Annie Kuo: Welcome back to Discovery, a University of Washington School of Law podcast where we interview the law school’s faculty and distinguished guests from around the world. I'm your host Annie Kuo. Today we have a real treat. We have an interview with our new director of the Native American Law Center at UW Law, Monte mills.
Monte Mills: Hi, Annie. Thanks for having me.
AK: Professor Monte Mills joined the law faculty in 2022 as the Charles I. Stone Professor of Law and the director of the Native American Law Center. He teaches American Indian law property and other classes focused on Native American and natural resources-related topics. A native of southwestern Colorado, he says y'all like I do from Texas. Professor Mills joined the UW faculty from the University of Montana, where he was a professor and co-director of the Indian Law Clinic.
In just one week on March 20, the US Supreme Court will hear oral arguments in a case called State of Arizona v. Navajo Nation, which covers this issue of water rights, especially around Western water management.
Professor Mills, could you tell us more about the Winters doctrine of 1908, which I understand is very foundational to the argument in this case.
MM: Sure, Annie. Yeah. This case is really about the duties of the United States to Indian tribes — federally recognized Indian tribes like the Navajo Nation — and here both the state of Arizona as well as number of other state entities and the United States Department of the Interior have been sued by the Navajo Nation who claims that the United States has a duty to help the Navajo Nation identify, protect and deliver water to the reservation. And the Navajo nation's rights to water are really based on that 1908 case, Winters v. United States, which said that when the United States either entered into a treaty or otherwise established a reservation for an Indian tribe, that also came with water rights — water rights sufficient to fulfill the purposes of the reservation.
What the Navajo Nation is arguing here is that, in addition to creating those rights, the treaty and the Winters doctrine also requires of the United States a duty or an obligation to help protect those water rights into the future. The challenge is, however, that even though tribes like the Navajo Nation may have legal rights to water under the Winters doctrine, oftentimes they haven't had the opportunity to quantify or adjudicate or resolve the nature of those water rights. So, they may have rights on paper, but they're not getting actually delivered water pursuant to those legal rights. And here their argument is that the United States has an obligation to help protect those legal rights, particularly in times of scarcity along the Colorado River.
AK: I was reading a summary of the argument and there's an argument that there's been continual reaffirmation by the US government, of its understanding of what the Winters doctrine implies. How could this be actually tenuous and up for interpretation?
MM: Yeah, that's a really good question. The Winters case was decided in 1908, over 115 years ago now. But what happened after that case was even though the United States Supreme Court there confirmed that there were water rights associated with treaties and the creation of reservations, in practice, many of those water rights were simply set aside or ignored. And what happened was there were significant federal investment and development of water resources across the West, especially in the Colorado River Basin, where the 1922 compact really set out who got what water across the whole basin, the seven states in the basin. And that compact said nothing in this agreement affects any rights of any Indian tribes. But really, tribal rights were sort of set aside and ignored.
So, all of the water rights and the reliance on water rights for much of the big cities of the West like Las Vegas, and Phoenix and Los Angeles and the agricultural industry of Southern California really came to rely on access to water from the Colorado River, based on the 1922 compact and what's called the law of the river, notwithstanding the fact that the Navajo Nation and other tribes had legally protected rights to use some of that water that just hadn't been really accounted for.
It wasn't until 1963 when the United States Supreme Court decided a case called Arizona v. California, that those Winters rights — or the rights implied and reserved to tribes upon their reservation — really came back to the fore because the Supreme Court said these are legally protectable rights that need to be honored in this deal. So, even though the Navajo Nation has had these legally protected rights, others have been actually using the water. So, now that the Navajo Nation is saying, look, United States you need to take some steps here to protect our rights to this water, especially as United States is developing rules for how in times of shortage, each parties are going to cut back on their use of the water.
AK: You and I were talking just yesterday about this case, and we talked about some of the other competing interests, people who also want to be accessing the Colorado River. Could you spell out some of those? Las Vegas came up.
MM: Yeah, yeah. I mean, because of the aridity, the desert nature of the Southwest, obviously, water is critically important. And frankly, that's part of the reason that the court recognized the need for water for a lot of the Indian reservations that were created. Without implied water rights, they'd be blazing scorching sands, I think the court said in Arizona v. California. But that's also meant that a number of other communities have come to rely on the use of that water.
