Episode 60 Transcript: The Navajo Nation’s Water-Rights Case
CLARICE: Hello, everybody. Welcome to this week’s episode of Environmentally Speaking.
MARISA: Hi, everyone. I’m Marisa Desautel an environmental attorney in Rhode Island.
CLARICE: And I’m Clarice. I’m coming in with your questions, comments, topics, and things to talk about. And this week’s topic comes from you, Marisa.
MARISA: It does. I subscribe to a couple of legal news blogs, sources, you know, updates, that kind of thing, and one of the topics that was reported on this past week had a lot to do with indigenous people’s rights with respect to the natural resources on their land.
CLARICE: And in this case lack of.
MARISA: Or lack thereof and how the U.S. Supreme Court is treating the historically established rights of indigenous people and it – I hate to – you know, I’m always so negative, but this is another negative topic. It appears as though the rights that were given to the indigenous people, even though they were here first, have been whittled away or time and continue to do so.
CLARICE: And more specifically the case that brought this up is – my understanding is that the Navajo people in Arizona filed a claim, I believe, against the State of Arizona regarding lack of adequate water access on the reservation specifically to do with the Colorado river. So I read into this a little bit further and it just very boiled down very basic. It sounds like most of the homes on this particular reservation don’t have access to running water.
CLARICE: They didn’t go into detail, but essentially I believe the claim is that the State of Arizona has a responsibility – or they’re asserting that the State of Arizona has a responsibility to make sure that there is water access in this community and right now there isn’t. So just, I mean, on a surface level, first blush, it’s just the idea that folks are living in an area in which they don’t have access to water and have to turn around and tell the government, hey, man, we were promised that we could turn our faucets on and nothing is coming out. And it’s just such a heartbreaking thing to hear about, you know. You want everybody to have water. It feels like the bear minimum.
[0:02:55] MARISA: I’m just curious. The competition for water on an Indian reservation has to be between the indigenous people and the federal government because they’re the only two entities that have a claim. So what’s the federal government doing that it’s using all the water?
CLARICE: In the articles I saw, I didn’t see any response. A lot of things I saw were no comment, declines to reach back out, things of that nature, so I’m not quite sure what their position is. I also couldn’t find any articles on it. I, personally as a little bit of background, don’t necessarily have access to some of these. Like I don’t have Westlaw or Nexus or those beautiful gigantic legal databases, but from what I understand the crux of the issue is the Navajo people are saying, you have a responsibility to ensure we have water access on this land and you’re not doing that. Yeah.
MARISA: Phone because I’ve got this particular article open that talks about the history of Native American water rights and it goes back to 1908 where the United States Supreme Court decision in a case called Winters versus United States was supposed to establish that Native Americans have the right to draw enough water to enable their own self-sufficiency from the rivers that pass through their reservations. Hey, that seems pretty clear to me. Since 1908 if it’s on your reservation it’s yours.
But as we know dealing with federal government in other matters and projects, the U.S. government is the ultimate custodian of any navigable water of the United States and I’m sure that the argument has come down to is the right conferred by this Winters case an actual, enforceable policy, or is it just a paper right. Like how does it actually play out in 2022. And it sounds like the federal government is doing more control and usage to the indigenous people’s detriment.
CLARICE: Yeah. So tell me where is the case right now? What’s kind of brought this back into the news?
MARISA: The case that you referenced and the one that I saw in this newsletter that I was interested in is on appeal to the United States Supreme Court and the vehicle for that appeal is called a writ of certiorari. We’ve talked about this before.
[0:06:08] CLARICE: Yes.
MARISA: When you appeal in Rhode Island, anyway, to the Rhode Island Supreme Court, you either have a statutory right of appeal or you apply to the court for something called a writ of certiorari and that just means that the court has discretion about whether they want to take the case, hear the case, and decide it. So for the Arizona matter that you and I were talking about, the indigenous people filed a writ of certiorari and it’s a very lengthy well-written document.
CLARICE: I think it was 40 –
MARISA: I thought it was 60 pages.
CLARICE: — 48, 50 pages, yeah.
MARISA: Yeah. That goes into the history of indigenous people and water rights including this Winters case from 1908 and then spells out what the argument is for the indigenous people. But as far as I know, the U.S. Supreme Court has not decided on whether they’re going to take up this case, so it’s pending.
CLARICE: Which is just a reminder to folks who are non-attorneys. Essentially you have to make an argument on why your argument should be heard, not even yet decided on but why you decide to stand in front of whatever judicial body you’re appealing to. So unfortunately that just means it’s an even more lengthy process.
MARISA: And it’s a fine line because, in my experience anyway, when you’re filing a writ of certiorari, like you said, you’re just asking for permission to be heard, but you’re still making arguments. You’re still trying to get your position and your point across to the Supreme Court through your writ so that they can see whether the case should be decided on its merits. So even though you’re not before the court yet, you’re still kind of before the court.
