Posted on 06/23/2023 10:25:38 AM PDT by CedarDave
Under a historic water crisis in the desert southwest, the Navajo Nation asked for a court order requiring the federal government to determine the Nation’s water needs and to devise a plan to meet those needs. In a 5-4 decision on Thursday, the Supreme Court held that the United States owes no “affirmative duty” to the Navajo Nation to secure water, reversing a decision by the U.S. Court of Appeals for the 9th Circuit. The majority ruled that the 1868 Treaty of Bosque Redondo, known to the Nation as the Old Paper, or Naal Tsoos Sani, established no federal obligation to do so.
The decision came down to how the court framed the Nation’s claims. The majority accepted the federal government’s invitation at oral argument to frame Indian treaties as establishing rights to resources such as land, timber, minerals, and water, with each property right a “stick in the bundle of property rights that make up a reservation.” The property rights theory of reservation creation effectively placed the burden on the Nation to show that the treaty explicitly required the United States to do more than merely recognize tribal water rights. Following cases such as United States v. Jicarilla Apache Nation, the court held that the United States owes no duty to Indian tribes except those expressly noted in treaties, statutes, or regulations. In other words, once the federal government recognizes tribal property rights through the treaty, the government’s obligations all but disappear in the absence of additional enactments.
The Nation had argued that the 1868 treaty did more than establish bare property rights. The Old Paper, it said, established an ongoing relationship between the tribe and the United States, often referred to as the general trust relationship or the duty of protection, that placed obligations on the federal government to act to fulfill the purposes of the treaty. It also argued that Indian land cession treaties necessarily granted a reservation the right to enough water to maintain its land. The Nation relied on the canons of construing Indian treaties, which requires the judiciary to interpret treaty language as tribal treaty negotiators would have understood it. The majority instead characterized the Nation’s argument as a demand to “rewrite and update this 155-year-old treaty.”
The decision was released as worldwide climate change has begun to dramatically dry up the desert southwest. The court tread relatively lightly on the policy ramifications of its decision but did acknowledge that water allocation in the west is a zero-sum game, presuming that a Navajo Nation victory here might well lead to decreases in water for others. The majority also noted that Congress has already agreed to establish water infrastructure for the Nation, at the cost of billions of dollars.
Justice Neil Gorsuch dissented, his third extensive writing in the last two weeks on Indian law matters. Gorsuch would have framed the issue before the court as a matter of applying the canons of construing Indian treaties. He chastised the majority for ignoring the historical context of the 1868 treaty, which arose from “the Long Walk” in 1864, in which the federal government forcibly marched the bulk of Navajo Nation from its homelands to Bosque Redondo in what is now eastern New Mexico. Gorsuch emphasized that Bosque Redondo was a harsh, inhospitable area with little or no game and agricultural opportunities, largely due to a lack of water. The 1868 treaty allowed the Nation’s citizens to return to their homelands with the promise of adequate resources. Gorsuch applied that history in light of the canons, finding that the overall context of the treaty would require the government to take affirmative steps to secure the water needed to fulfill the treaty’s purposes. He pointed to language in the Supreme Court’s 1908 decision in Winters v. United States, in which the court named the federal government a “fiduciary” of reservation resources.
Gorsuch also noted that the Nation’s complaint did not demand that the federal government guarantee water to the Navajos, but instead merely asked the government “to identify the water rights it holds for them.” The majority scoffed at that characterization of the complaint, pointing to speculation by the Nation’s counsel at oral argument that the relief requested might also require the federal government take action to build expensive infrastructure.
Gorsuch observed that the United States has long refused to act to fulfill the 1868 treaty’s purposes, acting to block efforts by the Navajo Nation since “Elvis was still making his rounds on The Ed Sullivan Show.” He did note a “silver lining,” offering suggestions on how the Nation can still attempt to intervene in ongoing Colorado River water rights litigation to assert its treaty rights to water. Gorsuch bitterly concluded, “After today, it is hard to see how this Court (or any court) could ever again fairly deny a request from the Navajo to intervene in litigation over the Colorado River or any other water sources to which they might have a claim.”
