Page:Arizona v. Navajo Nation.pdf/41

20 cannot lawfully divert them elsewhere—just as a lawyer cannot 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.

The Court does not dispute most of this. It agrees that the Navajo enjoy “water rights implicitly reserved to accomplish the purpose of the reservation.” It agrees that the United States cannot lawfully interfere with those water rights. ,, . And it leaves open the possibility that the Navajo “may be able to assert the interests they claim in water rights litigation.” 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 “affirmative duty” to the Navajo with respect to water, and therefore does not need to take any “affirmative steps” to help the Tribe on that score. , . This reasoning reflects three errors.

The Court begins by misapprehending the nature of the Navajo’s complaint. Though it never quite cashes out what the phrase “affirmative steps” means, the Court appears concerned that allowing this complaint to proceed could result in a court order requiring the United States to “buil[d] pipelines, pumps, wells, or other water infrastructure.”, ,. More than that, the Court worries that—if a lower court finds that the United States has any water-related responsibilities to the Tribe—the federal government might even eventually find itself on the hook to “farm land, mine minerals, harvest timber, build roads, or construct bridges on the reservation.” ; see also.