Kolby KickingWoman
ICT
The latest case involving Indian Country was argued Monday before the Supreme Court.
Arizona v. Navajo Nation, like many cases heard before the high court, is complicated and this case in particular deals with the tribe’s water rights as it relates to the Colorado River.
The two issues at hand are whether the U.S. Court of Appeals for the 9th Circuit erred in its judgment allowing the Navajo Nation “to proceed with a claim to enjoin the secretary of the U.S. Department of the Interior to develop a plan to meet the Navajo Nation’s water needs and manage the mainstream of the Colorado River in the Lower Basin” and can the tribe “state a cognizable claim for breach of trust consistent with this Court’s holding in Jicarilla based solely on unquantified implied rights to water under the Winters Doctrine” according to a document on the Supreme Court’s website.
The Winters Doctrine stems from a 1908 decision that states when Congress reserves land, it also reserves water sufficient to fulfill the purpose of the reservation.
Representing the United States, assistant to the U.S. Solicitor General Frederick Liu said that while the government may have a moral and political responsibility to address the tribe’s water needs, it does not have a judicially enforceable affirmative duty to do so.
Citing the Navajo Nation treaty of 1868, Liu added the treaty does not impose on the government a “duty to construct pipelines, pumps, or wells to deliver water.”
Rather, the tribe is free to develop its own infrastructure and access groundwater and aquifers instead of the main stem of the Colorado River.
“What the Navajo Nation cannot do, however, is to impose on the United States a duty that the government has never expressly accepted. Accordingly, the judgment below should be reversed,” Liu said in his opening statement.
Liu was pressed by Justice Elena Kagan on how the tribe’s water rights are unenforceable when they are included in the treaty.
“You’re saying, those rights are unenforceable, and I guess I don’t understand if the treaty promises water, where do you get the idea that that is unenforceable?” Kagan asked.
“The treaty does have vast water rights in the tribe, and those rights are enforceable including by the tribe, but the promise that we have allegedly breached here isn’t about violating those rights. It’s about violating affirmative duties to supply the water to the tribe,” Liu responded.
Arguing on behalf of the Navajo Nation, Shay Dvoretzky, said the government has failed the tribe by not fulfilling its promise to secure its water.
He noted the average person on the Navajo reservation uses seven gallons of water per day whereas the national average is between 80 and 100 gallons.
“The United States agrees that on paper the nation has treaty rights to the water its people need,” Dvoretzky said. “We’re here because the United States says it doesn’t have to do anything to secure the water it promised.”
Thirty-seven tribes and several national Native organizations filed an amicus brief supporting the tribe. The brief makes many arguments and urges the court to honor established water rights doctrine; specifically the Winters doctrine.
“Although every tribal homeland is unique, invariably, each requires water to be livable,” part of the brief reads. “Applying the canons of construction this Court has developed as part of its federal Indian law jurisprudence, as well as the history and circumstances surrounding the creation of each individual reservation, the Winters Doctrine holds that the United States promised to provide water sufficient to fulfill the purposes for which the reservations were created.”
It is nearly impossible to predict which way the justices will come down in any case, Derrick Beetso, Diné, is looking at the case with good thoughts and intentions. One thing he hopes people take away from the case is the dire situation that many people are living in today.
“These are Americans within the Navajo reservation, and they have a really different water circumstance and people off the reservation and I think people can understand what that situation is,” Beetso told ICT before the oral arguments. “Maybe perhaps there’s a possibility for better understanding of our future as Indigenous people here.”
Beetso serves on the IndiJ Public Media‘s board of directors.
Playback of the oral arguments can be listened to here. A decision is expected to be rendered before the court convenes the current term in June.
In April, the court will hear a case involving the Lac du Flambeau Band of Lake Superior Chippewa Indians. Last November, the court heard arguments in Haaland v. Brackeen, a case many in Indian Country are eagerly awaiting the decision as it deals with the Indian Child Welfare Act.
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