{"id":33022,"date":"2023-10-17T12:12:00","date_gmt":"2023-10-17T16:12:00","guid":{"rendered":"https:\/\/indianz.com\/News\/?p=33022"},"modified":"2023-10-17T12:17:28","modified_gmt":"2023-10-17T16:17:28","slug":"propublica-history-repeats-itself-with-state-opposition-to-tribal-water-rights","status":"publish","type":"post","link":"https:\/\/indianz.com\/News\/2023\/10\/17\/propublica-history-repeats-itself-with-state-opposition-to-tribal-water-rights\/","title":{"rendered":"ProPublica: History repeats itself with state opposition to tribal water rights"},"content":{"rendered":" \"Navajo<\/a>
A delegation from the Navajo Nation poses in front of the U.S. Supreme Court in Washington, D.C., following arguments in the tribe’s case on March 20, 2023. The group includes President Buu Nygren, Vice President Richelle Montoya, Navajo Nation Council Speaker Crystalyne Curley, Council Delegates Eugenia Charles-Newton and Brenda Jesus, Navajo Nation Attorney General Ethel Branch, Navajo Nation Water Rights Commission Chair Joelynn Ashley and former chairman Peter MacDonald, seated in front. Photo courtesy Navajo Nation Council<\/figcaption>\r\n
Western States Opposed Tribes\u2019 Access to the Colorado River 70 Years Ago. History Is Repeating Itself.<\/div>\r\n
Records unearthed by a University of Virginia professor shed new light on states\u2019 vocal opposition in the 1950s to tribes claiming their share of the river. Today, many are still fighting to secure water.<\/div>\r\n
Tuesday, October 17, 2023<\/div>\r\n
By Mark Olalde, ProPublica, and Anna V. Smith, High Country News<\/div>\r\n

<\/P>\r\nThis story was originally published by ProPublica<\/a> and co-published with High Country News<\/a>.<\/strong>\r\n

<\/P>ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter<\/a> to receive stories like this one in your inbox<\/em>.

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Series — Waiting for Water: Tribes\u2019 Fight for a Promised Resource<\/a> <\/h5>\r\nThe U.S. Supreme Court ruled in 1908 that tribes with reservations have a right to water. But ProPublica and High Country News found<\/a> that in the drought-stricken Colorado River Basin they face unique obstacles: a state that aggressively opposes them, a process that sometimes doesn\u2019t provide infrastructure to access water and growing competition from other users.\r\n<\/div><\/div>\r\n

<\/P> In the 1950s, after quarreling for decades over the Colorado River, Arizona and California turned to the U.S. Supreme Court for a final resolution on the water that both states sought to sustain their postwar booms.

<\/P>The case, Arizona v. California, also offered Native American tribes a rare opportunity to claim their share of the river. But they were forced to rely on the U.S. Department of Justice for legal representation.

<\/P>A lawyer named T.F. Neighbors, who was special assistant to the U.S. attorney general, foresaw the likely outcome if the federal government failed to assert tribes\u2019 claims to the river: States would consume the water and block tribes from ever acquiring their full share.

<\/P>In 1953, as Neighbors helped prepare the department\u2019s legal strategy, he wrote in a memo to the assistant attorney general, \u201cWhen an economy has grown up premised upon the use of Indian waters, the Indians are confronted with the virtual impossibility of having awarded to them the waters of which they had been illegally deprived.\u201d

<\/P>As the case dragged on, it became clear the largest tribe in the region, the Navajo Nation, would get no water from the proceedings. A lawyer for the tribe, Norman Littell, wrote then-Attorney General Robert F. Kennedy in 1961, warning of the dire future he saw if that were the outcome. \u201cThis grave loss to the tribe will preclude future development of the reservation and otherwise prevent the beneficial development of the reservation intended by the Congress,\u201d Littell wrote.

