Publications

Greetings, Court Fans!

This morning, the Court issued decisions in three of the most closely watched cases of the term:

• In Mallory v. Norfolk Southern Railroad (No. 22-1168), the Court’s three most conservative justices united with its two most liberal ones to uphold a Pennsylvania statute providing that companies that register to do business in the state thereby consent to the Pennsylvania courts exercising general personal jurisdiction over them;

• In Moore v. Harper (No. 21-1271), a majority of six justices rejected the so-called independent state legislature doctrine (at least in its strongest form), holding that state courts can exercise judicial review under their state constitutions over election laws enacted by their state legislature;

• And in Counterman v. Colorado (No. 22-138), a 7-2 Court held that in prosecutions for making a “true threat,” the First Amendment requires the government to show that the defendant had a subjective understanding of the statement’s threatening character that rises at least to the level of recklessness.

That leaves just four cases to be decided by the end of the term on Friday. We’ll be back soon to summarize today’s three decisions, as well as to let you know about the outcome of the last few, which we expect will be issued Thursday or Friday.

But today, we’ve got summaries of three of last week’s decisions:

• Arizona v. Navajo Nation (No. 21-1484), where a 5-4 Court ruled against the Navajo Tribe in a dispute over Colorado River water rights;

• Yegiazaryan v. Smagin (No. 22-381), in which the Court held that whether an injury is “domestic” for purposes of RICO is “context specific,” rather than resting on just one particular factor (like the plaintiff’s residence); and

• Pugin v. Garland (No. 22-23), where the Court held that a criminal offense may “relate to obstruction of justice” for the purpose of immigration proceedings even if the underlying offense did not involve obstructing a pending investigation or proceeding.

As you probably know, ongoing droughts and explosive population growth in the southwest has spawned decades of litigation over water rights, much of it focused on the Colorado River. The most recent iteration of those disputes to reach the Court, Arizona v. Navajo Nation (No. 21-1484), addressed the United States’ responsibilities toward the Navajo Tribe regarding water rights. In a 5-4 decision by Justice Kavanaugh (joined by Chief Justice Roberts, and Justices Thomas, Alito, and Barrett), the Court held that an 1868 U.S. treaty did not require the U.S. government to take affirmative steps to assess or address the Tribe’s rights to water for its reservation. Continuing his familiar role as a defender of tribal rights, Justice Gorsuch penned a detailed dissent (joined by Justices Sotomayor, Kagan and Jackson), contending that the history and circumstances surrounding the 1868 Treaty and established principles of Indian law required the assessment of water rights the Tribe sought.

By way of background, the United States initially entered into a peace treaty with the Navajo in 1849. After the battles that nonetheless followed, the United States forced much of the Tribe to move to the Bosque Redondo Reservation, which was located on land in New Mexico that was so barren, inhospitable, and devoid of water that thousands of Navajos died there. In 1868, the parties entered a second treaty to end continued hostilities. That treaty allowed the Navajos to return to their original homeland and established a new reservation there, which was to serve as the Tribe’s permanent home.

Under longstanding doctrine first articulated in Winters v. United States, 207 U.S. 564 (1908), when a U.S. treaty establishes an Indian reservation, it inherently reserves rights to water for the tribe living there to the extent needed to accomplish the fundamental purpose of the treaty. Under Winters, the United States continues to hold those water rights in trust for the Navajo Tribe. The extent of those water rights, including rights to water from the Colorado River, and the United States’ obligations to the Tribe, have been in dispute for decades. The Navajos ultimately filed suit, seeking to compel the federal government to assess the Tribe’s reserved water rights and determine what was needed to fulfill the 1868 Treaty’s promise of establishing a permanent home for the Tribe on the reservation. The failure to do so, the Tribe contended, violated the 1868 Treaty. The District Court dismissed the Tribe’s suit, but the Ninth Circuit reversed.

Writing for a majority of five, Justice Kavanaugh’s opinion reversed the Ninth Circuit. His analysis turned largely on his construction of the Navajo claim. His understanding of their claim—one strongly disputed by Justice Gorsuch in dissent—is that the 1868 Treaty “requires the United States to take affirmative steps to secure water for the Navajos, for example, by assessing the Tribe’s water needs, developing a plan to secure the needed water, and potentially building the pipelines, pumps, wells, or water infrastructure” necessary to secure the water the Tribe needs. To establish such a breach of trust claim, according to the majority, the Court’s decision in United States v. Jicarilla Apache Nation (2011) and related cases require the Tribe to show that the text of a treaty, statute, or regulation creates specific rights or imposes specific duties on the United States. That requirement, Kavanaugh argued, is grounded in separation of powers principles: It is the sovereign function of Congress and the President to manage the “Indian trust relationship,” and the courts should not read into treaties, statutes, or regulations any rights or duties that are not expressly stated.

