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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
We had to get there early.
Narrator
Jolynn Ashley is the chair of the Navajo Water Rights Commission. She traveled thousands of miles from the reservation to be there. She and the others came to fight for justice and equality. But time will tell if they get either. As Jolynn arrived, she was guided into a line of people on the left side of the steps.
Jolynn Ashley
Then to the right, there was another line on the other side of the building. People who just spectators or tourists could come and get a ticket, but they had to get back in line.
Narrator
Jolynn and her colleagues were not sightseers. They didn't need to wait for a ticket. They had assigned seats in the courtroom, many dressed to represent where they came from. The women wore traditional Navajo three tiered skirts and lots of silver and turquoise jewelry.
Jolynn Ashley
When we finally started making our way in, of course, you know, we went through security and so we had to take off all our jewelry.
Narrator
Inside the Supreme Court building, they were told to put their belongings in lockers.
Jolynn Ashley
So you walk in and you see all these different glass enclosed cases, and it's just history. By then we were standing there and we had no phones. So it's just, you know, would have been nice to take some pictures in there, but we couldn't take pictures.
Narrator
The group walked through the halls until they reached the courtroom. Jolynn found her seat in the second row. And then the justices entered and we.
Jolynn Ashley
Had to stand when they came and then sit quietly.
Narrator
All around her were elder Navajo statesmen, people she grew up hearing about. The current Navajo president, Boo Nygren, was to her right.
Jolynn Ashley
Oh my God, this is historic. You know, I'll probably never be here again. And I was at awe, but at the same time I was like, okay, I'm here. I gotta focus. I gotta listen and take it all in. And it was. I mean, that's the highest court of the United States. And we were there on behalf of the Navajo Nation.
Narrator
This moment was a long time coming. Since 1868, the tribe had been held in a kind of limbo. In their treaty with the federal government. They had been promised a permanent homeland. In return, the Navajo had also made promises. They would give up their nomadic lifestyles and become farmers on the reservation. But in all those years since the reservation was established, many of the Navajo had been without easy access to water. Is the US Government required to help them get it? This was the question at the heart of the Supreme Court case that Jolynn and her peers had come to Washington to witness. In this episode of Reclaimed the Lifeblood of Navajo Nation, we'll be uncovering the layers of racism and mistreatment and a disappearing memo that led to the Navajo seeking justice in the highest court in the land. We will hear argument this morning in case 2114 84, Arizona versus the Navajo Nation, and the consolidated case.
T-Mobile Representative
Mr. Liu.
Frederick Liu
Thank you, Mr. Chief Justice.
Narrator
This is episod 2 prior and superior. This case in front of the Supreme Court was the result of decades of unease that came after the Colorado Compact was signed. It wasn't just the Navajo Nation that didn't like the deal. Lawmakers in Arizona hated it from the start. And that set off a dramatic history altering chain of events. Now, just to recap, when the Colorado Compact was signed by state route representatives in 1922, it divided the states in the river basin into two categories, upper basin and lower basin. They split the river down an imaginary line and gave 7.5 million acre feet of water to each group of basin states. But the agreement overestimated the amount of water that was available to share. And it didn't actually specify how much of it each individual state would get. That became a problem pretty quickly. California already had a booming agricultural industry, especially in an area on the border of Arizona called the Imperial Valley. One hundred years ago, the land was fertile, but water was already a problem. Every year, the valley cycled between drought and flooding.
Christian McMillan
For untold centuries, the turbid waters of the Colorado river battered their way through the forbidding canyons of its 1,700 mile course, traversing the arid Southwest. For the most part little known except to the native Indians and a few parties of intrepid explorers.
Narrator
California lawmakers decided that to secure their state's economic success, the river needed to be tamed, controlled. They sought federal funding for a series of massive water infrastructure projects. The government would fund canals that diverted the Colorado river in manageable amounts to the Imperial Valley. It would secure California's position as an agricultural power. The funding would also build a dam right on the border between Arizona and California.
Christian McMillan
And so Boulder Dam stands today, a modern colossus shouldering the rock ribbed walls of Black Canyon, stemming and controlling the floods, and bending the will of a hitherto ungovernable stream, the Colorado river, to perform the fruitful tasks of a civilization rapidly invading the limits of its last frontier.
