Pien Huang of NPR talks with Stanford Law School professor Gregory Ablawski about a series of cases the Supreme Court will hear on Monday that involve the Navajo Nation’s water rights.
PIEN HUANG, HOST:
Tomorrow, the Supreme Court will hear arguments in the Navajo people’s water rights case. The question is, what does the federal government owe tribal people when it comes to water and access to it to drink and grow food? This is a rather complex set of questions that go far back in time and may change the position of the Navajo in the future. We called Gregory Ablavsky to help sort it out. He is a professor at Stanford Law School, where he teaches courses on federal Indian law. Greg, welcome. Thanks for joining us.
GREGORY ABLAVSKY: Thank you for inviting me.
JUAN: So, Greg, tomorrow the Supreme Court is hearing a case related to the water needs of the Navajo people. Help us understand what is at stake in this case.
ABLAVSKIY: When the federal government creates a First Nations reservation, by law since 1908 it also implicitly allocates water rights for the purposes of supporting agriculture and supporting the people who are going to live on the reservation. Twenty years ago, the Navajo Nation sued the federal government as the country’s trustee, alleging that the federal government was obligated to provide water to the Navajo Nation from the mainstream of the Colorado River, which runs right next to the reservation. . So the question in this case is whether the federal government, as a fiduciary, is really obligated – it has a legally enforceable trust obligation to provide this water to find out how much water is actually owed to the Navajo people from the Colorado River. .
JUAN: Could you just explain what a commitment of trust really means? Sounds like one of those legal terms that, you know, I definitely haven’t heard before.
ABLAVSKY: If we think about the usual trust law, someone can create a trust, for example, for their grandchildren or children. Or, if you just have a regular trust, there is a trustee who manages the benefits for the beneficiary. So, you know, in this case, the beneficiary would be the grandchildren. And there is a whole set of laws – the law on trusts – that applies in such circumstances. The argument here is whether the federal government is the same – has it established this trust in relation to the Navajo and other indigenous peoples? In other words, is the federal government the trustee and the Navajo people the beneficiary so that the normal principles of trust law can apply? Thus, usually the beneficiary can sue the trustee for accounting or for mismanagement of the trust body, as it is called – the body of the trust, which in this case will be water. And so the question arises, do these ordinary principles of trust law apply in this case as well?
HUANG: And, Greg, what’s the Navajo water situation right now? You know, it’s the Navajo people’s argument that they just don’t have enough of it?
ABLAVSKII: I mean, the Navajo water situation is pretty grim. A very high percentage—almost a third, I think—of Navajo homes do not have running water. And that was a major factor that contributed to the extreme COVID outbreak they faced there. Thus, the nation argues rather emphatically that the water situation there is extreme. And, of course, as we have all seen, the entire Southwest is experiencing a terrible drought. The water level in the Colorado River dropped sharply. And so the nation, I think — I mean, they initiated this lawsuit a long time ago, but the nation has long been concerned that its citizens have access to reliable, clean, safe water. And that hasn’t happened yet, largely due to a lack of resources.
HUANG: As you mentioned, this particular case is about accessing water from the Colorado River during a drought. You know, the water levels in the rivers are dropping, you said. So, help us understand what are the arguments for each side of the case?
ABLAVSKI: So the argument for the Navajo moving forward is that because of this 1908 decision called “Winters” that said the federal government was implicitly reserving water rights, that decision created an obligation to trust management by the federal government, which can be secured in court. The argument on the other hand, made by the federal government, as well as several states that intervened, is in fact that this decision is not enough to actually create a enforceable trust obligation.
JUAN: Before we let you go, we know that there will be oral arguments tomorrow, so what are you going to pay attention to when discussing the case?
ABLAVSKI: I mean, I think in the debate tomorrow I’m going to be looking for how the judges understand this relationship between the federal government and the native peoples and whether they think this 1908 decision, combined with the Navajo treaties, is enough to create this legally enforceable trust obligation. It will also be interesting to see how much they dive into some of the technical aspects of water law and trust law in this case, and how concerned they are with the kind of broader issue of the difficult water situation facing the US West. right now.
JUAN: It was Professor Gregory Ablasky from Stanford Law School. Professor Ablavsky, thank you.
ABLAVSKY: Thank you very much.
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