Amicus Curiae Brief — Arizona, et al., Petitioners v. Navajo Nation, et al.

Nos. 21-1484 and 22-51

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------STATE OF ARIZONA, et al.,

Petitioners,

v.

NAVAJO NATION, et al.,

Respondents.

---------------------------------♦--------------------------------DEPARTMENT OF THE INTERIOR, et al.,

Petitioners,

v.

NAVAJO NATION, et al.,

Respondents.

---------------------------------♦--------------------------------On Writs Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF FOR DINÉ HATAAŁII ASSOCIATION, INC.

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

---------------------------------♦--------------------------------PATRICIA FERGUSON-BOHNEE

Counsel of Record

DERRICK BEETSO

INDIAN LEGAL CLINIC

ASU PUBLIC INTEREST LAW FIRM

SANDRA DAY O’CONNOR COLLEGE OF LAW

111 E. Taylor Street, Mail Code 8820

Phoenix, Arizona 85004

(480) 727-0420

pafergus@asu.edu

Counsel for Amicus Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

iii

INTERESTS OF THE AMICUS CURIAE ...........

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

3

I.

II.

THE NAVAJO NATION’S TREATIES MUST

BE INTERPRETED HOW THE NAVAJO

NATION WOULD HAVE UNDERSTOOD

THEM.........................................................

3

A. History of the Navajo Nation’s Treaties with the United States .................

5

B. The Navajo Nation’s Winters Rights.....

8

THE NAVAJO NATION’S UNDERSTANDING OF ITS TREATIES IS GOVERNED BY

PRE-EXISTING TRADITIONAL NAVAJO

LAW ........................................................... 10

A. Traditional Navajo Law Regarding

Balance and Disharmony, and the

1868 Treaty .......................................... 11

B. Diné Thinking and Planning in Finding Solutions ........................................ 15

C. Traditional Diné Thinking Continues to

Exist and Inform How Diné Conduct

Themselves ............................................ 19

D. The Relief Sought by the Navajo Nation

is Supported by Applying Traditional

Navajo Law and this Court’s Precedent... 21

ii

TABLE OF CONTENTS—Continued

Page

III.

WINTERS DOCTRINAL RIGHTS AND

TRADITIONAL DINÉ WORLDVIEWS ..... 23

A. Diné Winters Rights under Federal

Law Must be Understood According to

Diné Rights to Tó (“Water”) and Nature’s Elements under Diné Natural

Laws..................................................... 25

B. The State and Federal Petitioners’

Proposed Indian Water Policy Results

in Disparate Treatment, as Applied, to

the Navajo Nation’s Reserved Property Interests ....................................... 28

CONCLUSION..................................................... 33

iii

TABLE OF AUTHORITIES

Page

CASES

Arizona v. California,

373 U.S. 546 (1963) ...................................................8

Arizona v. California,

460 U.S. 605 (1983) .................................................24

Arizona v. California,

547 U.S. 150 (2006) ........................................... 24, 25

Cappaert v. United States,

426 U.S. 128 (1976) ............................................. 8, 23

Choctaw Nation v. United States,

318 U.S. 423 (1943) ...................................................4

Herrera v. Wyoming,

139 S.Ct. 1686 (2019) ................................................4

Iina Ba, Inc. v. Navajo Business Regulatory,

11 Am. Tribal Law 447 (Nav. Sup. Ct. 2014) ..........20

Minnesota v. Mille Lacs Band of Chippewa

Indians,

526 U.S. 172 (1999) ...................................................4

Navajo Nation v. Bedonie,

6 Am. Tribal Law 725 (Nav. Sup. Ct. 2006) ............19

Navajo Nation v. Dep’t of Interior, et al.,

D.C. No. 3:03-cv-00507-GMS (9th Cir. 2021) ...... 8, 10

Off. of Navajo Lab. Rels., ex rel. Bailon v.

Cent. Consol. Sch. Dist. 22,

No. SC-CV-37-00, 5 Am. Tribal Law 412

(Nav. Sup. Ct. 2004) .................................................16

iv

TABLE OF AUTHORITIES—Continued

Page

Office of Navajo Nation President and

Vice-President v. Navajo Nation Council,

9 Am. Tribal Law 46 (Nav. Sup. Ct. 2010) ..............15

Parravano v. Babbit,

70 F.3d 539 (9th Cir. 1995) ......................................30

United States v. Adair,

723 F.2d 1394 (9th Cir. 1983) ..................................24

United States v. Kagama,

118 U.S. 375 (1986) .................................................27

United States v. White Mountain Apache Tribe,

537 U.S. 565 (2003) ........................................... 26, 28

United States v. Winans,

198 U.S. 371 (1905) ................................. 4, 23, 24, 32

Washington State Department of Licensing v.