Narrator
As this Department of interior film from 1937 explains, the project changed the entire course of the river to California's advantage. Arizona had signed the Colorado Compact, but its legislature was not happy with how things were going. Arizona had to share its half of the Colorado river with surrounding states, and it had no assurance that California wouldn't take all the water in the lower basin for itself. Arizona's politicians not only withdrew their support for the compact, they sued the state of California, asking the Supreme Court to decide exactly how much water each state was entitled to.
Christian McMillan
It does become the longest running case in Supreme Court history.
Narrator
This is Christian McMillan, a history professor at the University of Virginia. He says that in 1952, the two states were squared up and ready to fight. But there was someone else thinking about stepping into the ring. The federal government. The Supreme Court invited them to join the case because they had assets that would be affected by any ruling on the river. They had water rights in lands. They managed lands like national parks, including the Grand Canyon, national forests and federal reservations.
Christian McMillan
And by far the largest federal interest is American Indian tribes. And so that makes the states realize, oh boy.
Narrator
Arizona lawmakers were worried about what it would mean for the federal government to step in because Most of the 25 tribes in the lower river basin were in Arizona. And the state had brought the case to get more water, not to be forced into sharing it with even more parties. Christian says that this concern that indigenous groups might get their claims to water recognized hadn't really surfaced before for one simple reason.
Christian McMillan
Native people wouldn't be able to bring a suit on their own behalf anyway. Their so called guardian would have to do it, which would be the US Government. Once Arizona versus California came around, that anxiety, I think, emerged in the form of a oh, we might have to deal with all these Indian claims.
Narrator
These anxieties began to play out in the public sphere. In 1957, a lawyer from Arizona gave a speech at a forum about water issues in Las Vegas. His name was J. A. Riggins Jr. He was the attorney representing the Salt River Project, A series of dams that diverted water from the salt river to feed the growing city of Phoenix. And he was convinced that indigenous access to water would come at a cost to everyone else.
Christian McMillan
He gave a speech called the Indian threat to our water rights, in which he warned, quote, that we are dealing with a large, well organized group with an intelligent leadership which has no hesitancy whatsoever in depriving our existing non Indian areas of the water upon which the civil civilization and economy of the west has been based.
Narrator
Riggins was essentially issuing a warning. We have built our whole livelihoods on this water, and now the tribes are coming to steal it. In his handwritten notes on this speech, which Christian unearthed, Riggins wrote, quote, I urge that each of you evaluate your Indian problem. You all have at least one, and start now to protect your areas. Arizona began framing the tribe as the enemy, even though the federal government appeared to not have consulted with tribal leaders while weighing whether or not to join the case. Eventually, Arizona's worst fears came true. The federal government would join the case and they would represent the tribes. But that involved some serious work.
Christian McMillan
It required a tremendous amount of research to determine what Indians were entitled to, what their share of the river was that had never really been looked at before in any detail, what the origins of their claims were, et cetera, and so forth. And the state knew that would take a very long time. And in fact, it did.
Narrator
The court had to make a decision not just about the tribal water claims, but also the original dispute between Arizona and California. There's a special expert for complex, highly technical cases like these called a special master.
Christian McMillan
So he heard testimony that amounts to about 30ish thousand pages of trial transcript. Hundreds and hundreds and hundreds of boxes of evidence.
Narrator
By early 1961, nine years after the case first began, the special master had worked his way through this mountain of evidence and produced a 450 page report with his recommendations for the supreme court. By and large, he sided with Arizona. And in 1963, the Supreme Court used the special master's recommendations as a blueprint in their ruling.
Christian McMillan
Arizona was thrilled that they, I mean, they effectively won. They got the amount of water that they had been asking for, which then allowed congress to authorize what was called the Central Arizona project, which became one of the biggest infrastructure projects in American history that allowed Arizona to tap into the Colorado river and then use a series of canals to get it around the state. And it's what allowed for Arizona to really kind of boom.
Narrator
The Special master also made a recommendation for the federally recognized tribes living in the lower Colorado basin.
