Hopi Tribe v. United States

Hopi Tribe v. United States
782 F.3d 662 (Fed. Cir. 2015)
Authored by Anna Lindrooth

Statement of Facts: The Hopi Tribe is a federally recognized tribe and occupies an Indian reservation in northeastern Arizona. The Executive Order of 1882 established the reservation. Congress ratified the Executive Order in the Act of July 22, 1958, which declared that the reservation lands were “to be held by the United States in trust for the Hopi Indians[.]” Act of July 22, 1958, Pub. L. No. 85-547 (72 Stat. 403).

The reservation’s public water system depends on a system of wells which draw water from subsurface layers of water-bearing rock. The wells serving five communities on the eastern side of the reservation—Mishongnovi, Polacca, Sipaulovi, Shungopavi, and Keams Canyon—contain unsafe arsenic levels exceeding the federally allowed maximum. The Government provided funding and technical assistance for the construction of many of the affected wells. The Department of the Interior, Bureau of Indian Affairs (“BIA”) currently manage the Keams Canyon wells. The Tribe owns and operates the other four communities’ wells.

Procedural History: The Hopi Tribe filed a complaint against the United States in the Court of Federal Claims seeking damages for the cost of providing alternative drinking water sources. The Court of Federal Claims dismissed the complaint for lack of jurisdiction under the Indian Tucker Act, 28 U.S.C. § 1505 and denied the Tribe’s request for jurisdictional discovery. The Tribe appealed to the Federal Circuit.

Question Presented: Whether the United States owed a fiduciary duty to the Hopi Tribe to ensure adequate drinking water quality on the reservation.

Holding: The United States did not owe a fiduciary duty to the Tribe to provide adequate drinking water. Therefore, the Tribe’s claim failed for lack of jurisdiction under the Indian Tucker Act and the Court of Federal Claims’ dismissal was affirmed.

Reasoning: The doctrine of sovereign immunity limits the Court of Federal Claims’ jurisdiction over claims against the United States. However, the United States waived sovereign immunity under the Indian Tucker Act, 28 U.S.C. § 1505, which grants jurisdiction to the Court of Federal Claims over certain claims Indian tribes bring against the United States.

The Indian Tucker Act does not itself create any substantive rights. Rather, the Indian tribe must assert a claim rising out of a substantive source of law, such as “the Constitution, or any Act of Congress, or any regulation of an executive department.” 28 U.S.C. § 1491. Furthermore, the claim must be “one for money damages against the United States . . . and the claimant must demonstrate that the source of substantive law he relies upon can fairly be interpreted as mandating compensation by the Federal Government for damages sustained.” United States v. Mitchell, 463 U.S. 206, 216-217 (1983) (Mitchell II). Accordingly, claims under the Indian Tucker Act are analyzed under a two-part test to determine jurisdiction: the claimant must (1) identify a substantive source of law that establishes a specific duty and (2) show that the government’s breach of the duty mandates compensation. See White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 147-48 (1980); United States v. Navajo Nation, 556 U.S. 287, 290 (2009) (Navajo II).

The Hopi Tribe claimed that the United States had a fiduciary duty to ensure adequate drinking water on the Hopi reservation. The Tribe stated that the Executive Order of 1882 and the Act of 1958, as well as other provisions authorizing agencies to promote safe drinking water on Indian reservations, establish this fiduciary duty and satisfy the first step of the Indian Tucker Act.

The Executive Order of 1882 and the Act of 1958 do not constitute the kind of substantive law contemplated by the Indian Tucker Act. Neither the Order of 1882 nor the Act of 1958 refers to drinking water. At the most, the trust language contained in the Act of 1958 grants the United States the power to exclude others from diverting or contaminating reservation water. This duty does not include a responsibility to provide water treatment and infrastructure. See United States v. Mitchell, 445 U.S. 535, 541-42 (1980) (Mitchell I) (finding that “bare” trust language is not enough to establish a fiduciary duty to manage land resources).

The Tribe’s other cited provisions, including the Indian Health Improvement Act, 25 U.S.C. § 1632(a)(5), and the Indian Sanitation Facilities Act, 42 U.S.C. § 2004a(a)(1), likewise do not establish a specific fiduciary duty. Rather, these statutory provisions simply authorize the BIA and Indian Health Services to construct and maintain water supplies and facilities. See, e.g., 25 U.S.C. § 1632(b); 42 U.S.C. § 2004a(a)(1). Although the cited provisions show federal control of water resources, “[t]he Federal Government’s liability cannot be premised on control alone.” Navajo II, 556 U.S. at 301; see also Mitchell II, 463 U.S. at 224-25. Like the “bare” trust language in Mitchell I, the United States’ assistance with constructing and managing the wells on the Hopi reservation does not establish a fiduciary duty to ensure adequate water quality on the reservation. See Mitchell I, 445 U.S. at 541-42.

The trust language in the Order of 1882 and the Act of 1958, combined with separate and scattered obligations to help provide safe water, do not show that Congress expressly accepted a common-law fiduciary duty to manage water resources. Navajo II, 556 U.S. at 302. The elaborate system of federal control and the express statutory language present in Mitchell II and White Mountain Apache were not found here. See White Mountain Apache, 537 U.S. at 475 (finding that a statute which authorized United States to exclusively use trust land indicated that Congress intended to create fiduciary duty to maintain land); Mitchell II, 463 U.S. at 220, 224-25 (finding that statutes and regulations addressing “virtually every aspect of forest management” gave United States “full responsibility” over Indian resources, and therefore Congress accepted a fiduciary duty to manage those timber resources). Unlike the system of plenary federal control found in both White Mountain Apache and Mitchell II, the statutory provisions cited here simply required the Government to assist in providing safe drinking water. Furthermore, nothing in the trust language or statutes prevented the Tribe from managing the resource on its own. Thus, the Hopi Tribe failed to “identify a specific, applicable, trust-creating statute or regulation that the [United States] violated.” Navajo II, 556 U.S. at 302.

Because the Tribe could not prove the first element to establish jurisdiction under the Indian Tucker Act, the Federal Circuit did not need to reach the second step of the inquiry and determine whether the specific obligation was money-mandating. The Federal Circuit also denied the Tribe’s request for jurisdictional discovery relating to the federal government’s control over water resources, because additional evidence of control would not change the Court’s analysis. The Court of Federal Claims’ dismissal for lack of jurisdiction under the Indian Tucker Act was affirmed.

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