So, the seven states in the Colorado River Basin from Colorado down to California, as well as significant irrigation districts, especially in southern California. But, also, all of the water that really made Phoenix Phoenix came from deals arranged between Arizona and California to deliver water through what's called the Central Arizona Project. And that water all comes from the Colorado River down to the Phoenix area.
So, many of those interests, including the state of Arizona, and others, have raised concerns before the Supreme Court about this claim from the Navajo nation because they're concerned that if the Navajo nation were to move forward and acquire actual water rights to sort of confirm their legal rights to water, then they're concerned that that might undo or threaten their rights to water as well, because the way that water rights are allocated in the West depends on seniority, and who has the sort of “first in time first in right.” And when it comes to the Winters rights created at the time of reservation, oftentimes, those are most senior.
So, in the Navajo Nation case, there were treaties in the 1840s, and in 1868, that would likely predate and therefore have seniority over some of these more junior rights. So, there's really a concern on the part of the state and other parties about disruption to a lot of these rights that have been relied upon. Although, as I mentioned earlier, that Reliance has been built up, largely because Winters and the tribal rights were sort of set aside during the period that all that use came to happen.
So, really, what this case is about, at its broadest level, is the Navajo Nation bringing forward a legal claim based on their treaties and Winters rights to suggest that the United States has a duty here and many of the state and other interests saying even though that may be a legal claim, in practice, if the Supreme Court sides of the Navajo nation that has the potential to really disrupt and undermine the existing uses of water along the Colorado River.
AK: I was reading in a Reuters article that the attorney for the states says that the federal treaties with the Navajo Nation don't address water access, and that fiduciary duty of the government to provide for the established homeland. What weight does that argument have in your eyes?
MM: Yeah, yeah. Many of the treaties, or many of the congressional acts or executive orders that establish reservations don't mention water at all. But what Winters is really all about was the Supreme Court's recognition that well, water had to be considered. Because the purpose of these agreements, the purpose of these actions by Congress, and by the president, were to establish homelands for these tribes. That was what the agreement was for. And if that homeland didn't have water sufficient to help folks either engage in agriculture or live or whatever else, then it would essentially be meaningless, and it wouldn't fulfill the purposes.
So, it's true that many of those agreements didn't say anything about water, access to water—
AK: It's kind of a given.
MM: Yeah, right. And that's really where the Supreme Court in Winters in 1908 said, no, there are water rights here that were implied in the creation of these reservations by these treaties. And even if you look at the language of the treaties themselves, and the rules that the Supreme Court is established for the interpretation of treaties, that also supports the need for water to be reserved on behalf of the tribes in those situations.
AK: Let's talk about the amicus brief. Tell us more about your role in this case.
MM: Yeah. Well, oftentimes, in cases before the United States Supreme Court, where tribal interests are at stake, there are other parties — amicus, friends of the court — who will file briefs on both sides as an effort to really help the court understand these issues, particularly of tribal sovereignty and tribal rights, because there's been at various times in the court’s history, more or less commitment to understanding some of those foundational precedents. And so really, Indian law practitioners and scholars and tribal interests from across the country, often will file briefs before the court to help sort of explain treaty rights or tribal sovereignty.
So, in this particular case, I was honored to work with a few colleagues from the University of Arizona and University of Idaho. And we worked on a brief in support of the Navajo Nation’s position that ultimately, we were fortunate and honored to have a number of federally recognized Indian tribes and inter-tribal organizations, as well as the Native American Rights Fund, join really to offer the court a perspective about the importance of Winters and the Winters doctrine, not just to Indian tribes, but to really water management across the western United States, because notwithstanding this history of tribal rights really being set aside for most of the 20th century, Winters, and the rights reserved and recognized in that case, have really become the backbone of Western water law, because they've provided certainty, they've enabled settlements of tribal rights, they've been the basis for litigating and resolving conflicts over water rights. And that's helped ensure that everybody at least has an idea of what rights they have particularly given these historic rights that tribes reserved pursuant to Winters.
AK: I like the line in the arguments summary, “the Winters doctrine is a pathway for ensuring the US fulfills its solemn obligations to tribal nations.” I'm curious about some of the other amicus briefs too, because you told me that there's many that have been filed in support.
