Arizona v. Navajo Nation

Brett Kavanaugh might have had a better shot at writing a reasonable decision if Arizona v. Navajo Nation revolved around beer rights instead of water rights, but instead the associate justice barfed up a garbled opinion about property rights.

A podcast where we dissect and analyze the Supreme Court cases that have flipped our civil liberties upside down, like the Alito family's American flag

0:00:00.0 Speaker 1: We will hear argument this morning incase 211484, Arizona versus the Navajo Nation and the consolidated case.

0:00:13.0 Leon: Hey, everyone, this is Leon from Prologue projects. On this episode of Five to Four, Peter, Rhiannon, and Michael are talking about Arizona v Navajo Nation. Water rights are hotly contested in the American southwest, which is in a 24 year mega drought. The Navajo Nation is part of the Colorado river watershed, making it one of the many contenders for the rivers scarce water. This case stems from a suit the nation brought to force the US government to advocate for the Navajo's right to a share of the water. But in a Five to Four decision, the Supreme Court held.

0:00:47.5 Speaker 3: You're on your own. That's the takeaway. After the US Supreme Court ruled the United States is not obligated to help secure the water supply for the Navajo Nation.

0:00:58.2 Leon: The court ruled that the treaty with the Navajo does not oblige the federal government to step in. Basically, Brett Kavanaugh did a find-on page for water and found that there were zero results. This is Five to Four, a podcast about how much the supreme Court sucks.

0:01:16.5 Peter: Welcome to Five to Four, where we dissect and analyze the supreme Court cases that have flipped our civil liberties upside down. Oh, the Alito family's American flag.

0:01:24.7 Rhiannon: Ooh.

0:01:24.9 Michael: Yep.

0:01:25.5 Rhiannon: Hey.

0:01:26.6 Peter: I'm Peter.

0:01:27.0 Rhiannon: Ooping and boopin'

0:01:28.2 Peter: I'm here with Rhiannon and Michael.

0:01:30.4 Michael: Hey, everybody.

0:01:31.6 Peter: Most predictable metaphor in all of Five-Four history.

0:01:36.7 Michael: Yep.

0:01:37.0 Peter: Of course, our recording last week just missed.

0:01:39.5 Michael: Yeah.

0:01:40.3 Peter: This, so we're coming a couple weeks behind the ball here.

0:01:43.9 Michael: Yeah.

0:01:44.6 Peter: But surely we cannot let this moment pass us by.

0:01:48.7 Rhiannon: No.

0:01:49.3 Peter: Without discussing on the podcast.

0:01:51.9 Michael: No.

0:01:52.9 Peter: That it has been revealed that shortly after January 6, Sam Alito's household was flying the American flag upside down, which signals an allegiance to the stop the steal conspiracy theory.

0:02:07.0 Rhiannon: Yep.

0:02:08.5 Michael: Right.

0:02:08.9 Rhiannon: Yeah.

0:02:09.0 Peter: Adhered to by...

0:02:09.6 Michael: 4Chan users everywhere.

0:02:13.2 Peter: Lowest morons in our society. Quickly after it was revealed that Sam Alito sold Bud light stock during the Bud light boycott. By far right conservative freaks.

0:02:25.9 Michael: Yeah.

0:02:26.0 Peter: Because Bud light had a single Instagram partnership with a trans person.

0:02:32.0 Michael: Yep.

0:02:32.5 Peter: Sam Alito was like, no, I'm a Coors guy now.

0:02:34.5 Michael: Yeah, bought Coors stock didn't just sell Bud stock.

0:02:37.0 Peter: Bought Coors stock. This has contributed basically nothing to our understanding of Sam Alito. Except that it confirms our suspicions that he is deep in the sauce.

0:02:52.4 Michael: Yes.

0:02:52.6 Peter: And I think we referred to him on the podcast as a Fox news guy.

0:03:00.4 Rhiannon: Yeah.

0:03:00.5 Peter: And I think it's pretty clear that that's wrong now that he's a news-max one America news guy.

0:03:03.5 Michael: Yeah.

0:03:03.6 Peter: Right?

0:03:04.4 Rhiannon: Uh huh. That's right. It's a step above, actually.

0:03:07.0 Michael: Yeah.

0:03:07.8 Rhiannon: Yeah.

0:03:08.8 Michael: Yeah. He's deeper than that shit.

0:03:09.5 Peter: Yeah.

0:03:09.7 Michael: I mean, this guy might be getting those places, get their cues from the darkest recesses of the Internet. And I would not be surprised if Sam Alito is too, like.

0:03:18.2 Peter: Right.

0:03:19.4 Michael: If he's poked around some pretty gnarly websites.