Under that standard, the Navajo Tribe’s claim failed. The 1868 Treaty “contained no ‘rights-creating or duty-imposing’ language that imposed a duty on the United States to take affirmative steps to secure water for the Tribe.” Kavanaugh emphasized that the United States’ general trust relationship with Indian tribes does not impose on the government specific duties or the fiduciary duties of a private trustee under a conventional trust. Rather, the United States has only those duties that it specifically agreed to in the text of a treaty, statute, or regulation. It is up to Congress to decide whether to enact legislation that more specifically addresses the current water needs of the Navajo Tribe.

The majority also rejected the Tribe’s argument that, by establishing the reservation as a “permanent home” for the Tribe, the 1868 Treaty carried with it obligations to assure the Tribe adequate water, reiterating that the Treaty imposed no express duty on the United States to take affirmative steps to secure water for the Tribe. Kavanaugh also rejected the argument that, by opposing the Navajo Tribe’s effort to intervene in the Colorado River water litigation, the United States acknowledged its responsibility to assert the Tribe’s reserved water rights, again leaning on Jicarilla’s requirement that a treaty, statute, or regulation must contain explicit “rights-creating or duty-imposing” language. For the same reason, the majority declined to follow the pro-Indian canon of construction (relied on by Justice Gorsuch) that would require the Court to read the 1868 Treaty as the Navajos would have understood it at that time.

While not relied upon as a basis for its decision, the majority recognized that its ruling could affect the interests of the neighboring states of Arizona, Nevada, and Colorado, which had all intervened to oppose the Navajo Tribe’s suit. As the Court recognized, “the Navajos face the same water scarcity problem that many in the western United States face” and “[a]llocating water in the arid regions of the American West is often a zero-sum situation.”

Justice Gorsuch dissented, arguing that the Navajo’s suit should be allowed to proceed. As he explained, existing federal compacts and statutes and the decades-long litigation over Colorado River water have never resolved what the Navajos’ rights are. Given that, he rejected the majority’s characterization of the Tribe’s suit as one seeking to compel the United States to take “affirmative steps” to secure water for the reservation, such a building pipelines and other water infrastructure. Rather, the dissenters saw the suit as one seeking to compel the United States to assess the scope of the Winters water rights it holds for the Tribe and to determine what water is needed to fulfill the purposes of the 1868 Treaty. Only if it is found that the United States is misappropriating or interfering with the water rights that it holds in trust for the Tribe would there be any need to compel the United States to develop a plan to comply with its trust obligations.

The dissent also rejected the majority’s position that separation of powers principles limit the Court’s review of the Tribe’s claims. As Gorsuch observed, the Judiciary has a constitutional role in construing treaties, reflected in Article III’s extension of the Judicial Power to cases “arising under . . . Treaties made” (Art. III, § 2, cl. 1). And the Supreme Court has recognized Indian tribes’ right to sue to enforce rights found in treaties. Gorsuch also rejected the majority’s reliance on Jicarilla. In his view, that line of authority was limited to tribes’ suits for money damages against the United States under the Tucker Act, not to equitable actions like this case.

The dissenters would instead use traditional principles of contract interpretation to assess treaties like the 1868 Treaty at issue here. Under those principles, ambiguous treaty provisions are to be construed against the drafting party, with a higher level of scrutiny required for contracts involving a fiduciary relationship. And in applying these principles to treaties with Indian tribes, the Court has recognized that it must interpret the treaty’s terms as Indian tribes would have understood them at the time, consider the history and circumstances of the treaty, and imply into the treaty a duty of good faith on behalf of the United States to protect Indian tribes and their way of life. Applying those rules here, Gorsuch concluded that the Treaty should be understood to give the United States a duty to manage the water it holds for the Tribe in a “legally responsible manner.” The Tribe’s suit asks only the U.S. “to fulfill part of that duty by assessing what water rights it holds for them.”

Justice Gorsuch did find one silver lining in the majority opinion: It acknowledges that the Navajos may seek to protect their interests by intervening in water rights litigation that affects them. That acknowledgment, according to Gorsuch, effectively eliminates the ability of lower courts to deny the Tribe’s right to intervene in the Colorado River water litigation or other litigation affecting the Tribe’s water rights.

Justice Thomas filed a concurring opinion, urging the Court to address what exactly the “trust relationship” between the United States and Indian Tribes means. In his view, whatever that relationship is, it does not implicitly impose specific trust responsibilities on the government or justify the use of pro-Indian canons of construction for Indian treaties that depart from the usual rules of statutory construction.

