Courts

Clarence Thomas Just Wrote The Dumbest Paragraph In The History Of Indian Law

Neil Gorsuch is getting sick and tired of the Supreme Court screwing over Indians, but at least the majority ignored Clarence Thomas.

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(Photo by Win McNamee/Getty Images)

The bad guys dam up the river to keep the good guys from having any water. It’s a familiar plot in old Westerns generally, but it’s a very salient modern plot point for the Navajo. According to the treaty it entered with the federal government, the Navajo are supposed to have water rights and contend that those rights have been compromised. The Tribe asked for an assessment of those rights. In this morning’s opinion, beer loving justice Brett Kavanaugh channeled his inner Dos Equis pitchman and told them “Stay Thirsty, My Friends.”

But as bad as the opinion is — and Justice Gorsuch eviscerates it in dissent — it isn’t nearly as stupid as the concurrence.

Fresh off making a mockery of Originalism in the qui tam case, Clarence Thomas takes an unintentional swipe at textualism. Concurring to complain about the mere existence of the trust doctrine:

At the outset, it should be noted that our precedents’ “trust” language can be understood in two different ways. In one sense, the term “trust” could refer merely to the trust that Indians have placed in the Federal Government. If that is all this language means, then I have no objection. Many citizens (and foreign nations) trust the Federal Government to do the right thing. Determining how to do right by the competing interests of the country’s millions of citizens, however, is generally a job for the political branches, not courts.

No, it fucking can’t.

There isn’t a lengthy and developed doctrine based on the idea that Indians “trust” the federal government. This is as facially stupid as writing “when it comes to the Second Amendment, ‘arms’ can be understood in two ways and if it refers merely to not severing limbs, then I have no objection.” The term “trust” in this context is obviously and, frankly, uncontroversially invoking the legal concept where one party contractually signed over something in exchange for a bundle of obligations.

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That’s what the treaties mean. And, sure, the United States never really intended to deliver on its treaty obligations, but they are what they are — the basis of a fiduciary relationship where the federal government owes the Navajo in return for taking their land. It’s not identical to a private trust relationship, but the obligation under the treaty is akin to a trust relationship — and the law surrounding the treaty should be viewed through that lens. Thomas takes “not identical” and pushes it to “maybe they just meant they were really confident in the federal government!”

If you thought Sam Alito’s bid earlier this week to replace statutory definitions with Webster’s was bad, Thomas responded with “hold my Dos Equis.”

While “a trust by any other name” nonsense makes for the worst paragraph, it only narrowly edges out Thomas’s later conclusion that the fact that the federal government has cited the trust doctrine as a basis to screw over Indians in the past means that there just can’t be any trust doctrine:

Accordingly, it is difficult to see how such a plenary power could be rooted in a trust relationship with Indians. And it seems at least slightly incongruous to use Indians’ trust in the Government as both the basis for a power that can restrict tribal rights and canons of interpretation that favor Indians.

Again… it’s “slightly incongruous to use Indians’ trust in the Government” because the word “trust” does not mean “we believe in you!” here. There isn’t a whole lot of that kind of “trust” in the government what with the whole “cultural genocide” thing and all. As for the idea of the legal “trust” being used to restrict rights, that is also incongruous since the fiduciary shouldn’t be hurting the beneficiary, but these examples are instances of the courts being wrong rather than an argument for the rights never existing at all.

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The influence of the “trust relationship” idea on these doctrinal areas is troubling, as the trust relationship appears to lack any real support in our constitutional system. The text of the Constitution (which mentions Indians only in the contexts of commerce and apportionment) is completely silent on any such trust relationship.

Yes, because it arose from treaties entered after the Constitution. There’s no mention of NATO in the Constitution either but that doesn’t mean it doesn’t exist. Thomas throws in asides about how some treaties included explicit language about protection and others did not. But that’s just cherry-picking gibberish since these treaties were entered after the Supreme Court had already established in 1831 that treaties with Indian nations should be interpreted through the lens of a trust.

Unsurprisingly, Gorsuch is pretty peeved about the Court’s opinion, but does seem to call out the egregious Thomas opinion and credit the Court for staying on the happy side of complete nonsense…

If there is any silver lining here it may be this. While the Court finds the present complaint lacking because it understands it as seeking “affirmative steps,” the Court does not pass on other potential pleadings the Tribe might offer, such as those alleging direct interference with their water rights. Importantly, too, the Court recognizes that the Navajo “may be able to assert the interests they claim in water rights litigation, including by seeking to intervene in cases that affect their claimed interests.”… After today, it is hard to see how this Court (or any court) could ever again fairly deny a request from the Navajo to intervene in litigation over the Colorado River or other water sources to which they might have a claim. Principles of estoppel, if nothing else, may have something to say about the United States’ ability to oppose requests like that moving forward. All of which leaves the Navajo in a familiar spot. As they did at Bosque Redondo, they must again fight for themselves to secure their homeland and all that must necessarily come with it. Perhaps here, as there, some measure of justice will prevail in the end.

Gorsuch is putting a lot of…

… dare I say?

“Trust” in his colleagues here.

Navajo

Earlier: Sam Alito Laments It’s Getting So You Can’t Take All-Expense Paid Luxury Vacations Funded By Billionaires Anymore

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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