Here is the opinion in Navajo Nation v. Dept. of the Interior. Briefs here.
Moreover, neither Morongo nor Gros Ventre nor Jicarilla involved claims to vindicate Winters rights, which provide the foundation of the Nation’s claim here. Unlike the plaintiffs in those cases, the Nation, in pointing to its reserved water rights, has identified specific treaty, statutory, and regulatory provisions that impose fiduciary obligations on Federal Appellees—namely, those provisions of the Nation’s various treaties and related statutes and executive orders that establish the Navajo Reservation and, under the long-established Winters doctrine, give rise to implied water rights to make the reservation viable.
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We hold in particular that, under Winters, Federal Appellees have a duty to protect the Nation’s water supply that arises, in part, from specific provisions in the 1868 Treaty that contemplated farming by the members of the Reservation.
On Wednesday, February 24, 2021, in an order from Klamath County Circuit Court Judge Cameron F. Wogan, the Oregon court again affirmed the Klamath Tribes’ water and treaty rights. Wednesday’s order rejected attacks on the Tribes’ water rights determined by the Oregon Water Resources Department (OWRD) during the administrative phase of the Klamath Basin Adjudication (KBA), affirmed the senior priority date of the Klamath Tribes’ water rights in the Klamath Basin, and upheld the need to maintain a healthy and productive habitat to meet the Tribes’ treaty right to fish, hunt, trap, and gather.
Klamath Tribes Chairman Don Gentry responded to the order, “We are pleased that Judge Wogan upheld the rulings from the administrative phase of the KBA. He reaffirmed that the 1864 treaty entered into between the Klamath Tribes and the United States reserved to the Tribes sufficient water to keep our fisheries and other aquatic resources healthy so that we can protect our natural resources and cultural traditions.”
NARF Staff Attorney Sue Noe explained, “Judge Wogan correctly affirmed quantification of the Tribal water rights based on the habitat needs of the fish, wildlife, and plants. Although he ruled that opponents of the Tribal rights will have another chance to try to reduce the amounts by showing the Tribes don’t need all the water awarded by OWRD to meet their livelihood needs, Judge Wogan made clear in no uncertain terms that the amounts cannot be below what is necessary to provide healthy and productive habitat.”
Importantly, like all other courts that have considered the issue, Judge Wogan ruled that the Klamath Tribes’ water rights extend to Upper Klamath Lake. Upper Klamath Lake forms part of the border of the former Reservation and provides critical habitat for the endangered c’waam and koptu (Lost River and shortnose sucker fish), which are sacred fish species traditionally harvested by the Tribes.
Represented by NARF, the Klamath Tribes successfully achieved recognition of their treaty-reserved water rights in federal court litigation in the 1970s and 1980s in United States v. Adair, but the federal courts left quantification of the water rights to the state adjudication in the KBA. After the successful conclusion of the KBA’s 38-year administrative phase, the Tribes were able to begin enforcing their water rights for the first time in 2013. The administrative determinations are presently on review in the Klamath County Circuit Court and Judge Wogan’s ruling is the latest to come out of that process.
Here are the en banc stage materials in United States v. Abouselman:
En Banc Petition
Order Denying Petition for Rehearing
Panel materials here.
Here is the opinion in United States v. Abouselman.
Briefs and lower court materials here.
Folks can register here:
WEBCAST: Water Is Life: Inside the Struggle over Access to Water in Indian Country
Date(s):September 10, 2020
Event start time: 12:00 PM
Event end time: 2:00 PM
Credit: 0 Credit Hours
The coronavirus pandemic has focused public attention on water insecurity in Native American communities. On the Navajo Nation, for example, recent studies show that at least 15% of the population lacks access to running water. This event will feature elected officials, lawyers, and members of civil society who are working to protect and realize the right to safe, clean drinking water across Indian Country through litigation, advocacy, and infrastructure development.
Pre-registration for this program is required. As always, please feel free to share this invitation with colleagues. D.C. Bar membership is not required to attend.
Are you a current law student and looking to register for one of our programs? Learn about the D.C. Bar Law Student Community and attend most individual programs at a discounted rate. Find out more here.
Webinar registrants will receive access information by logging into the D.C. Bar website. You will need a headset or working computer speakers to hear the audio portion of the presentation.
Sponsored by: Indian Law Committee of the D.C. Bar Environment, Energy and Natural Resources Community
Related Community of Interest: D.C. Bar Law Student Community
Program Partner: American Bar Association, Section of Environment, Energy and Resources (ABA-SEER); Environmental Law Institute (ELI); Native American Bar Association D.C. (NABA-DC)
- Bryan Newland, Chairman, Bay Mills Indian Community
- Katie Brossy, Senior Counsel, Akin Gump Strauss Hauer & Feld LLP
- Emma Robbins, Navajo Water Project Director, DigDeep
- Rose Petoskey, President, Native American Bar Association of DC (Moderator)