0:03:23.1 Rhiannon: I don't know. He's pretty old. He doesn't know how to use the Internet, you know?

0:03:27.5 Peter: Yeah, but he's looking for things to make him mad.

0:03:31.4 Rhiannon: Yeah, yeah, yeah.

0:03:33.3 Michael: Yeah exactly. And they can't tell the difference between reputable websites and not one.

0:03:39.5 Peter: Right.

0:03:39.6 Rhiannon: Right. Okay. Yes, yes. You know what I can see in my mind's eye is that he sees the stuff. He sees the headlines from these places, the posts, et cetera, on Facebook. Yeah. That's his intake, and that's how he gets connected from one website to another. And then all of a sudden, it's about people's skull sizes. Yeah.

0:03:57.8 Peter: Right, right.

0:04:00.4 Michael: I bet he's got a Twitter account or a Truth Social account.

0:04:01.3 Peter: I also think it's important to realize that social media has melted a lot of previously moderate brains. I used to work with a guy who was reasonably intelligent, very well read, knew a ton about history, but after 2020, I was making fun of him for being a Republican shortly after January 6, and he was like, well, yeah, I don't believe in a big conspiracy, but some of that video footage of the ballot handlers, who I don't know what they were. They were up to something. You know what I mean? They're all a little bit fucked in the head now.

0:04:35.1 Rhiannon: Yeah.

0:04:35.9 Peter: No one's safe. If you, if someone describes themselves as a Republican, they are unwell. They are unwell.

0:04:42.1 Rhiannon: Yes, yes.

0:04:42.8 Michael: Yeah.

0:04:43.4 Rhiannon: That's right.

0:04:44.5 Peter: All right, well, today's case, Arizona v Navajo Nation. This is a case from last year about water rights, specifically water rights for native tribes. I'm going to provide some quick background history here.

0:05:01.0 Rhiannon: Yeah.

0:05:01.1 Peter: Back in 1868, in the wake of the Mexican-American war, there were ongoing hostilities between the United States and the Navajo. And the United States set about on a campaign to force the Navajo into a reservation. They did this by engaging in a violent, scorched to earth campaign to starve them, destroying their crops and supplies, which worked, resulting in a Navajo surrender. After that, they eventually signe7d a treaty, the treaty of 1868, that confined them to a reservation, now the largest in the country. The crux of this case is that no one has ever assessed the water rights of the Navajo Nation, which is a problem because the American southwest is currently in a lengthy drought with minimal water access for the tribe.

0:05:50.3 Michael: In case you aren't aware of what water rights are, it's got to do with property rights and stuff, But the quick and dirty is just. It's about your ability to access and use water that runs through or is adjacent to your land and the limits on how you can use that water. Like, you can't just build a dam and damn the Colorado river because it runs through your property and everybody who's downstream of you. Tough shit. Right?

0:06:17.6 Peter: Right.

0:06:18.0 Michael: So that's what's at issue here.

0:06:20.5 Peter: Right. That's all that's happening. The Navajo are asking to clarify their water rights, and the supreme Court, in a five to four decision, said that the government has no obligation to provide them with access to water. Rhi, I'll let you give a little more color here.

0:06:40.9 Rhiannon: Yeah, it's that dark. And maybe our role today is just providing a little bit of detail to the darkness. So, Indian law. We've talked in other Indian law cases about tribal sovereignty, tribal rights. We've talked about treaties that govern the federal government's relationship to tribes. You know, congressional acts that have historically modified those relationships. This case has it all. Plus impending climate crisis.

0:07:10.5 Michael: Yep.

0:07:12.1 Rhiannon: Incredible stuff. So, let's go back in history a bit, because, yes, this case gets to the Supreme Court in 2023, but a lot of the case deals with the language in that treaty that Peter mentioned from 1868. Remember, by and large, the relationship between the United States and Indian tribes is governed legally by treaties. This is because, in a sort of general sense, the US government treats, or is supposed to treat tribes as separate sovereigns, they are separate countries from the United States. So, just the United States can sign a treaty with Canada or Brazil, the US signed treaties with Indian tribes that lay out what that relationship is, What agreements those two parties have come to that will define how they interact with one another. So the treaty that's at issue here, and it's not even that it's an issue, Navajo nation is just asking for some things to be defined and clarified, right? And the supreme Court is fucking it up. The treaty that's at issue here is the treaty of 1868, which, Peter said, also granted the Navajo people a permanent home on a reservation, which at the time was located in New Mexico Territory, but today it spans across parts of Arizona, New Mexico, and Utah.