As is now common in Indian law cases, Justice Clarence Thomas wrote separately to urge the court to reconsider foundational principles of federal Indian law, his third apparent response to Gorsuch’s pro-tribal writings this term. Concurring fully in the majority opinion, Thomas suggested that the court revisit its cases recognizing the canons of construction of Indian treaties, reasoning that if there is no enforceable federal trust duty to tribal interests, then there is no basis for the canons.
I waited all Winter for temperatures to get above 50F so that I could swap out the stock dual sport wheels/tires on my Suzuki DR650 for a set of 17 inch supermoto tires with proper street tires. That work is complete, but the rain/t-storms have also stolen opportunity to enjoy the fruits of that labor.
I read the other day that CA’s largest reservoir is at 99%, now. I was wondering how Lake Mead was doing and other lakes in the southwest.
The Agenda 21 proposes that he who controls the water, controls everything. The Pacific Northwest took this to heart in the early nineties, when the signed on to the original Agenda 21, by taking the issue to court (all the way to the Supreme Court) with the Lummi Tribe. They claimed that an old treaty which gave the as much salmon and as much water as they needed meant that they could have all the water. The Supreme Court turned it down.
They took it back to the SupremeCourt, while there was a vacancy after Scalia’s death and got a 4-4 ruling which sent it back to the state, where the same attorney, who originally lost the case to the Supreme Court, was now on the WA State Supreme Court, gave the water rights to the tribes, nullifying the water rights on all private property in unincorporated areas of the state. So far, they have only enforced that in Whatcom County.
This relates to the Navaho case because it rains in WA. It rains a lot. It doesn’t rain in the deserts of the Southwest, so need is at question. In WA, they want to tear down the dams, which supply the cheapest, most reliable form of power there is. Those dams were not originally built for electricity, that was a bonus. Those dams were built for flood control. WA gets too much rain and has melting glaciers, which add to the water rushing through the state, supplying all the water the tribes need. Yet, they have taken away our water rights.
I feel much the same. This article is about Navajo and I, admittedly, don't know much about their history. In Alabama when a friend who has some Cherokee in him says, "You whites stole our land from us" he already knows my reply is going to be, "That's right. We stole land that you Cherokee stole fair and square from the Muskogee." LOL
Sometimes I remind him that he's speaking to a member of a displaced people. The first time I said it he said, "Huh?" So I pointed out that the Germanic Anglo and Saxon tribes were displaced from modern day Germany two cooling periods ago (Dark Age) when the Huns displaced other Germanic tribes (Goths) and forced them into modern day Germany (which displaced the Anglos, forcing them north into Denmark). Some say the second Anglo move shortly after that into Britannia was also a displacement after the Huns moved into Denmark, but I haven't seen enough evidence to make up my mind on that part.
The point being that pretty much every race has been both the oppressor and the oppressed.
You would think Neil Gorsuch would recognize that. Now we're going down the rabbit hole as you've already pointed out.
Oh, so this time the Great White Father wants to stick to what is written in the treaty. /s
They did. Then they sided with the British against the Colonists and got sent out West instead of being shipped to Canada or England with the other losers.
Yes, that is the sad truth. They’ve been screwed at every turn.
A couple years ago, we had 90 days over 90 degrees up here on the panhandle. That was brutal. This cool spring weather with blue skies and no smoke is a Godsend!
“The decision was released as worldwide climate change has begun to dramatically dry up the desert southwest.”
Yup, the southwest is so dry from climate change that we had near record rain and snow last winter.
The Navajos would be lots better off anyway, hiring their own experts rather than having the Feds do it for them.
Might cost them a few bucks up front, but in the long run, they will get a better deal.
Glo-bull warming propaganda!
Wonderful.
The USSC, telling us what laws and contracts “really” mean as the conditions of the time warrant for 234 years.
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