Reclaimed: The Lifeblood of Navajo Nation - Episode 2: 'Prior and Superior'
Released on November 18, 2024, by ABC News
Introduction
In Episode 2 of the acclaimed podcast series "Reclaimed: The Lifeblood of Navajo Nation," host and journalist Charly Edsitty delves deep into the enduring struggle of the Navajo Nation to secure their rightful access to water. Titled "Prior and Superior," this episode meticulously traces the historical oppression, legal battles, and the resurgence of Navajo sovereignty in the quest to reclaim their essential lifeblood—water.
A Historic Stand at the Supreme Court
[00:34] Narrator:
On the morning of March 23, 2023, a group of about a dozen Navajo delegates, lawyers, and leaders arrived at the steps of the Supreme Court. Four words were carved into the marble above their heads: "Equal justice under law."
Jolynn Ashley, chair of the Navajo Water Rights Commission, was among those present. Her journey from the reservation to the Supreme Court symbolizes the tribe's relentless pursuit of justice.
[00:52] Jolynn Ashley:
"We had to get there early." [00:52]
Upon arrival, the delegation was donned in traditional Navajo attire, signifying their cultural heritage and the gravity of their mission.
[02:37] Narrator:
In this episode, we uncover the layers of racism and mistreatment that have historically excluded the Navajo from their water rights, spotlighting a pivotal case before the Supreme Court: Arizona versus the Navajo Nation.
Historical Context: The Colorado Compact and Its Aftermath
The Colorado Compact of 1922 was a watershed moment, dividing the Colorado River basin states into upper and lower basins, each allocated 7.5 million acre-feet of water. However, this agreement overestimated available water and failed to specify individual state allocations, leading to prolonged disputes.
[06:02] Narrator:
California's aggressive pursuit to control the Colorado River, epitomized by the construction of the Boulder Dam, secured its agricultural dominance but left states like Arizona grappling with uncertainty and scarcity.
Arizona's dissatisfaction culminated in a lawsuit against California, igniting one of the longest-running cases in Supreme Court history.
[07:39] Christian McMillan, History Professor:
"It does become the longest running case in Supreme Court history." [07:39]
The Disappearance of a Crucial Memo
Amidst the legal tussle between Arizona and California, a significant yet overlooked chapter involved the federal government's stance on Indigenous water rights.
[14:50] Christian McMillan:
"They had a rather large file on the case. And I just thought, oh, that's interesting. I'm just curious what's in there." [14:50]
While sifting through archival documents, McMillan unearthed a groundbreaking memo from 1953 where the Department of Justice asserted that "Indian rights are prior and superior to all others."
[15:33] Christian McMillan:
The Department of Justice in November filed their petition for intervention... that Indian rights are prior and superior to all others. And that struck me as kind of, you know, if not radical, at least." [15:33]
This bold assertion challenged the prevailing government policies aimed at assimilating Indigenous populations and undermining their sovereignty.
The Termination Era and Its Impact on the Navajo Nation
The 1950s marked the onset of the Termination Era, a federal policy aimed at assimilating Native Americans by terminating their recognition and dissolving tribal sovereignty.
[18:00] Narrator:
Termination policies led to the displacement of tribes, the fragmentation of families, and the erosion of cultural practices, leaving tribes like the Navajo in a precarious state of limbo.
Arizona's lawsuit against California gained complexity as the federal government, influenced by these assimilationist policies, initially opposed recognizing tribal water rights, exacerbating tensions.
Resurgence of Tribal Advocacy and Legal Pursuits
In response to systemic neglect, the Navajo Nation redefined its identity and governance structures to spearhead their fight for water rights.
[26:10] Christian McMillan:
"And here on the Navajo reservation where the tribes are meeting to discuss those disputes over land and to fight proposed legislation they consider anti Indian, there's visible evidence of trouble." [26:10]
The tribe shed the term "tribe" to become the "Navajo Nation" in 1969, emphasizing self-determination and establishing a legal framework to pursue water rights through litigation.
The 2023 Supreme Court Case: Arizona vs. Navajo Nation
The focal point of the episode is the 2023 Supreme Court case where the Navajo Nation sued the federal government for breaching its trust by failing to ensure their access to water as promised in treaties.