0:08:28.2 Rhiannon: That treaty agreement was reached after decades of explicitly genocidal policy carried out on the Navajo by the US government and by western expansionist settlers. That was explicit policy of starvation forced displacement, ecocide, mass murder, Explicit colonization. The US saw itself openly as colonizing native people's land, This is back at a time where it wasn't unpopular to say, you're a colonizer.

0:09:00.3 Peter: Yeah. The people involved would be like, we're colonizing.

0:09:01.4 Rhiannon: Yes. Yeah, exactly. No, they would use the words. Yeah.

0:09:04.3 Peter: It was very helpful, I think.

0:09:06.0 Michael: Yeah.

0:09:06.7 Rhiannon: Yeah.

0:09:07.1 Peter: Because coming from an era now where colonizers have learned to use more creative language.

0:09:12.8 Michael: Yeah.

0:09:14.3 Rhiannon: That's right.

0:09:14.4 Michael: God, the darkness that.

0:09:15.0 Rhiannon: Yeah, yeah.

0:09:16.2 Michael: Encircled my heart when I was reading this language. Yeah. It's so grim.

0:09:20.6 Rhiannon: Yeah. Really explicitly violent on a mass level. On a mass scale. On purpose.

0:09:25.8 Michael: Yes.

0:09:27.0 Rhiannon: So, finally, following the Navajo nation's really consistent resistance to those genocidal policies. Yeah. This reservation was established for the Navajo in 1868, and in part, it guaranteed access and rights to water from the Colorado river for the nation's needs. I want to point out, before they were guaranteed a permanent home on this reservation, the Navajo nation had actually been displaced to a different area. That area had very little water, and the water that it had was more or less poisonous. So one of the reasons why this reservation in the treaty of 1868 was granted to the Navajo, in part, it was because of the water rights that would be guaranteed here, But what that access to water actually looks like, what the water rights are, has never really been established or defined legally. The US government has said that it holds water rights in trust for the Navajo, and we'll talk about what that means in just a second. The US government acknowledges that it exercises a huge amount of control over water rights in general from the Colorado river, because we're talking about the main fresh water source for several states that are always fighting about their own access and rights to the Colorado river.

0:10:47.5 Rhiannon: But still, what exactly the Navajo nation had rights to in terms of water was never defined. And in fact, the US government ignored or actively avoided answering that question for decades. Many, many interstate agreements were entered into. Many congressional acts were passed since the signing of the treaty in 1868, and they have defined who can use what and how from the Colorado river. There's been a ton of litigation by states and other actors about their own access to the Colorado river and how the federal government grants that access. The state of Arizona brought a case that in 1964, resulted in a federal decree that basically allocated between a bunch of parties access to the lower basin Colorado river. Including. Some of those parties included some other tribes, but not the Navajo. The Navajo asked repeatedly to be included in these decisions, and they were basically always ignored. So over and over and over again, until the Navajo Nation decided to file this lawsuit, Asking a federal court to force the US government to make an assessment about what the water needs are of Navajo nation, and then to make a plan to meet those needs based on the promise in that treaty from 1868, the promise that those reservation lands were given to the Navajo nation as a permanent homeland.

0:12:11.8 Rhiannon: So, in other words, what is Navajo Nation asking for in this lawsuit, which goes up to the Supreme Court? They're asking that the United States assess what water rights it holds in trust for the tribe. And they're asking for a plan that if it turns out that the US has misappropriated, used those water rights incorrectly, or withheld those water rights, the tribe wants the federal government to come up with a plan to set things right.

0:12:38.5 Peter: So let's talk about the law here. And I think to understand this case, you need to understand that there are two competing conceptions of what Indian treaties actually mean and what Indian reservations actually are here. The government, the federal government wants to treat the treaty as if it is a grant of property rights, meaning that the federal government gave the tribe a chunk of land and everything that comes with the land. But that's it. Its obligations essentially end there. The tribe, on the other hand, is arguing that the relationship is properly understood, as re-said, as a trust. The federal government holds this land and its assets in trust for the tribe, which means that they have a duty to fulfill the purposes of the treaty.

0:13:23.5 Rhiannon: Right.

0:13:24.3 Peter: Meaning a duty to make the reservation a place where people can actually live. So the idea of a trust is that you are holding an asset for someone else. You have a fiduciary obligation to that person or people. A classic example is if you are holding money in Trust for a child until they turn 18, That means you have obligations to act in good faith in handling that money on behalf of the child. Right?

0:13:53.0 Rhiannon: Right. Yeah.

0:13:54.6 Peter: So the principle here is that maybe the federal government has an obligation to handle the land in question in the interests of the tribe, Which would include providing them with access to water. Because you need water to live.

0:14:10.9 Rhiannon: Yeah. Period.