<\/P>Both warnings, only recently rediscovered, proved prescient. States successfully opposed most tribes\u2019 attempts to have their water rights recognized through the landmark case, and tribes have spent the decades that followed fighting to get what\u2019s owed to them under a 1908 Supreme Court ruling<\/a> and long-standing treaties.

<\/P>The possibility of this outcome was clear to attorneys and officials even at the time, according to thousands of pages of court files, correspondence, agency memos and other contemporary records unearthed and cataloged by University of Virginia history professor Christian McMillen<\/a>, who shared them with ProPublica and High Country News. While Arizona and California\u2019s fight was covered in the press at the time, the documents, drawn from the National Archives, reveal telling details from the case, including startling similarities in the way states have rebuffed tribes\u2019 attempts to access their water in the ensuing 70 years.

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The highest court in the land is once again taking up a case that will determine whether the United States lives up to its promises to tribal nations.<\/p>\n\t\t<\/a>\n\t<\/div>\n\t

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<\/P>\r\nMany of the 30 federally recognized tribes in the Colorado River Basin still have been unable to access water to which they\u2019re entitled<\/a>. And Arizona for years has taken a uniquely aggressive stance against tribes\u2019 attempts to use their water, a recent ProPublica and High Country News investigation found<\/a>.

<\/P>\u201cIt\u2019s very much a repeat of the same problems we have today,\u201d Andrew Curley, an assistant professor of geography at the University of Arizona and member of the Navajo Nation, said of the records. Tribes\u2019 ambitions to access water are approached as \u201cthis fantastical apocalyptic scenario\u201d that would hurt states\u2019 economies, he said.

<\/P>Arizona sued California in 1952<\/a>, asking the Supreme Court to determine how much Colorado River water each state deserved. The records show that, even as the states fought each other in court, Arizona led a coalition of states in jointly lobbying the U.S. attorney general to cease arguing for tribes\u2019 water claims. The attorney general, bowing to the pressure, removed the strongest language in the petition, even as Department of Justice attorneys warned of the consequences. \u201cPolitics smothered the rights of the Indians<\/a>,\u201d one of the attorneys later wrote.

<\/P>The Supreme Court\u2019s 1964 decree<\/a> in the case quantified the water rights of the Lower Basin states \u2014 California, Arizona and Nevada \u2014 and five tribes whose lands are adjacent to the river. While the ruling defended tribes\u2019 right to water, it did little to help them access it<\/a>. By excluding all other basin tribes from the case, the court missed an opportunity to settle their rights once and for all.

<\/P>The Navajo Nation \u2014 with a reservation spanning Arizona, New Mexico and Utah \u2014 was among those left out of the case. \u201cClearly, Native people up and down the Colorado River were overlooked. We need to get that fixed, and that is exactly what the Navajo Nation is trying to do,\u201d said George Hardeen, a spokesperson for the Navajo Nation.

<\/P>Today, millions more people rely on a river diminished by a hotter climate. Between 1950 and 2020, Arizona\u2019s population alone grew from about 750,000 to more than 7 million, bringing booming cities and thirsty industries<\/a>.

<\/P>Meanwhile, the Navajo Nation is no closer to compelling the federal government to secure its water rights in Arizona. In June, the Supreme Court again ruled against the tribe, in a separate case, Arizona v. Navajo Nation<\/a>. Justice Neil Gorsuch cited the earlier case in his dissent<\/a>, arguing the conservative court majority ignored history when it declined to quantify the tribe\u2019s water rights.

<\/P>McMillen agreed. The federal government \u201crejected that opportunity\u201d in the 1950s and \u201960s to more forcefully assert tribes\u2019 water claims, he said. As a result, \u201cNative people have been trying for the better part of a century now to get answers to these questions and have been thwarted in one way or another that entire time.\u201d

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As dangerous smoke cast an ominous shadow over the nation\u2019s capital, tribes and their advocates continue to wait for a series of monumental decisions from the U.S. Supreme Court.<\/p>\n\t\t<\/a>\n\t<\/div>\n\t

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Three Missing Words<\/div> As Arizona prepared to take California to court in the early 1950s, the federal government faced a delicate choice. It represented a host of interests along the river that would be affected by the outcome: tribes, dams and reservoirs and national parks. How should it balance their needs?