[28:35] Frederick Liu, Federal Representative:
"When a reservation is established, that reservation isn't just the land. It's also a right to the timber on the land. A right to the minerals below the surface and under winter's a right to water for the reservation." [28:35]
Liu argued that the treaty guaranteed the Navajo rights to water, but contended that the federal government's obligations did not extend to building infrastructure or developing water supply plans.
In contrast, Shai Dovoretsky, representing the Navajo Nation, emphasized the United States' failure to act on its treaty obligations:
[31:23] Shai Dovoretsky:
"The United States government had promised the Navajos a permanent homeland in their treaty, but the government hadn't actually done the work to make that happen." [31:23]
During oral arguments, Justice Kavanaugh referenced the federal stance that the case was not justiciable, suggesting it should be resolved legislatively. However, Dovoretsky countered that decades of inaction left the Navajo with no other recourse.
Supreme Court Decision and Its Aftermath
The Supreme Court delivered a narrow 5-4 decision against the Navajo Nation, with Justice Kavanaugh asserting that the federal government's contractual obligations did not encompass active measures to secure water for the tribe.
[32:32] Shai Dovoretsky:
"We've been waiting half a century for the political branches to solve this problem for the nation. It hasn't happened." [32:32]
Justice Neil Gorsuch, in his dissenting opinion, passionately advocated for recognizing the tribe's historical and ongoing struggles, criticizing the majority for overlooking the punitive impacts of broken treaties.
[34:00] Justice Neil Gorsuch (Dissent):
“The court rejects a request the Navajo Nation never made...where the Navajo went from here?” [34:00]
Despite the ruling, Jolynn Ashley and the Navajo delegation found a silver lining in the approval of the Supreme Court's discussion, viewing the narrow majority decision as incremental progress.
[35:19] Jolynn Ashley:
"I think that even though we didn't get the outcome... it was just off by one." [35:19]
Moving Forward: Negotiations and Self-Advocacy
Unbowed by the setback, the Navajo Nation continues to pursue both litigation and direct negotiations with neighboring states to secure comprehensive water rights.
[36:03] Narrator:
Negotiations are underway to settle all water claims permanently, requiring consensus from states, the Navajo Nation, and Congress. However, the deep-seated mistrust stemming from decades of broken promises poses significant challenges.
Christian McMillan highlights the ongoing struggle for equitable negotiations:
[37:21] Christian McMillan:
"We're never negotiating from a status of advantage or even parity." [37:21]
Jolynn Ashley emphasizes the imperative for the Navajo to assert their sovereignty and no longer be marginalized:
[37:32] Jolynn Ashley:
"Not be told and pushed around like we always have been." [37:32]
Conclusion
"Reclaimed: The Lifeblood of Navajo Nation" offers a profound exploration of the Navajo Nation's enduring fight for water rights, interweaving historical injustices with contemporary legal battles. Episode 2, "Prior and Superior," not only sheds light on the intricate legalities surrounding water rights but also celebrates the resilience and unwavering determination of the Navajo people to reclaim their sovereignty and secure their future.
Notable Quotes
-
Jolynn Ashley:
"We had to get there early." [00:52]
"I think that even though we didn't get the outcome... it was just off by one." [35:19] -
Christian McMillan:
"Native people wouldn't be able to bring a suit on their own behalf anyway." [08:59]
"We've been waiting half a century for the political branches to solve this problem for the nation. It hasn't happened." [32:32] -
Shai Dovoretsky:
"The United States government had promised the Navajos a permanent homeland in their treaty, but the government hadn't actually done the work to make that happen." [31:23] -
Frederick Liu:
"Each of those rights is a stick in the bundle that makes up the reservation." [28:35]
Production Credits
- Host: Charly Edsitty
- Written by: Madeline Wood
- Produced by: Madeline Wood, Camille Peterson, Kiara Powell, Amira Williams
- Edited by: Gianna Palmer
- Cultural Consultant: Heather Tanana
- Social Producer: Arielle Chester
- Supervising Producer: Susie Liu
- Music and Mixing: Evan Viola
- Director of Podcast Programming: Josh Cohan
- Executive Producer: Laura Mayer
Special thanks to Liz Alessi, Lakia Brown, Christine Howard, and Arlene Howard.
This detailed summary captures the essence of Episode 2, providing an insightful overview that is both comprehensive and accessible to new listeners.