0:14:11.7 Peter: An important fact to remember as we move on through this opinion. Yeah. Yes. The court, with the majority, written by Brett Kavanaugh, embraces the property rights idea. They basically say, look, the treaty gave you this land, and that's really it. So if the land doesn't have easy access to water anymore, tough shit, right? He does a textual analysis. And since the treaty doesn't say anything specific about water, he's like, well, the federal government, therefore, has no obligation to affirmatively provide water access. The problem that Kavanaugh has here is that the court has held in the past that the federal government actually does have a trust relationship with the tribes.

0:14:55.4 Rhiannon: Yeah.

0:14:55.7 Peter: Which is exactly what the Navajo are arguing. Right? They didn't make this up. He says, quote, to be sure, this court's precedents have stated that the United States maintains a general trust relationship with Indian tribes, including the Navajos. But 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 assuming all the fiduciary duties of a private trustee. Creating a trust relationship that is limited or bare compared to a trust relationship between private parties at common law.

0:15:35.9 Rhiannon: Makes no sense.

0:15:37.6 Peter: If you're confused about what this means, that is probably because it doesn't actually mean anything at all.

0:15:42.7 Rhiannon: That's right.

0:15:44.3 Peter: The government and Kavanaugh are trying to have it both ways, They're saying, okay, yes, this is held in trust for the Navajo, this land. But it's a different trust. It's not the trust that you might have heard of before.

0:16:00.3 Rhiannon: Or is defined by law. Yeah. No, it's not that one.

0:16:00.6 Peter: This is a trust that doesn't actually mean anything or impose any obligations on anyone. So what trust is it then? He doesn't actually say, nor does he know, It's just the trust where the government does not have any obligations to the tribe, which is another way of saying that it's not really a trust at all. Exactly. I guess. Yeah. Exactly.

0:16:23.8 Michael: If you sort of unpack the argument, it's like, yeah, we're a sovereign, so we don't have to do anything we don't want. So we could enter into a trust relationship and then not fulfill our responsibilities under that trust relationship, and nobody can do anything about it because we're number one. That's the argument. And Kavanaugh's like, yes, that's correct. Makes sense. Yes.

0:16:46.9 Peter: Like, hey, Peter, you were supposed to hold my child's assets in a bank account in trust until he was 18. And you're telling me that you let it float down a river? And I'm like, yeah, that was your mistake. You misunderstood the trust that it was. It was a trust where I actually don't have to do anything and I can let his money float down a river in a briefcase.

0:17:09.8 Michael: Right. It's a special trust because I'm a special boy. Yeah.

0:17:13.0 Peter: Now, there's another problem here for Kavanaugh, which is that there's a certain canon of construction that applies to Indian treaties. A canon of construction just means a rule for interpreting the treaties that courts have used in the past. And the rule is that the treaties should be interpreted as the tribes at the time would have understood them, Yeah. Now, Kavanaugh basically ignores this in function. At least he says, well, the text doesn't say anything about water. So how could the tribes have understood it any other way?

0:17:44.5 Michael: Yeah. It's incredible.

0:17:44.6 Peter: He does this in the span of a paragraph at the end of the opinion. Yeah. Which is remarkable mostly because, as I imagine everyone learned in undergrad, tribes had a very different conception of property than the American government and then Europeans in general. Right? Right. They didn't really conceive of property rights per se. Their relationship with land was completely different than ours. But instead of reckoning with that, Kavanaugh just applies modern textualism and is like, well, it doesn't mention water, so that's that.

0:18:16.3 Michael: Right, right. His effort to understand how the tribe would have understood the language is to just be like, I don't know. I don't see any water.

0:18:27.0 Rhiannon: I don't know. And I don't care.

0:18:28.0 Michael: It doesn't look water to me, that's it. Gorsuch has a 10 page history explaining why water would be very tied into their understanding of this. And Kavanaugh's just like, well, I don't know. I don't see the word water.

0:18:41.7 Rhiannon: Yeah, and there's no contention whatsoever from Justice Kavanaugh about why that canon of construction is even there. Why there would be a general rule created by judges and courts over the years that treaties should be interpreted as the tribes at the time would have understood them. Gorsuch goes into this later, but there's a reason why that rule exists. The reason being that you have to recognize the power imbalance between the US government negotiating with tribes. At the time that these treaties were being drawn up, number one. Number two, you have to recognize that there were factually language barriers to these treaties being drafted. Legal understandings, conceptions of land, property ownership, what it means to have a homeland, what it means to live somewhere that were completely different between the two parties, and then on top of that also being mistranslated. There are a ton of reasons why.