MM: Yeah, so there were a few that were filed in support of the State and the Department of the Interior, including a brief filed by a bunch of Western water users who expressed concern about the potential impact of the Navajo Nation’s claims here, again, on this sort of reliance that's been built up around the use of this water. And then in support of the Navajo Nation, in addition to a bunch of tribes, there were also briefs from individual tribes. There were some briefs from folks within the Navajo Nation community, especially a group of traditional healers, who talked about traditional Navajo values and how that would have informed the way the Navajo Nation understood the treaty and their rights to water. And then there were also briefs from folks who have studied and worked with and community organizations who have talked about the impact of a lack of access to water on the Navajo Nation, in particular during the pandemic, when that lack of access to water, which is, as I understand it, about 30% of the Navajo Nation lacks access to consistent running water. That had significant deleterious effects on the community during the pandemic, and really compounded the tragedy in the reservation.
AK: Can you tell us a little more about what happened since 1963? So I’m kind of tracing this timeline of Winters doctrine established in 1908. And then, you know, there have been a few things that have been dismissed or remanded. You know, what's happened since 1963. And why now?
MM: Well, in 1963, when the United States Supreme Court decided Arizona v. California that really brought Winters rights back to the fore because the court recognized and affirmed that tribes in the Colorado basin had Winters rights, reserved rights to water. And that began then — really through the second half of the 20th century — an effort to both litigate and settle and adjudicate and resolve those legal claims that tribes had to water in order to both provide certainty to other water users, but get water to tribal communities. And so really from Arizona v. California through the present, there's been a sustained effort on the part of tribes and on the part of the federal government — in some states to who have been cooperative in the settlement process — to work to resolve the conflicts over unquantified, unadjudicated tribal rights, tribal legal rights to water.
So, there have been a series of settlements between the United States, different states and tribes. I think we're up to 38 or 39. We listed those settlements in our amicus brief. And there's also been a number of litigated adjudications, where tribal rights have been resolved in state courts because the United States passed a law that said, these rights can be adjudicated in state courts. So what we've seen is really an effort relying on Winters and relying on these tribal rights to water to confirm and resolve a lot of these unanswered questions about unquantified legal rights to water.
In the Navajo Nation's case, they weren't included in the Arizona v. California litigation about the Colorado River. And so they've really sought to try and resolve their rights to Colorado River water through a bunch of different ways. And this case, I think, is an as an outgrowth of that. Really, it began many years ago because the Navajo Nation was concerned about the United States and the Department of the Interior in their management of the Colorado River, making new rules that would cut back on different water users’ rights because there wasn't enough water in the river. And what the Navajo Nation said was, you have a duty to make sure our legal rights to water are protected when you come up with these rules about how everybody's going to be cut back. And that really was the genesis of this particular case.
Importantly, I should mention that, as it stands before the Supreme Court, all that the Navajo Nation is asking is to file a complaint to bring a claim that there is this duty, that then can be litigated. So, none of the evidence, none of the litigation, none of that has happened yet. This is just about whether there is a viable legal claim on the part of the Navajo Nation that the United States has a duty here to identify, assess, protect, even deliver water to the Navajo Nation.
AK: So if nay, it'll get kicked back to a lower court and if yes, proceed, then there'll be more of this in the future at the federal level.
MM: It really remains to be seen how the Supreme Court resolves this case, but it's possible. I mean, the Ninth Circuit Court of Appeals said this is a viable claim. There is a duty here rooted in the treaties for the United States to do more than just acknowledge that the Navajo Nation has a right. United States has to do more than that, they have a duty that's inherent in the trust duty. It's inherent in the history of treaty relationships. That's what the Ninth Circuit said. If the Supreme Court says the Ninth Circuit was right, then yeah, the Navajo nation can proceed on this claim and try to prove that there is a duty and that will go forward. If the Ninth Circuit says no, there isn't a claim here, then that complaint would be dismissed. And there'll be other measures that may follow in terms of Navajo nation's ability to pursue their rights to water in the Colorado River.
AK: What are some ripple effects that could happen if the Navajo nation's water rights aren't upheld?