Cougar Den, Inc.,

139 S.Ct. 1000 (2019) .......................................... 5, 29

Washington v. Washington State Commercial

Passenger Fishing Vessel Ass’n,

443 U.S. 658 (1979) ........................................... 4, 5, 7

Winters v. United States,

207 U.S. 564 (1908) ..... 3, 4, 8, 9, 15, 23-26, 28-30, 32

CONSTITUTION, TREATIES, AND STATUTES

U.S. CONST. art. II .........................................................3

U.S. CONST. art. VI .............................................. 4, 8, 15

1 N.N.C. § 201 .............................................................22

1 N.N.C. § 202 .............................................................17

v

TABLE OF AUTHORITIES—Continued

Page

1 N.N.C. § 2 .................................................................20

1 N.N.C. § 7 .................................................................19

2 N.N.C. § 110 .............................................................16

Colorado River Compact of 1922, art. VII ...... 28, 29, 30

Navajo Nation Code of Judicial Conduct, Canon

One (1991) ...............................................................20

Treaty Between the United States of America

and the Navajo Tribe of Indians, With a

Record of the Discussions that Led to its

Signing, Aug. 12, 1868 (1968) ................. 9, 14, 22, 31

Treaty Between the United States of America

and the Navajo Tribe of Indians, Concluded

June 1, 1868, Ratification advised July 25,

1868, Proclaimed Aug. 12, 1868, 15 Stat. 668 ..........6

art. I .........................................................................27

art. V ..........................................................................6

art. XII .......................................................................6

art. XIII .....................................................................6

Treaty with the Navajos, Concluded Sept. 9,

1849, Ratified Sept. 9, 1850, Proclaimed Sept.

24, 1850, 9 Stat. 974 ............................................... 5

art. I ..................................................................... 5, 27

art. IX .................................................................. 5, 32

art. XI ........................................................................6

vi

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Bernhard Michaelis, The Navajo Treaty of 1868

(Navajo Historical Ser. No. 4, 2014)..........................9

Brief for Respondents, Arizona v. Navajo Nation,

Nos. 21-1484 & 22-51 (2023) ...................................26

Brief for State Petitioners, Arizona v. Navajo

Nation, Nos. 21-1484 and 22-51 (2022) ..................24

Charles J. Kappler, Kappler’s Indian Affairs:

Laws and Treaties Compiled and Edited by

Charles J. Kappler. Vol II (1904) ...............................4

Declaration of Roman Bitsuie (Jan. 30, 2023),

http://bit.ly/romanbitsuie ...................... 11, 16, 17, 30

Department of the Interior, Criteria and Procedures for Indian Water Rights Settlements,

55 Fed. Reg. 9223 (Mar. 12, 1990) ...........................10

Final Environmental Impact Statement, Colorado

River Interim Guidelines for Lower Basin

Shortages and Coordinated Operations for Lake

Powell and Lake Mead (Oct. 2007) ............... 10, 26, 29

Frances Stead Sellers, It’s Almost 2020, and 2

Million Americans Still Don’t Have Running

Water, According to New Report, Washington Post

(Dec. 11, 2019), https://www.washingtonpost.com/

national/its-almost-2020-and-2-million-americansstill-dont-have-running-water-new-report-says/

2019/12/10/a0720e8a-14b3-11ea-a659-7d69641c6ff7_

story.html ................................................................31

vii

TABLE OF AUTHORITIES—Continued

Page

Interview with Avery Denny, President, Diné

Hataałii Association, Inc. (Dec. 17, 2022) (on

file with the author) .................................... 14, 27, 28

John L. Kessell, General Sherman and the

Navajo Treaty of 1868: A Basic and Expedient

Misunderstanding, 12 W. Hist. Q. 251 (Jul.

1981) ...................................................................... 7, 8

Katherine Marie Birmingham Osburn, The

Navajo at the Bosque Redondo: Cooperation,

Resistance, and Initiative, 1864-1868, 60 N.M.