0:19:46.7 Peter: Everyone sort of treats this as a matter of contract. Contract between the Navajo and the federal government. Even Gorsuch in his dissent, which I think we all agree is quite good. He treats this as a matter of contract. There's a concept in contract law called duress. Now, if I am like, Hey, sign this contract to give me $25,000, and you're like, no. And then I'm like, oh, I know how I'm gonna make this happen. I put a gun to your head.

0:20:12.9 Rhiannon: That's right.

0:20:13.5 Peter: And I say, now sign it. And then you sign it. And then later in court, I'm like, your honor, he signed it. Believe it or not, that's not enforceable.

0:20:22.8 Rhiannon: Yeah, exactly.

0:20:23.6 Peter: 'Cause he can raise a defense called duress. I was under duress. Apparently, that applies to individual contracts but not when we are beating a people into submission with forcible starvation, I guess. And all of the fucking treaties were assigned with the tribes under duress.

0:20:43.8 Rhiannon: Absolutely.

0:20:45.4 Peter: And no one is willing to engage in like, well actually maybe.

0:20:48.7 Michael: Maybe contract law isn't the right framework.

0:20:50.5 Rhiannon: Exactly.

0:20:51.0 Peter: Yeah. Maybe we need a different way to analyze these, huh? And all of this sort of segues into a part of the opinion that is sort of glaring to me, which is that it's written by Brett Kavanaugh.


0:21:05.9 Peter: There could be nothing more emblematic of the ideology that this opinion embraces than the fact that this issue involving complex history, cultural and political differences, we got this fucking frat boy moron to handle it. You know what I mean? And the opinion itself and the sort of dialogue between the majority and the dissent, it goes as you would expect a debate between a scholar and a frat boy to go. You know what I mean?

0:21:32.4 Michael: Yes.

0:21:33.5 Rhiannon: Yeah.

0:21:34.7 Peter: The majority opinion has a sort of belligerence to it, and it's unwillingness to care about, or even contemplate the history, the cultural context. The opening line of the opinion is, and I quote, "In 1848, the United States won the Mexican-American war and acquired vast new territory from what would become the American West." So right off the bat being like, first of all, we won this land fair and square. I wanna get that straight. I wanna get that straight.

0:22:02.3 Rhiannon: We colonized the land, don't you see? We colonize the land. It's ours.

0:22:06.8 Peter: First of all, scoreboard. All right, we won.

0:22:09.1 Rhiannon: Yeah.

0:22:09.8 Michael: Yeah.

0:22:10.2 Peter: Then there are also these little obnoxious things throughout. He says that the treaty established a large reservation for the Navajo. Now, it's a large reservation now, but when it was established as Gorsuch mentions in his dissent, it was actually considerably smaller per capita than contemporary reservation. So like, just to call it a large reservation for no reason, other than to make it seem this was all on the up and up.

0:22:36.4 Rhiannon: Yeah. Yeah. And they got a good deal, so why are they complaining? Yeah.

0:22:39.4 Peter: Right. Just this perfect little Kavanaugh touch, 'cause it's a minor detail in terms of the case, but it speaks to his whole worldview here.

0:22:47.1 Rhiannon: Exactly. Yeah. Yeah. Totally.

0:22:49.1 Michael: Yeah. Another annoying little detail that bugged me every time I've read this is he says in the treaty, the Navajo promised to make the reservation their permanent home. Which is like, if you read the Gorsuch dissent, he very much frames it as the permanent home phrase is a promise from the government that this will be a habitable place you can live forever. And Kav is reframing it as they promised they would stop bitching and settle down already. Just totally inverting it. It's so fucking dishonest.

0:23:31.5 Michael: What's very honest, on the other hand is Clarence Thomas's concurrence, and I appreciate it. Thomas is just like, look man, fuck this trust shit. And he is we've said the government has special responsibilities and trust relationship and we just shouldn't. I don't think we should. I don't it. We should do away with it. And specifically, he mentions this canon of construction Peter mentioned. So the canons of construction are just basically rules for how to interpret statutes, treaties, the constitution, et cetera, that are developed by courts. They start really, a judge writes something in opinion and then other judges it and they cite it, and it becomes popular enough that the court is just like, that's canon now. That's how you think about this. That's how you think about items in a series, in a statute.

0:24:25.1 Peter: That's in a new hope.

0:24:27.6 Michael: Yes.

0:24:27.7 Peter: That's canon.

0:24:29.2 Michael: That's canon, that's canon, right. So he is this Indian canon that you have to interpret treaties the way an average tribe member would have understood them. He's like, fuck that. Why would we do that?

0:24:43.0 Rhiannon: Yeah. Why do we keep saying we're doing that?

