Page:Arizona v. Navajo Nation.pdf/38

Rh defendant is a fiduciary who has been entrusted with property of some kind belonging to the plaintiff,” even if the defendant is not “express[ly]” named a “trustee.” J. Eichengrun, Remedying the Remedy of Accounting, 60 Ind. L. J. 463, 468–469, and n. 18 (1985) (noting cases); see also A. Newman, G. Bogert, & G. Bogert, Law of Trusts and Trustees §967, p. 201 (3d ed. 2010) (“fiduciary relationship [is] sufficient to support an action for an accounting” whenever the fiduciary exercises “discretion over trust” assets).

With these principles in mind, return to the Navajo’s case and start with the most basic terms of the parties’ agreement. In signing the Treaty of 1868, the Navajo agreed to “relinquish all right to occupy any territory outside their reservation.” 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. 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,” “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 assumption 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 entitled to select tracts of land within the reservation to “commence 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 implements.” Art. VII, id., at 669. Similarly, the Treaty