Hist. Rev. 399 (1985) ......................................... 13, 15

Marie Mitchell, The Navajo Peace Treaty 1868

(1973) .......................................................................12

Michelle Hale, Empowered Sovereignty for

Navajo Chapters Through Engagement in a

Community Planning Process, in Navajo

Sovereignty, Understandings and Visions of

the Diné People (Lloyd L. Lee ed. 2017) .................18

Miranda Warburton, We Don’t Own Nature,

Nature Owns Us: The Ceremonial and

Esoteric Nature of Water in the Little Colorado

River Basin and Diné Bikeyah (July 1, 2020)

(unpublished manuscript) (on file with

author) ............................................................... 22, 23

National Park Service, Policy Mem. No. 22-03

(Sept. 12, 2022), https://www.nps.gov/subjects/

policy/upload/PM_22-03.pdf......................................3

viii

TABLE OF AUTHORITIES—Continued

Page

Peacemaking Program of the Judicial Branch of

the Navajo Nation, PEACEMAKING PLAN OF

OPERATIONS (2012), https://courts.navajo-nsn.gov/

Peacemaking/Plan/PPPO2013-2-25.pdf .................21

Raymond D. Austin, Navajo Courts and Navajo

Common Law (2009) ....................................11, 13-15

Responding to Historic Drought and Ongoing

Dry Conditions in the Colorado River Basin:

Request for Input, 84 Fed. Reg. 2244 (Feb. 6,

2019) ........................................................................30

Robert Yazzie, “Life Comes From It”: Navajo

Justice Concepts, 24 N.M. L. Rev. 175 (1994)..... 11, 12

Robert Yazzie, Air Light/Fire, Water and

Earth/Pollen: Sacred Elements that Sustain

Life, 18 J. Env’t L. & Litig. 191 (2003).............. 27, 28

Robert Yazzie, Avery Denny, Lorene Legah,

Amber Crotty, James McKenzie, Diné Good

Governance and Leadership Framework,

(2014), https://www.aisc.ucla.edu/gng/posters/

amber.crotty.poster.pdf ............................................17

1

INTERESTS OF THE AMICUS CURIAE

Established in the 1970s, Amicus Diné Hataałii

Association, Inc.1 is a 501(c)(3) nonprofit organization,

comprised of over 200 Diné2 medicine men and women

from across the Navajo Reservation, that exists to protect, preserve, and promote the Diné cultural wisdom,

spiritual practice, and ceremonial knowledge for present and future generations. The Association is certified and incorporated under the auspices of the Navajo

Nation Division of Economic Development business

regulatory process and is overseen by a board of directors from each of the five geographic regions of the

Navajo Nation. Amicus is uniquely situated to inform

the Court about traditional Diné worldviews and laws,

particularly as related to interpreting treaties between

the United States and the Navajo Nation and how the

implicit promise of water in the Navajo Nation’s 1868

treaty with the United States compels the relief sought

in this case—the United States’ obligations to plan for

and protect the water for the treaty homelands.

---------------------------------♦---------------------------------

1

Pursuant to this Court’s Rule 37.6, counsel for amicus curiae certify that no person or entity other than amicus curiae and

their counsel authored this brief in whole or in part. No person

other than amicus curiae or their counsel made a monetary contribution to its preparation or submission of the brief.

2

Navajos refer to themselves as “Diné,” which means “the

people” in their language. Navajo and Diné will be used interchangeably throughout this brief.

2

SUMMARY OF ARGUMENT

Amicus endeavors to provide the Court with critical information about Diné worldviews and traditional

Navajo law, also known as Diné bi beehaz’áanii. An understanding of traditional Navajo law, which has existed since time immemorial and is still intact today,

will help inform how Navajo signatories would have

understood the Navajo Nation’s treaties with the

United States. Amicus will explain how traditional

Navajo law governs Diné relationships generally with

the surrounding elements—water, air, fire, and land,

and how traditional Navajo law generally seeks balance and harmony, while also addressing inevitable

conflict and resolution. Amicus will also explain the

importance of critical thinking and planning in traditional Diné culture.

An understanding of traditional Navajo law is necessary to comprehend, from a Navajo perspective, the

effects of the imprisonment of Navajo people by the

United States at Bosque Redondo between the years

1864 and 1868. Traditional Navajo law will help inform the Court on how the Navajo signatories would

have understood the sacred promises and responsibilities agreed to by the United States in signing the 1868

treaty.