0:24:45.5 Michael: Yeah. Which is incredible, because it's, when you think about it we'll talk about Gorsuch, he explains, there are a lot of very good reasons to do this that are rooted in contract law, but also, if you are a textualist, the rule of thumb is like, oh, how the text would read to the average American. And if you're an originalist, it's how the constitution would read to the average American at the time it was drafted. And so this is very much just how the treaty would read to the average Navajo at the time it was drafted, which makes perfect sense. It's just... So for him to be like, let's get rid of that. Fuck that. It's so wild. It's so...

0:25:36.6 Peter: But you mentioned, there's an honesty to it because...

0:25:37.1 Michael: Yeah. He's just like, fuck this.

0:25:38.7 Peter: Kavanaugh is just like, oh no, it's a trust, but it's not normal trust. This is a crazy trust. And Thomas is just like, who the fuck are we kidding?

0:25:48.8 Rhiannon: Yeah. Stop saying this.

0:25:51.1 Peter: You're full of shit. You don't wanna give the Navajo anything, me neither. Let's just do it straight up.

0:25:57.6 Rhiannon: Exactly. Yeah. So that brings us to the dissent. There is a dissent here. In terms of Supreme Court dissent, this is a pretty powerful one. So the case is five to four, because Gorsuch is writing this dissent and is joined by the three liberal justices here. We've talked on the podcast before when we are talking about Indian law cases, that Gorsuch is probably the most expert on federal Indian law of any of the justices. We're not saying by any means that Gorsuch is a good justice that he actually gives a shit about anybody that's a different race or gender or anything from him, but he knows the history of federal Indian law. And I think he just takes that history and takes the text of these treaties, these acts of congress, all of that. He really does look at it in a more holistic way than anybody else on the court does.

0:26:55.1 Peter: Yeah. He's interested in it, which is more than you can say for... I think literally, everyone else who's been on the court for the last 50 years.

0:27:02.8 Rhiannon: Exactly. Exactly. And so he's interested in it. He knows the history and so when he looks at the text of a treaty for example, to him, it's like, no, this should be meaningful. I'm not just gonna toss this away. We should give meaning to these words here.

0:27:18.1 Michael: Yeah, and I think the key thing to understand about Gorsuch is that he's a self-righteous prick. And I choose those words actually very carefully. He is extremely self-righteous, and sort of is just like, yeah, what we think is right is right and we rule how we rule, and we let the chips fall where they may, and we don't really worry too much about the consequences, because we are righteous. And that's very bad when it's like, well, let's just undo the new deal and totally level the administrative state. But on the rare case, when it's something he's right about, it's pretty great, 'cause he is like, look, the treaty, we've made promises, and I don't care if it's politically inconvenient to hold the United States to its promises. We made promises, so we gotta hold to them and that's it, you know?

0:28:12.0 Rhiannon: Yeah, exactly. And there were reasons for making the promise the way we did and so that's it. He lays it out really, really clearly in the beginning of his dissent. And so I just wanna read almost the first paragraph. He says, "The Treaty of 1868 promises the Navajo a permanent home. That promise, read in conjunction with other provisions in the treaty, the history surrounding its enactment, and background principles of the Indian law secures for the Navajo some measure of water rights. Yet even today, the extent of those water rights remains un-adjudicated and therefore unknown. What is known is that the United States holds some of the tribes 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 asked the United States to fulfill part of that duty by assessing what water rights it holds for them. The government owes the tribe at least that much." Just pretty clear, right? It's not about social justice to Gorsuch, it's just like, this is what the lawsuit is, you know?

0:29:28.5 Peter: Yeah. He's still with tribal rights, 'cause I think people really get baffled by this. And I think part of it is just like, this is his ideology. He cares about the tribes. And then maybe that's the simplest way to look at it, but he's a doctrinalist. He becomes hooked on the idea that a certain doctrine, a certain interpretation of the law is correct. And he's become interested in this, and there's actually no really strong countervailing theory of tribal law other than like, you should probably recognize the treaties. The project of the federal government has been to just sort of steadily unravel the treaties over the course of 150 years. And Gorsuch is just looking at that being like, what the fuck? Like, they're treaties, right? We should treat them anything else, and there's honestly no counterargument to that, so...

0:30:19.5 Rhiannon: Exactly.

0:30:19.6 Peter: He remains self-righteous in this regard.

0:30:21.0 Rhiannon: Yeah. Yeah. And just to delve in a little bit into his approach on the case here, as opposed to Kavanaugh who's saying, this is a contractual relationship where the US government has already given whatever it was supposed to give, basically, the land itself, literally, and there's no affirmative duty for the US government to do anything other than that. Gorsuch also treats this relationship as contractual, but goes into what some real contractual obligations would be. If it was actually a full-throated contract that actually put obligations, if it was actually a real trust legally, that gave the United States a fiduciary duty to the tribe. So he says plainly, a treaty, a treaty with Indian tribes, a treaty is a contract between two sovereign nations. But then he goes into, I mentioned before, we have to note historically the power imbalance that was at play when that treaty was drawn up, or if you wanna look at it this way, when that contract was entered into.