Christian McMillan
He decides to throw out, so to speak. All native claims to the river except the five tribes on what's called the main stream, the main stem of the river.
Narrator
After everything, only five tribes had their water rights quantified by the ruling. Only they would be able to act on their water claims for their reserved lands. Fort Mojave, Ketchin, Chimawevy, Colorado River, Indian tribes and Cocopah. The other tribes rights were not denied, but just to be determined. And so the Navajo were back in a state of limbo yet again. What most people don't know is that this case could have gone very differently. There was a moment where Navajo water rights were almost within the tribe's grasp. But it's been buried in the archives for decades until Professor McMillan dug it up.
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Narrator
CT mobile.com in his work as a historian, Christian McMillan specializes in legal cases involving tribes. In 2022, he was digging through the archives of the association on American Indian affairs and he found a folder full of papers all relating to the Arizona vs California Supreme Court case.
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.
Narrator
It was in that file that he made a surprising discovery.
Christian McMillan
But what stopped me and what got me really interested in it, just because it was so strange, was that an element of the case was covered in the New York Times in a really lengthy article. Newspapers don't generally cover American Indians, then or now, in any great detail.
Narrator
The article was from 1953, a decade before the actual ruling, back when the federal government was just invited to weigh in by the Supreme Court. One detail stood out to Christian.
Christian McMillan
The Department of Justice in November filed their petition for intervention Monday, November 2, 1953, that Indian rights are prior and superior to all others. And that struck me as kind of, you know, if not radical, at least.
Narrator
Novel, prior and superior to all others. In other words, the Federal Government was arguing that tribal rights had the priority over California, over Arizona, everyone. And it set up a mystery for Christian. Why did the government come out swinging so hard in support of tribal water rights? And why had he never heard about it before? Let's go back to 1953 for a second, the year the article was released. The year is important because it's a defining moment in our own history, one that's rarely talked about. So 1953, the government has just been invited to join the case by the Supreme Court, and they're thinking about it. But in the rest of the country, there was something much bigger happening, a total political sea change in how the federal government thought about its relationship with Indigenous people. To summarize it, termination was a disaster politically, economically, culturally. This is a 1976 documentary where advocates of the Menominee tribe of Wisconsin talked about something called the Termination Era and what it had done to their lives. And here's what I mean by Termination Era. After nearly a century, the US Government began terminating their responsibility to federally recognized tribes. Between 1953 and 1968, the United States rescinded their recognition of over 100 tribes. This meant the treaties that had been signed were liquidated. At its most extreme, termination was about aggressive assimilation. Without reservations, native tribes would be forced to be part of mainstream American culture. I remember one old Indian man in our traditional village of Zoar telling me that one day he was an Indian and the next day he was not. To further push tribes from their land, the federal Bureau of Indian affairs started a voluntary relocation program. They funded one way tickets for tribal citizens to leave their reservations and move to cities. They subsidize housing and education. They told interested participants that a quote, better life waits for them if they have the courage to request relocation. But the housing was unsuitable, and many found urban life unfamiliar and alienating. Relocation weakened tribal links, split family units and stopped tribes from passing down their traditional practices and languages. It was a type of quiet administrative murder. But it didn't end there. Keeping a tribe from asserting its water rights would fall right in line with these other termination policies. And that's what the government was getting ready to do.
Christian McMillan
It was going in a determinedly pro termination direction. There were forces at Interior actively working to come up with a stipulation to keep Indians out of the case.
Narrator
The Secretary of the Interior had met with the states of Arizona and California and promised them the government would not be intervening on the tribe's behalf. The department wrote a recommendation saying the case should exclude the tribes altogether. But here's the thing. The Department of Interior was not a part of the lawsuit. They were and are the federal body that manages tribal trust assets, including land, coal and yes, water. They are also the home of the Bureau of Indian Affairs. They could advise on the lawsuit and they could have an opinion. But it was the Department of Justice who was invited into the case. And all that the DOJ had to determine was, do we have a legal responsibility to the tribes? And they did have a legal precedent that guided them. It was called the Winter's Doctrine, a principle that was established in a Supreme Court ruling for another tribe. It said that land without water is not a homeland, that reservations had implied water rights. The entire future of the tribes hung between the push and pull, between two ideas being played out in Washington. Justice felt they had a legal obligation to tribes. Interior didn't.