Amicus will explain how these traditional Navajo

laws provide the foundation of modern day Diné bi beehaz’áanii (“Navajo law”) and have been in continuous

use since the time of signing the treaties. Amicus will

further explain how the Navajo Nation’s requested

3

relief sought in this case—affirmative and judicially

enforceable duties on the part of the United States to

plan for the Navajo Nation’s water needs—is consistent with traditional Navajo laws, whereas the result requested by Petitioners in this case would lead

to disharmony and disparate treatment under this

Court’s precedent.

Specific to the underlying element in this case, tó

(“water”), Amicus suggests that the United States’ obligations are clear under both traditional Navajo law

and under this Court’s Winters doctrine. Federal duties

that attach themselves to Navajo treaties and Winters

rights must be viewed through this traditional lens,

which is consistent with this Court’s unwavering precedent.

---------------------------------♦---------------------------------

ARGUMENT

I.

THE NAVAJO NATION’S TREATIES MUST

BE INTERPRETED HOW THE NAVAJO

NATION WOULD HAVE UNDERSTOOD

THEM.

In the mid-1800s, the United States exercised its

treaty powers, under Article II, Section 2 of the U.S.

Constitution, to enter into binding agreements with

numerous Indian tribes, including the Navajo Nation.

These treaties helped pave the way for non-Indian settlement across the western United States, and resulted

in large swaths of federal landholdings west of the

100th Meridian. See, e.g., National Park Service,

4

Policy Mem. No. 22-03, at 2 (Sept. 12, 2022),

https://www.nps.gov/subjects/policy/upload/PM_22-03.pdf.

Importantly, the Framers determined that “all Treaties made . . . under the Authority of the United States,

shall be the supreme Law of the Land.” U.S. CONST. art.

VI, cl. 2. The United States bound itself to unique

promises and responsibilities in exchange for tribes

ceding extensive landholdings and remaining on

smaller land parcels (often, but not always known as

“Reservations”). See generally Charles J. Kappler,

Kappler’s Indian Affairs: Laws and Treaties Compiled

and Edited by Charles J. Kappler, Vol. II (1904). In reviewing Indian treaties, this Court has said, “Treaty

analysis begins with the text, and treaty terms are

construed as ‘they would naturally be understood by

the Indians.’ ” Herrera v. Wyoming, 139 S.Ct. 1686,

1701 (2019) (quoting Washington v. Washington State

Commercial Passenger Fishing Vessel Ass’n (“Fishing

Vessel”), 443 U.S. 658, 676 (1979)).

In reviewing and interpreting Indian treaties, this

Court has said that treaties may best be understood by

the circumstances surrounding their negotiation and

execution. United States v. Winans, 198 U.S. 371, 381

(1905). This Court has also held consistently that Indian treaties “are to be interpreted liberally in favor of

the Indians,” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 200 (1999) (citing Fishing

Vessel, 443 U.S. at 675–76; Choctaw Nation v. United

States, 318 U.S. 423, 432 (1943)), and that “ambiguities

are to be resolved in their favor.” Id. (citing Winters v.

United States, 207 U.S. 564, 576–77 (1908)). More

5

recently, in Washington State Department of Licensing

v. Cougar Den, Inc., this Court explained the Indian

treaty interpretation cases “base their reasoning in

part upon the fact that the treaty negotiations were

conducted in, and the treaty was written in, languages

that put the [Indians] at a significant disadvantage.”

139 S.Ct. 1000, 1012 (2019); see also Fishing Vessel, 443

U.S. at 666–67 (explaining “[t]here is no evidence of the

precise understanding the Indians had of any of the

specific English terms and phrases in the treaty . . . ”,

but they were interested in protecting their right to

fish, and that they “rel[ied] heavily on the good faith of

the United States to protect that right”). This Court’s

Indian treaty interpretation precedent must guide its

review of the Navajo Nation’s treaties with the United

States.

A. History of the Navajo Nation’s Treaties

with the United States.

