Ordinarily I might preface a post like this with a “not poverty law” caveat. But I do think this case has a lot to do with poverty and poverty law. The Supreme Court agreed to hear argument on a case involving the legal enforceability of the Winters-related trust responsibility to ensure reservations have enough water to meet the purposes for which they were established. Unfortunately for the Navajo Nation, the Supreme Court has done a lot in a series of cases (Navajo Nation I & II; Jicarilla) to dramatically undermine the meaning and significance of the trust responsibility. So while I think the Navajo Nation should win if the court were to take the trust responsibility and Winters water rights seriously, I’m not optimistic. Sotomayor I think will end up writing a beautiful dissent that I fully agree with but the majority will continue its practice of favoring non-Indian interests. And in this case, favoring non-Indian water users (Los Angeles (really California in general), Las Vegas, Phoenix, etc) over reservation needs.
The reason I think the case can be thought of as a poverty case is that however we wrap up questions of water rights in legal doctrine and the trust responsibility, fundamentally the country would not tolerate an area the size of West Virginia having such underdeveloped water services if the people affected were non-Indians. It is only because this is about Indian water rights, about lack of basic plumbing, irrigation, and access to water for other purposes for Navajos, that such conditions are tolerated. There would be an outcry if generations of non-Indians had to drive long distances to fill up their water tanks and water bottles every week just to get by, if non-Indians had to make due with such limited amounts of water every week. But the reservation is different somehow. It is out of sight, out of mind; so while this is a case about Navajo water rights, it is also about poverty.
A couple of months ago, I was asked to work on an amicus brief focusing on the treaties made between the Navajo Nation and the United States with a couple of other people. It is my first such brief and I was initially hesitant to work on it in part because I do not trust the Court to treat Indian rights the say way they protect non-Indian interests and in part because of normal over-commitments on my part (Indian law related this time), but my wife basically said I had no choice–I should do it. We submitted it yesterday and can be found here, https://sct.narf.org/documents/arizona_v_navajo/amicus_professors.pdf, and I really want to thank my co-authors, Dan McCool and David Wilkins. David not only wrote the book on Navajo government but has been a steadfast mentor for me for a long time and Dan knows more about both Navajo water and voting issues than I will ever learn. The main brief filed by the Navajo Nation can be found here, https://sct.narf.org/documents/arizona_v_navajo/brief_navajo.pdf, and was the work of other friends (including Paul Spruhan and Ethel Branch) as well and tackles a broader set of issues than was my task. It is worth checking out.
Poverty Law 