Our next case for today is Yegiazaryan v. Smagin (No. 22-381), where the Court addressed when an injury is “domestic” for purposes of the Racketeer Influenced and Corrupt Organizations Act (RICO). As the RICO fans out there know, the Court held in RJR Nabisco, Inc. v. European Community (2016) that in order to sustain a civil RICO claim, a plaintiff must “adequately plead a domestic injury.” Did a resident of Russia adequately allege a domestic injury when he sued a California resident? Writing for a majority of six, Justice Sotomayor concluded that he did because “the circumstances surrounding the injury indicate it arose in the United States,” even though the plaintiff himself resided abroad.

Vitaly Smagin prevailed in a multi-million dollar arbitration against Ashot Yegiazaryan stemming from some failed real estate investments in Moscow. He brought an action in California federal court to enforce the award. But Yegiazaryan tried to frustrate Smagin’s ability to collect in various ways, including by accepting a separate $198 million-dollar settlement through the London office of a Los-Angeles-based law firm, concealing the funds in offshore entities, and hiding assets in shell companies in the United States. When the court found Yegiazaryan in contempt of court for preventing collection on the judgment, Yegiazaryan feigned sickness and submitted a forged note from a Californian doctor, then intimidated the doctor into avoiding service of a deposition subpoena. This all prompted Smagin to sue Yegiazaryan under RICO, but the District Court dismissed Smagin’s suit, concluding that he failed to allege a domestic injury. The Ninth Circuit then reversed, adopting a “context-specific” approach to determining whether a plaintiff’s injury is domestic for purposes of RICO, which conflicts with a stricter “residency of plaintiff” test endorsed by the Seventh Circuit. The Court granted cert to resolve that split.

Justice Sotomayor, writing for a 6-3 majority, began by recognizing that RJR Nabisco—which addressed whether RICO applies extraterritorially—had no occasion to explain what constitutes a “domestic injury.” Nonetheless, Sotomayor found that a test looking to “the circumstances surrounding the alleged injury” is most consistent with RJR Nabisco’s recognition that foreign plaintiffs may sue under RICO and that the domestic-injury rule’s application “will not always be self-evident.” The bright-line rule adopted by the Seventh Circuit and advocated for by Yegiazaryan, by contrast, “dispenses any such subtlety” by categorically barring foreign plaintiffs. Moreover, a context-specific approach more closely aligns with the statute’s focus, which is to remedy injuries caused by a pattern of racketeering activity (not just an injury in isolation).

Applying a contextual approach to the facts at hand, Sotomayor acknowledged that Smagin has likely felt an economic injury in Russia. But the circumstances surrounding his injury make clear it arose in the United States. For one, much of the alleged racketeering activity occurred here (e.g., creating U.S. shell companies to hide U.S. assets, submitting a forged doctor’s note to a California federal court, intimidating a U.S.-based witness). For another, the “injurious effects of the racketeering activity” largely manifested in California, namely through the frustration of Smagin’s efforts to obtain postjudgment discovery in California court, to seize assets in California, and to seek other appropriate relief from the California district court. Rejecting Yegiazaryan’s appeal to common-law principles as irrelevant and the dissent’s critiques as “displac[ing] congressional policy choices,” Sotomayor thus affirmed the Ninth (as well as the Second and Third) Circuit’s test, rejecting the Seventh Circuit’s more rigid rule.

Justice Alito, joined by Justices Thomas and Gorsuch, dissented, criticizing the majority for “offer[ing] virtually no guidance to lower courts.” While the majority’s test “envision[s] a long list of factors that might be relevant,” it provided little explanation as to which factors are the most important, whether particular factors are necessary or sufficient, or what to do if the factors point in different directions. Alito also accused the majority of ignoring other factors that could be relevant, such as the history and location of the underlying dispute, the nature of the intangible property, and the existence of the London arbitral award. And in a section joined only by Justice Thomas, Alito warned that the majority’s decision may create confusion in the Court’s extraterritoriality precedents by giving foreign plaintiffs easier access to RICO’s remedies.

Our last case for today’s update is Pugin v. Garland (No. 22-23). It involves two non-citizens who were determined to be removable from the United States because they had been convicted of offenses “relating to obstruction of justice,” an aggravated felony that can serve as the basis for removal under 8 U.S.C. §1101(a)(43)(S). But the circuits have split as to whether an offense “relates” to obstruction of justice if the elements of the offense do not require the defendant to have obstructed a pending investigation or proceeding. A majority of the Court concluded a pending investigation isn’t required, over a dissent from a slightly unusual combination of three justices. 

