutory or regulatory prescriptions,” Navajo I, 537 U. S., at 506, producing a scheme that bears the “hallmarks of a more conventional fduciary relation- ship,” United States v. White Mountain Apache Tribe, 537 U. S. 465, 473 (2003). Second, once a Tribe has identifed such a provision, the court must use “trust principles” to assess whether (and in what amount) the United States owes damages. United States v. Navajo Nation, 556 U. S. 287, 301 (2009) (Navajo II). To describe this regime is to explain why the Court errs in relying on it. The Navajo do not bring a claim for money damages in the Court of Federal Claims under the Tucker Acts (thereby implicating those Acts' selective waiver of sov- ereign immunity). Rather, the Navajo seek equitable relief Page Proof Pending Publication in federal district court on a treaty claim governed by the familiar principles recounted above. See supra, at 12–17. They do so with the help of 28 U. S. C. § 1362, a provision enacted after the Tucker Acts that gives federal district courts “original jurisdiction” over “civil actions” brought by Tribes “under the Constitution, laws, or treaties of the United States.” Ibid.; see also Brief for Historians as Amici Curiae 31. As this Court has noted, § 1362 serves “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. That perfectly summarizes the claim that the Navajo advance here—a treaty-based claim bottomed on Winters that all agree the United States could bring in its capacity as a trustee. Nor does anyone question that the United States has waived sovereign immunity for claims “seeking relief other than money damages” based on an allegation that federal offcials have “acted or failed to act” as the law re- quires. 5 U. S. C. § 702. 596 ARIZONA v. NAVAJO NATION

Gorsuch, J., dissenting

This Court's decisions have long recognized that claims for equitable relief in federal district court operate under a dis- tinct framework than claims for money damages brought in the Court of Federal Claims under the Tucker Acts. In United States v. Mitchell, 463 U. S. 206 (1983) (Mitchell II), for example, the United States argued that the Court should not allow an action for damages under the Tucker Acts to proceed because the plaintiffs could have brought a separate “actio[n] for declaratory, injunctive, or mandamus relief against the Secretary” in federal district court. Id., at 227. This Court agreed with the government's assessment that the plaintiffs could have brought a claim like that—even as it went on to hold that they were free to bring a damages action under the Tucker Acts framework too. Ibid. Lower courts have appreciated all this as well. As they have observed, nothing in the Tucker Acts or our decisions applying them “impl[ies] that [Tribes] are not [separately] entitled to declaratory or injunctive relief ” under other laws Page Proof Pending Publication or treaties and the traditional framework described above. Cobell v. Norton, 240 F. 3d 1081, 1101 (CADC 2001); see also Loudner v. United States, 108 F. 3d 896, 899 (CA8 1997). Consistent with this approach, they have frequently allowed Tribes to bring freestanding claims seeking to enforce treaty obligations—including water-related ones. See, e. g., Pyra- mid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252, 256 (DC 1973) (requiring the Secretary of the Interior to “justify any diversion of water from the Tribe with preci- sion”); see also Northwest Sea Farms, Inc. v. United States Army Corps of Engineers, 931 F. Supp. 1515, 1520 (WD Wash. 1996) (“In carrying out its fduciary duty, it is the gov- ernment's . . . responsibility to ensure that Indian treaty rights are given full effect”). The cases the Court relies on simply do not enter the picture.

C After misreading the Navajo's request and applying the wrong analytical framework, the Court errs in one last way. Cite as: 599 U. S. 555 (2023) 597

