I. Does the Ninth Circuit Opinion, allowing the Nation to proceed with a claim to enjoin the Secretary to develop a plan to meet the Nation’s water needs and *ii manage the mainstream of the LBCR so as not to interfere with that plan, infringe upon this Court’s retained and exclusive jurisdiction over the allocation of water from the LBCR mainstream in Arizona v. California?
II. Can the Nation 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?
Since time immemorial, the indigenous people of what became the Southwest United States have maintained sustainable, vibrant communities in the harshest of environments; one with generally arid climate, inconsistent precipitation, heat, wind, thin soil and erosion. These communities, on the razor’s edge, survived for eons because resilience and community, within and with the land, were at the center of their life, economy and order. Balance was not always perfect, but it was the target. The possibility of economic surplus and growth is perhaps a latent human instinct, but it until the fluorescence of Chaco Canyon in the eleventh century it remained subordinate. With the fall of Chaco and eventual restoration of decentralizations and the traditional aboriginal practices, balance returned.
The European invasion and the infusion of competitive individualism and economic growth changed all this. The movement west on the wings of the doctrine of discovery and the ensuing extinguishment of both aboriginal title and the stable-state economies proceeded across the Mississippi and the prairies and slammed the capitalistic wrecking ball into the most resilient of the aboriginal survivors – The Pueblo Indians of the Southwest.
The Jemez Pueblo of Central New Mexico has been one of the fiercest defenders of the traditional aboriginal community. Through the intrusion of Spain, Mexico and ultimately the United States, the Pueblo clung to its central land, its claims to aboriginal surroundings and water, and its sustainable orientation, this article traces the prehistoric courses of the Pueblo, and it centuries-long efforts to maintain both the focus and the legal existence of its aboriginal community. It has not been a complete victory in the dominant sovereigns’ courts, but the aboriginal heart of the people and possibilities for collaboration with other Tribes and, perhaps, with a more generous and enlightened dominant sovereign, remain strong.
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.