Protect Tribal Water Rights for Future Generations As the preexisting sovereigns of the United States, Tribal Nations have a unique relationship with the federal government. This relationship has often been described as the “trust relationship” between Tribal Nations and the U.S. The three seminal Indian law cases known as the Marshall Trilogy acknowledge that a special relationship exists between tribes and the U.S. and it has continued ever since. The latest United States Supreme Court (“SCOTUS”) decision put this relationship in jeopardy. The majority ignores the history of starvation imposed upon the Navajo at Bosque Redondo by the U.S. It was only under duress that the Navajo Nation agrees to sign the 1868 treaty. Even faced with the threat of further deprivation, the Nation refused to go anywhere but to their traditional ancestral homelands. Justice Thomas says the only trust that exists is the " trust that Indians have placed in the Federal Government ." This decision adds to the long history of broken promises which includes the Department of the Interior failing to uphold the promises of livable homelands by ensuring tribal water rights are fully fulfilled. The majority also fails to acknowledge the changes that have occurred in the intervening years such as Hoover dam which created Lake Mead and altered the amount of water available naturally in the Lower Basin. As recognized in NCAI Resolution # ABQ-10-035 , “the federal government has a long history of building dams and related water projects that impact Indian Nation waterways and lands ”. These dams have had dramatic and devastating effects on our Indian Nations. Unfortunately, only Justice Gorsuch, writing for the minority, recognized his history and the impact of these projects on the Navajo lands. On June 22, 2023, the SCOTUS delivered its decision in Arizona v Navajo Nation . After decades of uncertainty and neglect, the Navajo Nation asked the federal courts to adjudicate what water rights were held in trust by the U.S. on its behalf. In answering this question, the Court, as it has in other recent decisions, chose to erode tribal rights and ignore prior Supreme Court precedents. In his concurring opinion Justice Thomas contends both the trust responsibility and the canons of construction stating that there is no basis or support for them in the federal system. As Justice Thomas puts it the only trust that exists is the “ trust that Indians have placed in the Federal Government. ” Tribal Nations call on the Biden Administration and the Congress to uphold the promises the U.S. made through the treaties provide for adequate potable water to sustain our communities by: • finally adjudicating all water rights held in trust for Tribes by the Secretary of the Interior in an amount that guarantees the future viability of our communities; • recognizing that Tribes must be treated equally with States in the apportionment of water rights in their respective regions; • engage in meaningful consultation with Tribal Nations before engaging in any project or rule change that has the potential to impact tribal water rights.
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