CLARICE: It’s very much a persuasive piece.
MARISA: Very. Very. So let’s see. I’m just looking at the date on the writ. It looks like it was filed recently obviously. And there’s no date on it.
CLARICE: No. I didn’t see one.
MARISA: Yeah. That’s interesting.
CLARICE: I was pulling it back up.
MARISA: Well, it just popped up as part of this law newsletter, so it’s got to be very recent. Yeah. There’s no docket number. The style of the case is The State of Arizona, the State of Nevada, the State of Colorado, and the Metropolitan Water District of Southern California versus Navajo Nation. So, I mean, there you go. You’ve got state –
[0:09:02] CLARICE: Several states.
MARISA: — and government versus indigenous people fighting over water. I mean, that’s what it is. We’re fighting over water.
MARISA: And I’m laughing. It’s not funny, but it just seems –
CLARICE: It’s the absurdity.
MARISA: It just seems silly. We can’t figure out –
CLARICE: Yeah. We can’t figure out a way just to make sure there’s water for –
CLARICE: — for a whole nation, a whole large population of folks.
MARISA: Yeah. And it looks like the state governments that I mentioned, they’re filing the appeal, but they’re basically saying that they don’t think it’s right that the lower court – I think it’s the Ninth Circuit Federal Court – decided that government has to provide or secure water for the indigenous nation. They want the U.S. Supreme Court to say the Winters case from 1908 says only that indigenous people have a right to secure water for themselves, but that doesn’t mean that the government has to like come up with a plan for them.
CLARICE: And specifically I found a quote by the – and unfortunately this article doesn’t say which state’s lead counsel but one of the states named. So it sounds like – and this is the direct quote. The federal treatise with the Navajo Nation do not address water at all and the doctrine of implied water rights cannot justify imposing such a fiduciary duty. And this came from Rita Pearson Maguire. And like I said, she argued it in the state’s cert petition, so that kind of gives us a little bit of clue as to what the state is asserting. It might not necessarily be fundamentally we want to deny water to this group of people, but more on the other foot of you can have water, it’s just not our expense to get you that water.
MARISA: Which doesn’t make a whole lot of sense to me because in my experience with these water boards – water is a finite resource, duh. And you need to properly plan into the future. So if you’ve got a couple of states here and the Metropolitan Water District of Southern California – if they are making a claim to the shared resource then shouldn’t they have to also include what the usage of Navajo Nation is. You can’t make a withdraw from a particular area and not properly plan. It’s the tragedy of the commons that we’ve talked about before where when you’ve got a finite resource unless everyone comes together and plans into the future as a collective then the tragedy is that you’re going to use that resource until it’s gone. And that seems to be what’s happening here.
[0:12:27] CLARICE: And even before we get to the bigger more ominous issue of tragedy of the commons, if you’re saying that you’re not against this group having water, but it’s not your responsibility, then I would love to hear tangible produced ideas on how these people can get water because it is regulated and it is monitored and there are active systems in place for disbursement. So, I mean, knowing that I’m being dramatic, what do you propose these people do, like make their own pipes, hook them up to the state water main? Like what are they thinking? Clearly I’m frustrated.
MARISA: They’re frustrating topics. I mean, the world’s population is increasing every day and we’re seeing a lack of leadership to deal with these finite resources. So, you know, going through the court system is one option, but wouldn’t it be lovely to see some proactive measures taken through the entire country. You know, we’re in the Northeast, so water rights are not as stressful as they are in, say, Southern California, but we’ve got our own issues with sea level rise. In my experience we’re not a very proactive species in terms of future planning. We’re more reactive than proactive.
CLARICE: Yeah. So hopefully as this progresses, I hope that the Supreme Court decides to listen to this. And then I would love to see from that some more documents outlining each side’s argument in some more detail. Maybe there are some proposed alternatives in there and then we can read them out loud and yell even more.
MARISA: Even more. Well, maybe this deserves a follow-up episode then if and when the Supreme Court makes a decision whether to hear it.
CLARICE: I would love that.
CLARICE: Yeah. Well, on that frustrating Friday note.
[0:14:47] MARISA: That’s it.
CLARICE: That’s it. In other news, while we’re recording it is Veterans Day, so just want to say a happy Veterans Day especially to folks who have served and are serving. From my understanding there are several who are listeners. Thank you for listening, selfishly. Thank you for serving, more holistically. And we appreciate you all so happy Vets Day. On that note, if you have any questions, comments, topics, something – I mean, we talked last week about more kind of uplifting like human pieces. I say uplifting because that came off the tail end of our cemetery episode, so that’s our version of uplifting. If you have anything like that, send it in at Help@DesautelESQ.com. Hit us up on the socials. We are on Facebook, Twitter, Instagram, YouTube if you want to see us.
CLARICE: Oh, LinkedIn. There we go, if you’re feeling very professional. If you want to see us record, we’re on YouTube, as well. Happy Friday.
MARISA: Thank you.