<\/P>The Supreme Court had ruled in 1908 that tribes with reservations had an inherent right to water, but neither Congress nor the courts had defined it. The 1922 Colorado River Compact, which first allocated the river\u2019s water, also didn\u2019t settle tribal claims.

<\/P>In the decades that followed the signing of the compact, the federal government constructed massive projects \u2014 including the Hoover, Parker and Imperial dams \u2014 to harness the river. Federal policy at the time was generally hostile to tribes, as Congress passed laws eroding the United States\u2019 treaty-based obligations. Over a 15-year period, the country dissolved its relationships with more than 100 tribes, stripping them of land and diminishing their political power. \u201cIt was a very threatening time for tribes,\u201d Curley said of what would be known as the Termination Era<\/a>.

<\/P>So it was a shock to states when, in November 1953, Attorney General Herbert Brownell Jr. and the Department of Justice moved to intervene in the states\u2019 water fight and aggressively staked a claim on behalf of tribes. Tribal water rights were \u201cprior and superior\u201d to all other water users in the basin, even states, the federal government argued.

<\/P>Western states were apoplectic.

<\/P>Arizona Gov. John Howard Pyle quickly called a meeting with Brownell to complain, and Western politicians hurried to Washington, D.C. Under political pressure, the Department of Justice removed the document four days after filing it. When Pyle wrote to thank the attorney general, he requested that federal solicitors work with the state on an amended version. \u201cTo have left it as it was would have been calamitous,\u201d Pyle said.

<\/P>The federal government refiled its petition a month later. It no longer asserted that tribes\u2019 water rights were \u201cprior and superior.\u201d

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The Navajo Nation Council is 100 years old this year<\/p>\n\t\t<\/a>\n\t<\/div>\n\t

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<\/P>\r\nWhen details of the states\u2019 meeting with the attorney general emerged in court three years later, Littell, the Navajo Nation\u2019s attorney, berated the Department of Justice for its \u201cequivocating, pussy-footing\u201d defense of tribes\u2019 water rights. \u201cIt is rather a shocking situation, and the Attorney General of the United States is responsible for it,\u201d he said during court hearings.

<\/P>Arizona\u2019s legal representative balked at discussing the meeting in open court, calling it \u201cimproper.\u201d

<\/P>Experts told ProPublica and High Country News that it\u2019s impossible to quantify the impact of the federal government\u2019s failure to fully defend tribes\u2019 water rights. Reservations might have flourished if they\u2019d secured water access that remains elusive today. Or, perhaps basin tribes would have been worse off if they had been given only small amounts of water. Amid the overt racism of that era, the government didn\u2019t consider tribes capable of extensive development.

<\/P>Jay Weiner, an attorney who represents several tribes\u2019 water claims in Arizona, said the important truth the documents reveal is the federal government\u2019s willingness to bow to states instead of defending tribes. Pulling back from its argument that tribes\u2019 rights are \u201cprior and superior\u201d was but one example.

<\/P>\u201cIt\u2019s not so much the three words,\u201d Weiner said. \u201cIt\u2019s really the vigor with which they would have chosen to litigate.\u201d

<\/P>Because states succeeded in spiking \u201cprior and superior,\u201d they also won an argument over how to account for tribes\u2019 water use. Instead of counting it directly against the flow of the river, before dealing with other users\u2019 needs, it now comes out of states\u2019 allocations. As a result, tribes and states compete for the scarce resource in this adversarial system, most vehemently in Arizona, which must navigate the water claims of 22 federally recognized tribes<\/a>.