0:31:24.1 Rhiannon: Peter said, basically, every tribe that entered into a treaty with the United States government was under duress. Every tribe had suffered decades of explicit genocidal policy. And so you have to take that into account when interpreting these contracts, I.e. These treaties. When you're interpreting it to decide what the obligations are for the US government, for the tribes, it has to be interpreted in favor of recognizing those full obligations. The fact that it's a treaty, creating a fiduciary relationship according to Gorsuch means there's a duty at the very least to account for what those obligations are. Brett Kavanaugh in the majority is just saying, It's a trust, but it's not a real one. This is a contract, and it's over. And Gorsuch is saying, no, this is a contract that at the very least creates a duty to say what the obligations are. And then getting even more specific, if you are reading the treaty as a contract in this way, he says granting a "permanent home" necessarily implies certain benefits for the tribe, including obviously water, or at least a clear definition of what those water benefits are.

0:32:43.6 Peter: Can we pause on that?


0:32:43.7 Michael: Yeah.

0:32:46.4 Peter: So Kavanaugh is trying to do this textualist analysis of the treaty, and it's basically like, it doesn't say anything about water. And Neil Gorsuch is being like, well, yeah, but come on. It says that this will be their permanent home which surely implies...

0:33:05.8 Michael: That it's habitable.

0:33:07.2 Peter: It will be habitable. There has to be some implication that the land is a land that you could build on, where you could raise your children. All of the things that you need for a society to function.

0:33:23.7 Michael: This treaty was entered into, because the prior reservation was not habitable.

0:33:28.7 Rhiannon: Exactly.

0:33:29.2 Peter: And this was an effort to make that right to find a place for them, where they could actually settle and live and have agriculture and all that. So like, yes, the problem being solved here was that they had been driven to arid land without water, and we're like, if you don't fix this, we're just gonna fucking leave.

0:33:51.4 Peter: And if a contract says, I will provide you with a home, is it really anti-textualist to be like, well, that should include water. If we were to have a dispute, and in the dispute, I was like, all right, let's resolve this. I will give you a home. And then you show up and it's a barren patch of dry land, and I'm running away as fast as I can, would you be like, well, he got me fair and square on the contract.

0:34:22.3 Michael: Yeah.


0:34:22.4 Rhiannon: Yeah, exactly.

0:34:23.8 Peter: No, you'd be like, that's not what the fucking contract said. It said a home.

0:34:27.1 Rhiannon: Exactly.

0:34:27.7 Peter: It's not a home.

0:34:27.8 Rhiannon: Yeah. Gorsuch says it explicitly, and I do wanna continue to recognize that the framework of approaching this as if it is contract law is problematic, right? There are limitations which we'll talk about in a minute, but Gorsuch says, approaching this as a contract. "As both parties surely would have recognized, no people can make a permanent home without the ability to draw on adequate water, otherwise the tribe's land would be practically valueless, defeating the declared purpose of the treaty." Okay. Maybe it doesn't say water rights specifically in this contract, there's other language that absolutely implies rights and access to water. The Treaty of 1868 refers to the tribe's ability to build structures where water access may be convenient. The treaty refers to farming, cultivation of the land, a relationship to land that absolutely necessarily implies access to water and water rights.

0:35:27.9 Michael: I honestly think this dissent could have been a little bit snarkier, and I would've appreciated an entire page or two describing how the human body needs water.

0:35:36.6 Rhiannon: Yeah. Yeah. And so I think that brings me to wrapping up what Gorsuch's stance is, the Gorsuch dissent substantively. I think that brings me to the beef I have with all of the decisions as they're written here, whether it's the majority or the concurrence or the dissent in that limitation or that framework of contract law, right? When we're talking about tribal rights, we're actually talking about sovereignty. What does sovereignty mean? What does it mean to be a separate sovereign from the United States? And so even when you're like, okay, water rights are held in trust by the United States, and the United States should fulfill its fiduciary duty to make sure to grant water rights to the Navajo nation, even that implies subjugation of the tribe, continued subjugation into 2024 of another people that is supposed to be a separate sovereign. And so, yeah, just wanna point out the limitations of the contract approach, but also put that in a context of even when the decision comes down "good" for an Indian tribe at the Supreme Court, it is always a continuation of this legal subjugation.