Two treaties between the Navajo Nation and the

United States are pertinent to this case—one in 1849

and another in 1868. In 1849, the Navajo Nation entered into a treaty with the United States establishing

a robust trust responsibility “plac[ing] [the Navajo

Nation] under the exclusive jurisdiction and protection of the . . . United States[,] . . . forever.” See Treaty

with the Navajos, Concluded Sept. 9, 1849, Ratified

Sept. 9, 1850, Proclaimed Sept. 24, 1850, 9 Stat. 974,

art. I (“1849 Treaty”). The 1849 Treaty included a plan

to delineate future boundaries for the Navajo Nation’s

permanent homeland. Id. at art. IX (“it is agreed by the

6

aforesaid Navajoes that the government of the United

States shall, at its earliest convenience, designate, settle, and adjust their territorial boundaries, and pass

and execute in their territory such laws as may be

deemed conducive to the prosperity and happiness

of said Indians.”). The 1849 Treaty is “to receive a liberal construction, at all times and in all places, . . . and

that the government of the United States shall so legislate and act as to secure the permanent prosperity

and happiness of [the Navajo Nation].” Id. at art. XI.

In 1868, nearly two decades later, while imprisoned under deplorable conditions on the Bosque Redondo Reservation at Fort Sumner, New Mexico, the

Navajo Nation entered into another treaty with the

United States. Treaty Between the United States of

America and the Navajo Tribe of Indians, Concluded

June 1, 1868, Ratification advised July 25, 1868, Proclaimed Aug. 12, 1868, 15 Stat. 668 (“1868 Treaty”).

The 1868 Treaty delineated the Navajo Reservation’s

boundaries and was designed to entice farming by

Navajo families on plots of land “not [to exceed] one

hundred sixty acres,” and by individual adult Navajos

on plots of land “[not exceeding] eighty acres.” Id. at

art. V. The United States also agreed to purchase “fifteen thousand sheep and goats,” and “five hundred

beef cattle” to better encourage an agrarian lifestyle.

Id. at art. XII. Upon these promises, among others, the

Navajo Nation agreed “to make [the Navajo Reservation] their permanent home, and [that] they [would]

not as a tribe make any permanent settlement elsewhere.” Id. at art. XIII.

7

The 1868 Treaty was negotiated between the

United States and the Navajo Nation using two interpreters—one fluent in the Navajo language and Spanish, the other fluent in Spanish and English. John L.

Kessell, General Sherman and the Navajo Treaty of

1868: A Basic and Expedient Misunderstanding, 12 W.

Hist. Q. 251, 261–66 (Jul. 1981) (describing the dual

translation process of negotiating the Reservation

boundaries provisions of the 1868 Treaty, first from

English to Spanish with one interpreter, James C.

Sutherland; then from Spanish to Navajo via another

interpreter, Jesus Arviso.). Similar to the circumstances surrounding the Fishing Vessel decision, the

Navajo signatories lacked a “precise understanding . . .

of the specific English terms and phrases in the treaty,”

but it is clear from records of the negotiation that they

bargained for a return to their traditional homelands—to live within their four sacred mountains and

their rivers and streams.

This trilingual negotiation process resulted in a

colossal misunderstanding of the Reservation boundaries, with the United States relying on its description

of metes and bounds, and the Navajo relying on promises that they could return “home.” General Sherman

and the Navajo Treaty of 1868: A Basic and Expedient

Misunderstanding, 12 W. Hist. Q. at 261. As a result,

“[i]n 1869, the year after the Navajos’ return from the

Bosque, a concerned army officer estimated that half

of the tribe was outside treaty boundaries.” Id. at 271.

The Navajo had returned to their traditional homelands and continued their lifeways planting crops,

8

grazing cattle and sheep, and migrating within their

homelands. From this point, the federal government

consistently chose not to enforce the boundary lines for

several reasons, “because the government was able to

renege both treaty and trust obligations, to spend less

per capita on the Navajos than on practically any other

tribe, to save the tens of millions of dollars it would

have cost over the years to confine and to subsist them,

or to educate them (per Article VI) and wisely develop

the resources of the reservation.” Id. Congress finally

resolved the border question with legislation “defining

the exterior boundaries of the Navajo Reservation in

Utah and in Arizona.” in the 1930s. Id. at 272.

B. The Navajo Nation’s Winters Rights.

When the United States establishes an Indian reservation, “the Government, by implication, reserves

appurtenant water then unappropriated to the extent

needed to accomplish the purpose of the Reservation.”

Navajo Nation v. Dep’t of Interior, et al., D.C. No. 3:03cv-00507-GMS at 10 (9th Cir. 2021) (citing Cappaert v.