The case arises from two separate removal proceedings. In one, Fernando Cordero-Garcia was found to be removable based on his conviction of various California offenses, including one for dissuading a witness from reporting a crime. In the other, Jean Francois Pugin was found removable based on a Virginia conviction for being an accessory after the fact to a felony. Both challenged their orders of removal, contending their offenses of conviction did not relate to obstruction of justice because they had not impeded an already pending investigation; their offenses both arose from conduct intended to prevent the authorities from even learning of the possible criminal conduct. While the Ninth Circuit in Cordero-Garcia’s case agreed that his offense did not relate to obstruction of justice, the Fourth Circuit rejected the Ninth Circuit’s holding that only crimes involving the obstruction of a pending investigation fall within the scope of §1101(a)(43)(S). The Court granted certiorari to resolve that split.

Writing for a majority of the Chief Justice and Justices Thomas, Alito, Barrett, and Jackson, Justice Kavanaugh sided with the Fourth Circuit in a swift opinion. He started with dictionary definitions of obstruction of justice as of 1996, when §1101(a)(43)(S) was enacted. Those sources all described the offense as trying to impair the machinery of justice, without any indication the offense is limited to conduct directed at pending proceedings. Federal criminal law follows this understanding: It proscribes various offenses in a chapter entitled “Obstruction of Justice,” many of which cover obstructive conduct in advance of any investigation. The Model Penal Code and the bulk of the states’ obstruction offenses follow the same course. Finally, Kavanaugh argued that this result just makes sense, observing that obstruction of justice “is often most effective when it prevents an investigation or proceeding from commencing in the first place,” so §1101(a)(43)(S) should not be read to fall short of the type of obstructive conduct that is perhaps most serious.

Justice Sotomayor dissented, joined by Justices Gorsuch and (mostly) Kagan. While they agreed that there are some offenses falling under the umbrella of obstruction of justice that do not involve impeding an ongoing investigation of proceeding, the “core” of the offense involves only that sort of conduct. The very first federal “obstruction of justice” offense in 1831 forbade efforts to impede pending judicial proceedings. And if that statute weren’t clear enough on its own, the Court itself held in 1893 that this offense required an active proceeding. The Court then reinforced that holding in United States v. Aguilar (1995)—just a year before §1101(a)(43)(S)’s enactment—holding that a person who lacks knowledge of a pending proceeding cannot be convicted under the main federal obstruction of justice statute. When Congress added “obstruction of justice” to the list of aggravated felonies just a year later, it presumably was aware of this settled interpretation, so its use of statutory language that picked up this settled law implicitly codified this limitation in the statute. And while it may be true that state and federal law proscribes a broader range of obstruction-ish offenses, like witness tampering, that do not necessarily require a defendant to have obstructed an ongoing proceeding, nothing in the statute suggests that Congress intended to turn everything falling within that broader category of crimes into an aggravated felony that provides a basis for deportation.

In a part of her dissent joined only by Gorsuch, Sotomayor offered a second reason to interpret §1101(a)(43)(S) narrowly. At the very least, the phrase “relating to obstruction of justice” is a bit vague. And in prior immigration cases, the Court has occasionally gestured at a rule of lenity-type idea that deportation statutes should be interpreted as narrowly as possible. Thus, even if one might read §1101(a)(43)(S)’s text to reach obstruction of justice broadly understood, absent a clear indication that Congress intended that result, the statute should be limited to the core of the offense.

Finally, we come to Justice Jackson’s concurrence, which we’ve taken slightly out of order and saved for last. Few would be surprised to see Justices Sotomayor and Gorsuch adopting a narrower approach to the interpretation of a quasi-criminal statute and hence siding with defendants. But if there were a third vote to join them, most would guess it would be Jackson, who has already formed a bit of a horseshoe-shaped alliance with Justice Gorsuch on some criminal-justice questions. But instead the third dissenter was Kagan, while Jackson joined Kavanaugh’s majority opinion. What gives? Well, in this case, Jackson thought the statute in question was pretty clear: When Congress inserted the phrase “offense relating to obstruction of justice” into §1101(a)(43)(S), it seemed to be referring to the chapter of the U.S. code titled “Obstruction of Justice.” And the offenses in that chapter clearly went far beyond obstruction of a pending investigation, proscribing all sorts of conduct that prevented a criminal proceeding from even getting off the ground. So while it might be a closer call whether obstruction of justice generally requires an already pending proceeding, in this case, Congress seemed to be codifying the broader conception of the offense seen in how it is categorized in the U.S. code.