Christian McMillan
Attorney General submits this brief that Indian water rights are prior and superior to all others.
Narrator
Backed up by the Winter's Doctrine, the Attorney General wrote a recommendation on Monday, November 2. He said that actually Arizona and California should be the ones asking the tribes, how much water should we get and not the other way around. And that's the story the New York Times ran in the fall of 1953, the one that surprised Christian because he had never heard about the government taking this stance. And he was about to understand why.
Christian McMillan
On Friday, just four days later, an unnamed person at the Department of Justice late on a Friday afternoon. And it all sounds very cloak and dagger, but this is really what happened late on a Friday afternoon, just before the court closed. Went to the court and had the clerk of the court retract the petition for intervention the Attorney General had just submitted on Monday. And I wondered, what on earth is going on?
Narrator
Christian wanted to know, why did the Department of Justice retract the memo? They went back on their decision to strongly support the tribe's claim to water. Water downed their stance, leaving the tribes vulnerable. But why?
Christian McMillan
These are just my highlights. I scan everything.
Narrator
Once Professor Christian McMillan discovered the disappearing memo, he began to do what historians do. Find a paper trail and dig for clues.
Christian McMillan
Like I have to. I've read everything in here. Then it's California State Archives. That's just one folder in the California State Archives. Carl Hayden Papers. Each of these is probably 500 pages.
Narrator
He began to request hundreds, thousands of documents relating to the Arizona vs. California case. What he was looking for was a smoking gun. The reason for the disappearing memo, which would have forcefully advocated for tribes rights. And in the depths of the National Archives, Christian found the evidence he was looking for letters that showed what was really going on inside the federal government. After seeing a draft of the memo, a secretary at the Department of Interior wrote a letter to their colleagues at justice to offer some friendly suggestions.
Christian McMillan
Well, you know, maybe you'd want to consider toning down the Indian claims. He wonders, quote, whether it might be possible to plead these Indian rights fully and adequately without the necessity of asserting, at least in the pleading, that they are prior to all rights on the river. Our lawyers, meaning lawyers at Interior, feel that you in the Attorney General's office have done a most excellent job in maintaining the neutrality, exactly as they hoped you would do on all issues except this one, meaning the Indian claims. So he's asking him to change the petition for intervention. At a minimum, downplaying the Indian rights in a convoluted fashion that I find sort of sadly amusing to read.
Narrator
As we know, the Department of Justice filed their petition anyway, and all hell broke loose. A group of Western governors happened to be meeting in Albuquerque that day. They began calling their contacts at the DOJ and asking what was going on. Some of the states sent their lawyers to Washington, D.C. to bring their complaints in person. And then the lawyer for California claimed that the entire Colorado Compact would be, quote, busted. The pressure on the Department of Justice externally and internally had the desired effect on those three offensive words, prior and superior. Which is why when the Department of Justice resubmitted their memo to court four days later, those words had vanished.
Christian McMillan
Once Indians realize that that's happened, they're furious and very worried. The National Congress of American Indians sent a resolution immediately to the Secretary of the Interior and the president and the Attorney General saying, my gosh, what have you done now?
Narrator
We just don't know if the stronger petition language would have made a difference in the court's decision. But what it shows is that the tribes, including the Navajo, were not having their interests represented adequately by the federal government. Once the states and the five tribes had their water amounts set by the court, the remaining 20 tribes in the lower basin were left in limbo with no water allocated for their use. And it was now clear the government was not going to act on their behalf. But the case ended right as native tribes were beginning to speak up about the damage done to their communities from the termination policies. Tribal members who were displaced to cities found each other. They staged protests and hosted gatherings. In 1978, the Navajo Nation hosted a big conference.
Christian McMillan
Quite remarkable, for example, was the recognition of Indian radical leader Russell means of aim by the Navajo host of the conference. Peter McDonald, one of the most conservative establishment tribal leaders. Our people need heroes. They deserve heroes. And they have heroes living ones too.
Narrator
The Navajo and other tribes were taking a greater role in advocating for themselves.