United States, 426 U.S. 128, 138 (1976); see also Winters v. United States, 207 U.S. at 576. This Court has

described the ancestral homelands of the Navajo people as “arid,” reasoning “[i]f the water necessary to sustain life is to be had, it must come from the Colorado

River or its tributaries.” Arizona v. California, 373 U.S.

546, 598–99 (1963).

The multiple provisions in the 1868 Treaty encouraging an agrarian society discussed above, coupled

9

with the forced farming activities Navajo people were

subjected to while imprisoned in Bosque Redondo

make clear that the United States intended to secure

ample water resources for the Navajo Nation’s permanent homeland. See, e.g., Bernhard Michaelis, The

Navajo Treaty of 1868, at 131 (Navajo Historical Ser.

No. 4, 2014) (Sept. 6, 1863 letter from Brigadier General James Carleton to Brigadier General Lorenzo

Thomas stating, “[t]he purpose had in view is to send

all captured Navajoes and Apaches to [Bosque Redondo], and there to feed and take care of them until

they have opened farms and become able to support

themselves, as the Pueblo Indians of New Mexico are

doing”). Indeed, the 1868 Treaty negotiations included

specific discussions about the poor water quality in

Bosque Redondo when compared to the Navajo peoples’ ancestral homelands. Treaty Between the United

States of America and the Navajo Tribe of Indians,

With a Record of the Discussions that Led to its Signing, 3, Aug. 12, 1868 (1968) [hereafter 1868 Treaty with

Record of the Discussions] (“I thought at one time the

whole world was the same as my own country but I got

fooled in it, outside my own country we cannot raise a

crop, but in it we can raise a crop almost anywhere, . . .

we know this land does not like us neither does the

water.”).

Moreover, the Department of the Interior recently

acknowledged that “under the Winters doctrine, the

federal government impliedly ‘reserved water in an

amount necessary to fulfill the purposes of [the Navajo

Reservation]’ ”, and that “[u]nquantified water rights

10

of the Navajo Nation are considered an ITA [(Indian

Trust Asset)].” Navajo Nation v. Dep’t of Interior, et al.,

D.C. No. 3:03-cv-00507-GMS, at 14 (citing Final Environmental Impact Statement, Colorado River Interim

Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead, 3-96

(Oct. 2007)) [hereinafter Shortage Guidelines FEIS].

Generally, the federal government considers Winters

rights as “vested property rights for which the United

States has a trust responsibility.” Department of the

Interior, Criteria and Procedures for Indian Water

Rights Settlements, 55 Fed. Reg. 9223 (Mar. 12, 1990).

Along with lands set aside under Indian treaties, “the

United States [holds] legal title to such water in trust

for the benefit of the Indians.” Id. To understand how

the Navajo would have understood these express

treaty provisions and the established implicit promise

of water that accompanies them, Amicus will next explain selected aspects of traditional Navajo law.

II.

THE NAVAJO NATION’S UNDERSTANDING OF ITS TREATIES IS GOVERNED BY

PRE-EXISTING TRADITIONAL NAVAJO

LAW.

Amicus will now discuss traditional laws regarding balance and disharmony, cultural perspectives

about the circumstances surrounding the signing of

the 1868 Treaty, and traditional Diné principles governing the importance of critical thinking and planning in Navajo culture. These principles are

paramount in discerning how the treaty signatories

11

would have viewed the 1868 Treaty and how the relief

sought by the Navajo Nation in this matter is consistent with those views as detailed further below.

A. Traditional Navajo Law Regarding Balance and Disharmony, and the 1868

Treaty.

The starting point to understand the Navajo way

of thinking is hózhǫ́, or Diné peoples’ balance with the

world around them. All Diné lifeways are governed by

hózhǫ́, described as “the perfect state.” Robert Yazzie,

“Life Comes From It”: Navajo Justice Concepts, 24 N.M.

L. Rev. 175 (1994); see also Raymond D. Austin, Navajo

Courts and Navajo Common Law 54 (2009) [hereinafter Austin] (stating “hózhǫ́ describes a state . . . where

everything, tangible and intangible, is in its proper

place and functioning well with everything else, such

that the condition produced can be described as peace,

harmony, and balance”); Declaration of Roman Bitsuie,

¶5 (Jan. 30, 2023), http://bit.ly/romanbitsuie (describing hózhǫ́ as both “to achieve a state of beauty by attaining a state of balance,” and as “a holy condition to

be strived for and sought after for one’s entire life”).

