SCTOUS Grants United States and Arizona Petitions in Navajo Water Case

Here was yesterday’s order.

Prior post here.

Thinking if SCOTUS had some good frybread, they’d let Indian country have the nice things we deserve, like an enforceable duty of protection.

Klamath and Hoopa Tribes Prevail in Ninth Circuit Klamath River Water Distribution Challenge

Here is the opinion in Klamath Irrigation District v. Bureau of Reclamation.

Briefs:

Klamath irrigation Opening Brief

Shasta View Opening Brief

Hoopa Answer Brief

Klamath Answer Brief

Federal Answer Brief

Shasta View Reply

Reply

Lower court materials here.

Robin Kundis Craig on Tribal Water Rights and Tribal Health

Robin Kundis Craig has posted “Tribal Water Rights and Tribal Health: The Klamath Tribes and the Navajo Nation During the COVID-19 Pandemic” on SSRN. The paper is forthcoming in the St. Louis University Journal of Health Law & Policy.

The abstract:

Public health measures to combat COVID-19, especially in the first year before vaccines became widely available, required individuals to be able to access fresh water while remaining isolated from most of their fellow human beings. For the approximately 500,000 households in the United States and over two million Americans who lacked access to reliable indoor running water, these COVID-19 measures presented a considerable added challenge on top of the existing risks to their health from an insecure water supply.

Many of these people were Native Americans, whose Tribes often lack fully adjudicated, quantified, and deliverable rights to fresh water. To highlight the critical role that water rights played in Tribes’ capacities to cope with the pandemic, this essay compares the Klamath Tribes in Oregon, who after 40 years of litigation have fairly securely established themselves as the senior water rights holders in the Klamath River Basin, to the Diné (Navajo Nation), whose reservation—the largest in the United States—covers well over 27,500 square miles of Arizona, Utah, and New Mexico but largely lacks quantified water rights or the means to deliver water to households. While access to water was not the sole factor in these two Tribes’ vastly different experiences with COVID-19, it was an important one, underscoring the need for states and the federal government to stop procrastinating in actualizing the water rights for Tribes that have been legally recognized since 1908.

Assessing Water Budget for Navajo Nation by NASA Goddard Photo and Video is licensed under CC-BY 2.0

Dept. of Justice [almost certainly over Interior’s objections] and Arizona File Cert Petitions in Navajo Nation Water Rights Trust Suit

Here is the petition in Dept. of the Interior v. Navajo Nation:

Question presented:

Whether the federal government owes the Navajo Nation an affirmative, judicially enforceable fiduciary duty to assess and address the Navajo Nation’s need for water from particular sources, in the absence of any substantive source of law that expressly establishes such a duty.

Here is the petition and the partial acquiescence by Justice in Arizona v. Navajo Nation:

Questions presented:

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 manage the mainstream of the LBCR so as not to in- terfere with that plan, infringe upon this Court’s re- tained 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?

Lower court materials here.

States’ Cert Petition in Navajo Nation Water Rights Case

Here is the petition in Arizona v. Navajo Nation:

Questions presented:

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?

Lower court materials here.

Tenth Circuit Rejects Ute Tribe’s Effort to Force Water Rights Case to be Adjudicated in Tribal Court

Here is the opinion in Ute Indian Tribe v. McKee.

Briefs:

Lower court materials here.

John Ragsdale on the Aboriginal Water Rights of the Jemez Pueblo

John W. Ragsdale has posted “The Aboriginal Land and Water Rights of the Jemez Pueblo,” forthcoming in the Denver University Water Law Review, on SSRN.

Here is the abstract:

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.

Jemez Pueblo Indians in a ceremonial dance, 1908