0:37:05.2 Peter: There's also another theme running through this decision that we haven't really talked about, and that is climate, because when you're talking about the drought in the American southwest that Kavanaugh acknowledges is going to get worse, it seems you should have to talk about the climate crisis. And yet, if you control that, all of the opinions for the word climate, it does not appear once.

0:37:34.6 Michael: Nope.

0:37:35.5 Rhiannon: No.

0:37:36.3 Rhiannon: Which is perhaps why this Gorsuch opinion as good as it is, feels a little bit insufficient, because are we not talking about the fact that our climate is going to, in many material ways get worse, create pockets of dangerous uninhabitable land throughout the country, throughout the world, and that we will need perhaps a system for addressing that? That feels this overarching theme, and yet the court is just nowhere to be found other than I suppose, the implication that the federal government doesn't have to do shit about it.

0:38:13.0 Michael: Yeah. I actually think there's some hints that that's what's motivating the conservatives here, is that they actually do believe in climate change and global warming, and know it's coming and do not want to put the American government on the hook for ensuring that these reservations remain habitable while the climate changes. There's a paragraph where Kavanaugh says, much of the Western United States has aired 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 1200 years, and the situation is expected to grow more severe in future years. And then in the next paragraph, he talks about all this money the government has spent on getting water into the Navajo reservation already. And it's hard not to read those two things one after the other and be like, look, we can't just obligate ourselves to billions of dollars of water here. And if we did obligate ourselves 150 years ago, well we don't want to enforce that. [laughter]

0:39:31.2 Rhiannon: Right. Definitely not.

0:39:31.3 Michael: That's really what's motivating this year, but they don't wanna say that, but it is sort of like, they give it away a little bit.

0:39:37.3 Rhiannon: I think it's also about prioritizing "American" or the state's rights access to water, again in a continuation of the subjugation of indigenous people, right?

0:39:49.2 Michael: Oh, absolutely.

0:39:50.4 Rhiannon: So this case is Arizona v Navajo Nation. That's because the state of Arizona is in litigation about what its water rights are in the Colorado River Basin, because the state of Arizona is in an impending looming water crisis, right? So not mentioning it at all is a complete erasure of why these cases are even at the court. Why this is an important issue right now, and how the Supreme Court here is prioritizing water rights, environmental rights at all, if we can call it that for "Americans" and US states over Indian tribes.

0:40:33.0 Rhiannon: And I use those words Americans and US states purposely here, because what I'm saying is that Brett Kavanaugh, to the extent that he recognizes this separate sovereign idea that federal Indian tribes are to some extent separate countries from the United States. It's in service of this idea that, okay, you're a different country. We gave you the land already in the contract, and so if there's a prioritization that has to happen environmentally in terms of water access, that's gonna go to "real Americans", US states, right? But that's the only way in Kavanaugh's mind, in the conservatives mind, well, not Neil Gorsuch, but in the conservatives who are on the majority here, that's the only way they'll actually recognize this sort of separate sovereign is to say, well, you're different and separate legally, and so that means your legal subjugation.

0:41:27.8 Michael: Yeah. I might describe it as America first in many respects.


0:41:35.7 Michael: I think you could think of it as embodying in an America first ethos. Maybe Google that kids.

0:41:44.9 Peter: I admit that when I saw that Thomas had concurred, I thought he was just gonna be like, I agree with everything except for that one line where you said that the drought's gonna get worse.


0:41:58.5 Peter: I guess the last thing I'll say about this is that the policy of the government in the 1860s was to starve the tribes into assimilation or their own destruction. That is no longer the express policy of the United States government, but you'd be hard-pressed to figure that out if you were just looking at it, you know what I mean?

0:42:24.3 Rhiannon: Yep.

0:42:25.2 Peter: The functional policies have not changed very drastically, and I don't think that's a real coincidence. I think that this is one of those areas where the precedent builds on itself. The courts were abusing the rights of the tribes for generations, and that gets carried forward even to today when the justices might by and large view themselves as more enlightened than the justices of the past, but you see their ideology very clearly reflected in modern opinions.

0:43:03.1 Peter: All right. Next week, we are doing a premium episode about. Sam Alito, but specifically the ongoing saga of the various bizarre flags being flown by the Alito family, and what it says about Sam and his wife, and Democrats and the media should be a good one. Subscribe to our Patreon, all spelled out for access to premium episodes that one, special events, our Slack, all sorts of shit. Follow us on social media @fivefourpod. We'll see you next week.

0:43:44.3 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial relations.

0:44:12.6 Michael: So turned our civil liberties upside down, like...

0:44:16.8 Peter: Well, obviously that's what I'm doing, so shut up.


0:44:24.0 Michael: Yeah.

0:44:27.1 Peter: Yeah. We can Easter egg that.