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. With the white world production of 25,000.
Narrator
The tribes wanted to assert their sovereignty. No more waiting for the US government to act on their behalf or choose not to. On the Navajo reservation, the tribe redefined themselves. Their tribal government fought for their rights and promoted self sufficiency. In 1969 they shed the word tribe and became the Navajo Nation. These moves towards self determination gave the tribe a legal pathway for getting their water rights. And they now had teams of lawyers to represent them. And so Beginning in the 1970s, the Navajo Nation sued for its share of the Colorado river and its tributaries. Just like in the beginning of Arizona versus California. Every user of the river, every business, every entity with a say in the case, all had to be contacted. Everyone's water usage had to be understood and evaluated against one another. The question of who was here first was obvious. But how much water they actually needed, that was difficult.
Jolynn Ashley
Gosh. That was first filed in 1978. So that's been a long time.
Narrator
Jolin Ashley was just a baby when the Navajo started their litigation process to sue for the water. And in her entire lifetime, the tribe has made little progress. That's why she was sitting in the Supreme Court hoping for a breakthrough after decades of waiting.
Christian McMillan
It's better over here.
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Frederick Liu
Thank you Mr. Chief justice and may it please the court. 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.
Narrator
The case in front of the Supreme Court in 2023 was not about the Navajos. Litigation for their rights to the Colorado River. But it was somewhat related. They were suing the federal government about something else, a breach of trust. They were arguing that the United States government had promised them a permanent homeland in their treaty, but the government hadn't actually done the work to make that happen. Breach of trust is a legal term, but it feels so right to apply it here. Trust was broken legally, yes, but also personally for many, many Navajo people. In court, the representative for the federal government, Frederick Lieu, went first in his opening statement to the justices, he said that all of the components of the reservation, the timber, the minerals, and, yes, the water, the Navajo has the right to all of them.
Frederick Liu
Each of those rights is a stick in the bundle that makes up the reservation. And when the Navajo reservation was originally established and later expanded, the Navajo Nation got all of those sticks, and it still possesses them today. There's no dispute about that. The dispute here is about something different.
Narrator
Liu argued that the federal government wasn't responsible for anything other than providing the land. You get the land, you get what comes with it, good or bad. And that's what the treaty says.
Frederick Liu
Whether the United States owes the Navajo Nation a judicially enforceable affirmative duty to assess the tribe's water needs, develop a plan to meet them, and then carry out that plan by building water supply infrastructure on the reservation. The answer to that question is no.
Narrator
A lot of the discussion returned again and again to the treaty, the document that allowed the tribe to return to their homeland. After the genocidal long walk. The judges picked and picked over the language of a 160-year-old document. The justices looked at the treaty as a contract and finally seemed to see the holes in it. My question Could I bring a good breach of state contract claim for someone who promised me a permanent home, the right to conduct agriculture and raise animals.
Christian McMillan
If it turns out it's the Sahara Desert?
Narrator
Last to speak was the attorney for the Navajo tribe, Shai Dovoretsky.
Shai Dovoretsky
Mr. Chief justice, it may please the court. The Senate ratified two treaties with the Navajo Nation. In the 1868 treaty, the United States promised the Navajos a permanent homeland. Both parties understood that in promising the Navajos their land, the United States was also promising them the water it needed to sustain life in the arid southwest.
Narrator
As the justices questioned Dovoretsky's argument, he went on to explain that what matters more than the treaty itself is what happened since it was signed. Time and time again, the US Government failed to act on the Navajo's behalf and failed to secure them water. Dovoretsky argued the US Government had trapped the Navajo in a horrible limbo. The Navajo were told they couldn't take action for themselves, but the US Government also wasn't taking action for them. The justices asked more questions. If the US Is responsible for getting the Navajo their water, where does that responsibility end? Are they on the hook for pipelines and treatment plants? Dovoretsky said, one thing at a time.
Shai Dovoretsky
Right now, there is no water even to pipe. That is what we are asking them to assess. How much water do we need and how is it going to be made available, but not how is it going to be piped across the reservation?