Gorsuch, J., dissenting

It reaches the wrong result even under this Court's Tucker Acts framework. The second step of the analysis—using “trust principles” to sort out the damages the United States owes, Navajo II, 556 U. S., at 301—clearly has no purchase in this context. (Another tell that the Tucker Acts framework itself has no purchase.) But what about the frst step? His- torically, this Court's cases have distinguished between regu- latory schemes that create “bare trusts” (that cannot sustain actions for damages) and a “conventional” trust (that can make the government “liable in damages for breach” under the Tucker Acts). White Mountain Apache Tribe, 537 U. S., at 473–474; see ante, at 565–566. A close look at those deci- sions suggests that, even under them, the Tribe's claim should be allowed to proceed. Take Mitchell II as an example. There, this Court al- lowed a claim for money damages relating to the mismanage- ment of tribal forests. On what basis? A patchwork of statutes and regulations, along with some assorted represen- Page Proof Pending Publication tations by the Department of the Interior. 463 U. S., at 219– 224. In holding this showing suffcient to support an action for money damages, this Court observed that, “where the Federal Government takes on or has control” of property belonging to a Tribe, the necessary “fduciary relationship normally exists . . . even though nothing is said expressly” about “a trust or fduciary connection.” Id., at 225 (internal quotation marks omitted). Further, where the federal gov- ernment has “full responsibility” to manage a resource or “elaborate control” over that resource, the requisite “fdu- ciary relationship necessarily arises.” Id., at 224–225 (em- phasis added). Statements by the United States “recogniz- [ing]” a fduciary duty, the Court explained, can help confrm as much too. Id., at 224. Consider White Mountain Apache Tribe as well. There, this Court allowed a claim for money damages based on the United States' breach of its “fduciary duty to manage land and improvements” on a reservation. 537 U. S., at 468. The Tribe defended the right to bring that claim by pointing 598 ARIZONA v. NAVAJO NATION

Gorsuch, J., dissenting

to a statute declaring certain lands would be “ `held by the United States in trust' ” for the Tribe and allowing the Sec- retary of the Interior to use “ `any part' ” of those lands “ `for administrative or school purposes.' ” Id., at 469. In hold- ing that statute suffcient to support a claim for money dam- ages, this Court emphasized the United States exercised au- thority over the assets at issue and had considerable “discretionary authority” over their use. Id., at 475. Held even to these yardsticks, the Navajo's complaint eas- ily measures up. Our Winters decisions recognize that the United States holds reserved water rights “[a]s a fduciary” for the Tribes. Arizona II, 460 U. S., at 627–628 (emphasis added). The United States' control over adjacent water sources—including the Colorado River—is “elaborate.” Mitchell II. 463 U. S., at 225; see also Arizona I, 373 U. S., at 564–565; White Mountain Apache Tribe, 537 U. S., at 475. It can dole out water in parts of the Colorado by contract. 43 U. S. C. § 617d. And, of course, the United States has ex- Page Proof Pending Publication pressly acknowledged that it holds water rights “in trust” for the Navajo, see Brief for Federal Parties 37; Tr. of Oral Arg. 40, perhaps including rights in the Colorado River main- stream, id., at 33. Given these features, the Navajo's com- plaint more than suffces to state a claim for relief.

IV Where do the Navajo go from here? To date, their efforts to fnd out what water rights the United States holds for them have produced an experience familiar to any American who has spent time at the Department of Motor Vehicles. The Navajo have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another. To this day, the United States has never denied that the Navajo may have water rights in the mainstream of the Colorado River (and perhaps elsewhere) that it holds in trust for the Tribe. Instead, the government's constant refrain is that the Navajo Cite as: 599 U. S. 555 (2023) 599

Gorsuch, J., dissenting

can have all they ask for; they just need to go somewhere else and do something else frst. The Navajo have tried it all. They have written federal offcials. They have moved this Court to clarify the United States' responsibilities when representing them. They have sought to intervene directly in water-related litigation. And when all of those efforts were rebuffed, they brought a claim seeking to compel the United States to make good on its treaty obligations by providing an accounting of what water rights it holds on their behalf. At each turn, they have received the same answer: “Try again.” When this routine frst began in earnest, Elvis was still making his rounds on The Ed Sullivan Show. If there is any silver lining here it may be this. While the Court fnds the present complaint lacking because it un- derstands it as seeking “affrmative steps,” the Court does not pass on other potential pleadings the Tribe might offer, such as those alleging direct interference with their water Page Proof Pending Publication rights. Importantly, too, the Court recognizes that the Navajo “may be able to assert the interests they claim in water rights litigation, including by seeking to intervene in cases that affect their claimed interests.” Ante, at 568–569. After today, it is hard to see how this Court (or any court) could ever again fairly deny a request from the Navajo to intervene in litigation over the Colorado River or other water sources to which they might have a claim. Principles of estoppel, if nothing else, may have something to say about the United States' ability to oppose requests like that mov- ing forward. Cf. United States v. Louisiana, 394 U. S. 11, 73–74, n. 97 (1969). All of which leaves the Navajo in a fa- miliar spot. As they did at Bosque Redondo, they must again fght for themselves to secure their homeland and all that must necessarily come with it. Perhaps here, as there, some measure of justice will prevail in the end. Reporter’s Note

The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions Page Proof Pending Publication for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:

None