Justice Gorsuch filed a dissent joined by Justices Sotomayor, Kagan, and Jackson. The dissent points out that all parties, and the Supreme Court, agree that the Nation has reserved water rights which the United States holds in trust. Applying traditional contract and treaty interpretation principles as well as the Indian Canons of Construction, Justice Gorsuch outlines that it logically follows the Nation should be permitted to bring a breach of trust claim against the United States for failing to provide an accurate accounting of the trust corpus (here the reserved water rights). In the dissent’s view, the United States’ duty arises from its fiduciary and treaty relationship with the Nation, regardless whether or not “water” is explicitly mentioned in the Treaty. The full text of the Supreme Court’s opinion can be found here: https://www.supremecourt.gov/opinions/22pdf/21-1484_aplc.pdf. Please contact Danielle Her Many Horses at dhermanyhorses@indiangaming.org with any questions or concerns with this Alert.
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