Narrator
At one point, Justice Kavanaugh quoted the position of the Department of Justice, which said, this isn't a matter for the court, that it should go to Congress for a resolution. Dovoretsky pushed back.
Shai Dovoretsky
We've been waiting half a century for the political branches to solve this problem for the nation. It hasn't happened.
Narrator
Oral arguments closed. Jolynn and the Navajo delegation filed outside. They took pictures on the front steps, and those like Jolynn, who traveled specifically to watch the case, went back home. And then they waited. Two months later, in June of 2023, the court handed down their decision. It was 5, 4. The majority opinion was delivered by Justice Brett Kavanaugh. In it, he said that the U.S. government's responsibility to the Navajo does not include water as a contract. The treaty did not promise infrastructure or even helping the tribe make a plan. Justice Clarence Thomas went a step further in his concurring opinion. He slapped the hand of the circuit court that had heard the case before it went to the Supreme Court. He suggested that it sets a dangerous precedent for tribes to expect more from their relationship with the United States. The dissenting opinion was written by Justice Neil Gorsuch. It was scathing twice as long as Kavanaugh's majority opinion. It opened today. The court rejects a request the Navajo Nation never made. He took a tour through the history books, the treaty of 1868, but also the Long Walk, the internment at Bosque Redondo, and the many failed attempts of the tribe to end their insecurity around water. He compared the Navajo experience with that of a person at the dmv. They've had this frustrating experience of waiting patiently in line only to get to the front and be told they've been in the wrong line all along and should join another. Gorsuch asked, where did the Navajo go from here? To Jolynn Ashley, who traveled 1700 miles to be there. It was disappointing, but she said she could still see some progress in the court's decision.
Jolynn Ashley
I think that even though we didn't get the outcome, you know, stating that they were in support of the nation, it still was a good discussion where it opened up questions to where we had some options and possible doors that were kind of opened a little bit for us. You know, what was unfortunate was that the media spun it to where we lost our water rights. Oh, we lost all our water rights. No, we didn't. It was unfortunate that it didn't, you know, that we didn't get the full votes. We were just off by one.
Narrator
Some of the Navajo delegation felt almost positive about the result. They said when they first started out, they expected the ruling to be 8:1 at best. 5:4 felt like progress. It felt like being taken seriously. Also, this case wasn't the only way the Navajo had been fighting for their water rights. The lawsuits they filed in the 1970s are still chugging along, but they're years or even decades from a result. So the Navajo have been secretly pursuing their own deals with the states around them. That's why litigation isn't the only avenue they're taking. The tribe has begun the process of settling their water claims with their neighbors. Not a little bit, not a portion. They're looking to settle all of their water rights forever. But this would take agreement from everyone. The states, the tribe, and congress. Negotiations have been going on in secret for months, and a deal could be close. But decades of mistrust don't disappear overnight.
Frederick Liu
We asked the federal government stand up.
Narrator
For us, and they did not.
T-Mobile Representative
So we need to stand up for ourselves.
Christian McMillan
You know, we're never negotiating from a status of advantage or even parity. You know, going back to the treaty of 1868, it's always we're under duress when we're negotiating.
Jolynn Ashley
That's what we need to be standing.
Narrator
On as a serpent in that nation.
Jolynn Ashley
Not be told and pushed around like we always have been.
Narrator
Reclaimed. The lifeblood of Navajo Nation is an original production of ABC Audio. The series was hosted by Me, Charlie Ed City. It was written by Madeline Wood. This series was produced by Madeline Wood, Camille Peterson, Kiara Powell and Amira Williams, with help from Emily Schutz and Marwa Muwaki. Edited by Gianna Palmer. Our cultural consultant was Heather Tanana. Arielle Chester is our social producer. Our supervising producer is Susie Liu. Music and mixing by Evan Viola. Special thanks to Liz Alessi and Lakia Brown. Josh Cohan is our director of podcast programming. Laura Mayer is our executive producer. And big thanks to my mom, Christine Howard and my aunt Arlene Howard.
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Reclaimed: The Lifeblood of Navajo Nation - Episode 2: 'Prior and Superior'
Released on November 18, 2024, by ABC News
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.
[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.
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]
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 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.
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 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.
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]
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]
"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.
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]
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.