MM: Great use of a water-related pun there, Annie, with ripple effects. Well, really what this case is about is the United States trust obligation to Indian tribes like the Navajo Nation. And it's not so much about whether or not the Navajo Nation has these rights. Even the United States has said, yeah, under the treaties under Winters, they have rights. No question about that. What the United States is disputing is whether those rights also imply an affirmative duty on the part of the United States to do more to help protect, assess, deliver water, in conjunction or in sort of conformance of those rights.
So, that goes really to a long series of court decisions before the United States Supreme Court, dating all the way back to the 1820s that recognized that given the treaty relationship and the unique status of tribes within the United States, the United States owes a trust duty to tribes to look out for their best interests, to protect their property. It's changed over those centuries in terms of how the United States carries out those duties. But really, the question that the court has to answer is whether that trust obligation, whether that duty applies in this context. And unlike maybe some other Supreme Court cases that have talked about whether the trust duty means the United States can be held liable for money damages if they breach that duty, here, the Navajo Nation has asked for injunctive relief, in other words, forcing the United States Department of the Interior to take certain actions in accordance with that duty.
So, that makes this case different than some of the other United States Supreme Court cases about the trust duty. And depending on how the Supreme Court addresses the United States’ obligations in this case, it could provide some more guidance to the nature of the trust duty going forward, particularly as it relates to tribes who may seek injunctive relief against the United States to enforce those trust obligations.
One thing the Supreme Court has been clear about really forever, is that Congress is the entity with responsibility — what they call plenary power — for dealing with Tribal affairs. And so if Congress were to pass a law that said, the United States has a duty to make sure that the Navajo nation gets water, that would be firm ground then that the United States would need to carry forward. And really, in these other trust duty cases, what the court has said is, that's essentially what Congress needs to say in order for a trust duty to be enforced, at least for money damages.
What makes this case different, a little bit, is that the treaties between the United States and the Navajo nation were negotiated by federal officials with the tribe and ratified by the United States Senate. So, Congress has said, here's the reservation and hear all these promises on behalf of the United States, which the United States Supreme Court has confirmed, include water. I mean, Congress could step in now and say, we meant yes, it includes water, and the United States has a duty to provide water.
But I think from the Navajo Nation’s position, what they're essentially arguing is, that's all been done already. By virtue of the treaty, by virtue of the Winters doctrine. There are water rights here. And it wouldn't make sense from the Navajo Nation’s perspective for the United States to say, yeah, you have water rights, but we don't really have to do anything to help you protect them, assess them, get them to you, we can, but it's really up to us, we have this discretion. We might do it, we might not. And that's really the position that the United States has taken. I think in their brief, the core of their argument about that trust duty is that they acknowledge that the Navajo Nation has rights. But they disagree that that created any affirmative duty on the United States to do anything about those rights.
AK: So, a listener question, how do the rights of sovereign indigenous nations differ from state’s rights, generally?
MM: That's a great question. First and foremost, the presence of indigenous peoples predates states, the United States, or anybody else on the continent. And tribal folks will say, we have been here exercising what we now think of as sovereignty since time immemorial. And so because of that, tribes were not a party to the United States Constitution. They were recognized there in the Commerce Clause. But unlike states, who entered into the constitutional bargain to create the federal government, and really that became the recognition and confirmation of their sovereignty, tribes have sovereignty that predates and preexists and exists outside of state and federal sovereignty.
So, they generally haven't been bound by the terms of the Constitution, restrictions on state authority, and have a place sort of outside as a third sovereign in our system, in addition to the federal and state government. And they're often referred to as the third sovereign, although I guess I would clarify to say there are 574 federally recognized Indian tribes within the boundaries of the United States. So, arguably, they're the 576th sovereign in the — if you count the 50 states, then there are over 600, right? But their sovereignty is separate from, and outside of, the states and the federal government. But because of that the relationship with the federal government and the states has led to a bunch of complicated questions about how that tribal sovereignty fits within the broader federal system.
AK: Thanks so much for joining us today and taking time to explain your role in this argument in the amicus brief for this very interesting US Supreme Court case that we're going to hear about next week. Thank you so much for joining us.
MM: Thank you, Annie. It's been my pleasure and honor to be a part of this effort and this case.
AK: Monte Mills is the director of the UW Law’s Native American Law Center and the Charles I. Stone Professor of Law since 2022.