Ninth Circuit Restores Navajo Nation’s Water Rights Trust Breach Suit

Here is the opinion in Navajo Nation v. Dept. of the Interior. Briefs here.

An excerpt:

Moreover, neither Morongo nor Gros Ventre nor Jicarilla involved claims to vindicate Winters rights, which provide the foundation of the Nation’s claim here. Unlike the plaintiffs in those cases, the Nation, in pointing to its reserved water rights, has identified specific treaty, statutory, and regulatory provisions that impose fiduciary obligations on Federal Appellees—namely, those provisions of the Nation’s various treaties and related statutes and executive orders that establish the Navajo Reservation and, under the long-established Winters doctrine, give rise to implied water rights to make the reservation viable.

                      *. *  *

We hold in particular that, under Winters, Federal Appellees have a duty to protect the Nation’s water supply that arises, in part, from specific provisions in the 1868 Treaty that contemplated farming by the members of the Reservation.

Ninth Circuit Briefs in Navajo Nation Trust Breach Appeal re: Water Rights

Here are the briefs in Navajo Nation v. United States:


Lower court materials here.

Ninth Circuit Restores Navajo Nation Trust Breach Claim in Colorado River Water Rights Matter

Here is the opinion in Navajo Nation v. Dept. of the Interior.

An excerpt:

The panel held that the Nation’s breach of trust claim was not barred by sovereign immunity, and remanded to the district court to consider the claim on its merits. The panel held that the broad waiver of sovereign immunity found in § 702 of the Administrative Procedure Act (“APA”) waived sovereign immunity for all non-monetary claims, and § 704 of the APA’s final agency action requirement constrained only actions brought under the APA. The panel concluded that the Nation’s breach of trust claim sought relief other than money damages, and the waiver of sovereign immunity in § 702 applied squarely to the claim.

Lower court materials here.

Federal Circuit Affirms Dismissal of Klamath Claims Committee v. United States

Unpublished opinion here:


Briefs here.

Lower court materials here and here.

Federal Circuit Briefs in Klamath Claims Committee v. US — UPDATED 8-26-13


KCC Opening Brief

US Answer Brief

Klamath Tribe Amicus

KCC Reply Brief

Lower court materials here and here.

Klamath Claims Committee Trust Breach Suit Dismissed under Rule 19

Here are the materials in Klamath Claims Committee v. United States (Fed. Cl.):

CFC Order Dismissing Committee Complaint

KCC Complaint

KCC Rule 19 Brief

Klamath Tribes Amicus Brief

USA Rule 19 Brief

Eighth Circuit Rejects Effort to Move Trust Breach Claims to Court of Federal Claims

Here is today’s opinion (the third Indian law opinion from the CA8 this week!) in Bernard v. Dept. of Interior:

CA8 Opinion in Bernard v DOI

The briefs:

Bernard Opening Brief

Interior Appellee Brief

Bernard Reply


Maynard Bernard decided to develop some of the Indian trust land he owned on the Sisseton Wahpeton Reservation in a project planned with his cousin Grady Renville. Bernard and Renville consulted a Bureau of Indian Affairs (BIA) realty officer about how to proceed. She advised Bernard to sign a gift deed to convey the entire property to himself and Renville asjoint tenants with the right of survivorship.  The agency subsequently denied a request by Bernard and his wife Florine to set aside the deed. After an unsuccessful administrative appeal the Bernards brought an action in federal district court against the United States Department of the Interior (the Department) seeking review of the agency  decision and money damages for breach of trust. The Bernards later amended their complaint to eliminate the damage
claim and subsequently settled with Renville, who agreed to deed back some of the land. After the district court affirmed the administrative decision and dismissed the Bernards’ action, they moved to alter the judgment, seeking transfer of their damage claim to the Court of Federal Claims (CFC). The district court denied the motion, and the Bernards appeal. We affirm.


We recognize that the facts of this case are troubling. Apparently on her own initiative, the BIA realty officer advised Bernard to sign a gift deed conveying half of his interest in his entire property to Renville in a joint tenancy with the right of survivorship. In addition she told Bernard that this would be only a “temporary” arrangement based on Renville’s alleged oral assurances, and she permitted Bernard to waive appraisal of his land before the transfer. She also allowed Renville to fill out the gift deed application, apparently because Bernard’s eyesight was so bad he could not do it himself.

Federal Circuit Affirms (2-1) Dismissal of San Carlos Apache Trust Breach Case re: Gila River Water Rights

Here is the opinion in San Carlos Apache Tribe v. United States.

An excerpt from the majority:

The San Carlos Apache Tribe (“Tribe”) appeals from a decision of the United States Court of Federal Claims, which dismissed the Tribe’s monetary damages claim against the United States for an alleged breach of fiduciary duty relating to water rights in the Gila River. Because the Court of Federal Claims correctly granted the government’s motion to dismiss the Tribe’s claim for lack of jurisdiction, we affirm.

And from the dissent:

For decades the United States stood together with the San Carlos Apache Tribe, in federal and state court, pressing the position that the 1935 Globe Equity Decree did not finally determine the Tribe’s water rights in the Gila River. When the issue was resolved in 2006 in the Arizona Supreme Court, and the Tribe’s water rights were finally lost, the Tribe filed a claim for monetary damages in the Court of Federal Claims. In that court, for the first time, the United States took the position that the claim became time-barred six years after the Globe Equity Decree of 1935. The government now argues, and my colleagues now agree, that the Tribe was required to file this suit for the value of the lost water rights, before the water rights had been finally lost and before any claim for damages arose. The court holds that this Tucker Act claim became time-barred in 1941, although its premises did not arise until the Arizona Supreme Court finally resolved the water rights issue in 2006. Thus this court provides “yet another instance of the manifest injustice which has assailed the Tribe at virtually every turn since their dealings with the United States and its citizens began.” United States v. Gila Valley Irrigation Dist., 804 F. Supp. 1, 5 (D. Ariz. 1992). I respectfully dissent.