<\/P>In 1956, W.H. Flanery, the associate solicitor of Indian Affairs, wrote to an Interior Department official that Arizona and California \u201care the Indians\u2019 enemies and they will be united in their efforts to defeat any superior or prior right which we may seek to establish on behalf of the Indians. They have spared and will continue to spare no expense in their efforts to defeat the claims of the Indians.\u201d

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Navajo Nation statement on the Supreme Court of the United States opinion of Arizona, ET AL V. NAVAJO NATION WINDOW ROCK \u2014 Navajo Nation President Buu Nygren and Speaker of the 25th Navajo Nation…<\/p>\n\t\t<\/a>\n\t<\/div>\n\t

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Western States Battle Tribal Water Claims<\/div> As arguments in the case continued through the 1950s, an Arizona water agency moved to block a major farming project on the Colorado River Indian Tribes\u2019 reservation until the case was resolved, the newly uncovered documents show. Decades later, the state similarly used unresolved water rights as a bargaining chip, asking tribes to agree not to pursue the main method of expanding their reservations in exchange for settling their water claims<\/a>.

<\/P>Highlighting the state\u2019s prevailing sentiment toward tribes back then, a lawyer named J.A. Riggins Jr. addressed the river\u2019s policymakers in 1956 at the Colorado River Water Users Association\u2019s annual conference. He represented the Salt River Project \u2014 a nontribal public utility that manages water and electricity for much of Phoenix and nearby farming communities \u2014 and issued a warning in a speech titled, \u201cThe Indian threat to our water rights.\u201d

<\/P>\u201cI urge that each of you evaluate your \u2018Indian Problem\u2019 (you all have at least one), and start NOW to protect your areas,\u201d Riggins said, according to the text of his remarks that he mailed to the Bureau of Indian Affairs.

<\/P>Riggins, who on multiple occasions<\/a> warned of \u201c\u2018Indian raids\u2019 on western non-Indian water rights,\u201d later lobbied Congress on Arizona\u2019s behalf to authorize a canal to transport Colorado River water to Phoenix and Tucson<\/a>. He also litigated Salt River Project cases as co-counsel with Jon Kyl, who later served as a U.S. senator. (Kyl, who was an architect of Arizona\u2019s tribal water rights strategy, told ProPublica and High Country News that he wasn\u2019t aware of Riggins\u2019 speech and that his work on tribal water rights was \u201cbased on my responsibility to represent all of the people of Arizona to the best of my ability, which, of course, frequently required balancing competing interests.\u201d)

<\/P>While Arizona led the opposition to tribes\u2019 water claims, other states supported its stance.

<\/P>\u201cWe thought the allegation of prior and superior rights for Indians was erroneous,\u201d said Northcutt Ely, California\u2019s lead lawyer in the proceedings, according to court transcripts. If the attorney general tried to argue that in court, \u201cwe were going to meet him head on,\u201d Ely said.

<\/P>When Arizona drafted a legal agreement to exclude tribes from the case, while promising to protect their undefined rights, other states and the Department of the Interior signed on. It was only rejected in response to pressure from tribes\u2019 attorneys and the Department of Justice.

<\/P>McMillen, the historian who compiled the documents reviewed by ProPublica and High Country News, said they show Department of Justice staff went the furthest to protect tribal water rights. The agency built novel legal theories, pushed for more funding to hire respected experts and did extensive research. Still, McMillen said, the department found itself \u201cflying the plane and building it at the same time.\u201d

<\/P>Tribal leaders feared this would result in the federal government arguing a weak case on their behalf. The formation of the Indian Claims Commission \u2014 which heard complaints brought by tribes against the government<\/a>, typically on land dispossession \u2014 also meant the federal government had a potential conflict of interest in representing tribes. Basin tribes coordinated a response and asked the court to appoint a special counsel to represent them, but the request was denied.

<\/P>So too was the Navajo Nation\u2019s later request that it be allowed to represent itself in the case.

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