WSP08807

• File Number: 8220.106
• Description: Animas-La Plata
• State: CO
• Basin: San Juan/Dolores
• Water Division: 7
• Date: 10/26/1990
• Author: Judith Jacobsen
• Title: The Navajo Indian Irrigation Project and Quantification of Navajo Winters Rights
• Water Supply Pro - Doc Type: Report/Study

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the treaty."so In so holding, the Court did not require an "express declaration," or

explicit statutory language, to find intent, instead allowing reliance on "clear and
reliable evidence in the legislative history.',Sl

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That Congress must clearly and plainly intend to do something that compromises

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Indian property rights derives from what Felix Cohen has called "one of the primary

cornerstones of Indian law," the trust responsibility.52 The roots of the trust

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responsibility lie in Chief Justice John Marshall's opinion in Cherokee Nation v.

Georgia, 53 in which he called Indian tribes "domestic dependent nations ... in a state

of pupilage" to the United States. He went on to say specifically that this "relation to

the United States resembles that of a ward to his guardian:'54 Thus the federal

government owes Indian tribes a duty to act as a fiduciary or trustee--in their best

interests and in good faith. 55

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SOIllim, 476 U.S. 734 at 739-40. See also C, Wilkinson and 1. Volkman, "Judicial
Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows Upon
the Earth"--How Long a Time is That?" 63 Calif. L Rev. 601 at 627-630 and 645.659
(975).

slDion, 476 U.S. 734 at 739, citing F. Cohen, ~ note 4 at 223.

52~ F. Cohen, ~ note 4 at 221.

53 Cherokee Nation v. Georgia 30 U.S. (5 Pet.) 1 (1831).

5430 U.S. (5 Pet.) 1 at 17. See also Wilkinson and Volkman, ~ note 50 at 612-
617.

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SSIn Seminole Nation v. United States, 316 U.S. 286 (1942), the Supreme Court
spoke of "the obligation of trust incumbent upon the Government in its dealings with
these dependent and sometimes exploited people." The Court wrote, "In carrying out its
treaty obligations with the Indian tribes, the Government is something more than a mere
contracting party, Under a humane and self-imposed policy which has found expression
in many acts of Congress and numerous decisions of this Court, it has charged itself with