Thus, Navajos are taught to live according to hózhǫ́,

“because it embodies everything that is considered

good.” Austin at 55.

At times, Diné encounter the opposite of hózhǫ́—

hóchxǫ’, or disharmony, caused by naayéé’ (“monsters”).

Naayéé’ can be “anything that causes disharmony, friction, or discord in life.” Id. at 60–61. By way of analogy,

12

the conflicts that underlie certain matters before this

Court often have their own naayéé’, and the parties involved in those matters often seek restoration of their

respective hózhǫ́ through this Court’s constitutional

jurisdiction. Importantly, Diné lifeways also provide

processes to eliminate naayéé’ through ceremonies intended to restore hózhǫ́. See Yazzie, Life Comes From

It, 24 N.M. L. Rev. at 181–82. Different ceremonies are

conducted to restore hózhǫ́ depending on the circumstances and the nature of the naayéé’. Id.

In 1864, “more than 7,000 Navajo men, women,

and children were driven like cattle across the barren,

mesquite-studded plains of New Mexico to Fort

Sumner, where a reservation held them prisoners for

. . . four years of hardships, disease, and near starvation.” Marie Mitchell, The Navajo Peace Treaty 1868 ix

(1973). This experience is collectively referred to

among the Diné as Hwéeldi (“a place of suffering and

fear”) and it was here that the 1868 Treaty was negotiated and signed.

The Navajo imprisonment at Hwéeldi was an environment of hóchxǫ’, or disharmony, embodied by the

worst naayéé’ (“monsters”) Navajo people have endured in modern times. The 1868 Treaty and the

United States’ promises therein are predicated, from a

Diné perspective, on efforts to restore hózhǫ́. Circumstances like Hwéeldi, where an abundance of naayéé’

contribute toward a state of hóchxǫ’, require a regimented corrective process under Diné bi beehaz’áanii

(“Navajo law”). The traditional problem-solving process is described as follows:

13

(1) the hózhǫ́ condition exists; (2) negative

forces called naayéé’ (“monsters”) disrupt the

hózhǫ́ condition, resulting in hóchxǫ’ (disharmony); (3) the negative forces (naayéé’) are

identified/isolated and then matched to a specific ceremony; (4) the ceremony expels or

neutralizes the negative forces; and (5) the

ceremony returns things and beings (humans

included) to hózhǫ́. . . . The end result is called

hózhǫ́ nahasdłii (hózhǫ́ restored).

Austin at 61. The historical record of activities preceding the signing of the 1868 Treaty evidence Diné leaders adhering to this process before agreeing to the 1868

Treaty.

In this instance, elements (1) and (2) are respectively pre-Hwéeldi and Hwéeldi. Predicting the devastation to come in Bosque Redondo, “[a]s early as 1865,

the Indians . . . warn[ed] that if they were forced to remain upon the reservation [at Bosque Redondo] they

would ‘all die very soon.’ They explained that they had

been instructed by their Holy People to remain within

the boundaries of three rivers, the Rio Grande, the Rio

San Juan, and the Rio Colorado, and that their violation of this restriction was responsible for their current suffering.” Katherine Marie Birmingham Osburn,

The Navajo at the Bosque Redondo: Cooperation, Resistance, and Initiative, 1864-1868, 60 N.M. Hist. Rev.

399, 407–08 (1985). Barboncito, a spiritual leader and

the Head Chief of the Navajos when the 1868 Treaty

was signed, attributed the despair inflicted on Navajo

people to the removal from their homeland which went

against their forefathers advice to not “cross[ ] the line

14

of my own country.” 1868 Treaty with Record of the

Discussions, at 1-3. He observed that the forced imprisonment and harsh conditions at Bosque Redondo resulted in death of both people and animals. “It seems

that whatever we do here causes death, some work at

the Acequias take sick and die, others die with the hoe

in their hands, they go to the river to their waists and

suddenly disappear, others have been struck and torn

to pieces by lightning.” Id. The impact of Hwéeldi continues to be felt today and is credited as the beginning

of many current social plagues within the Navajo community. Interview with Avery Denny, President, Diné

Hataałii Association, Inc. (“Denny Interview”) (Dec. 17,

2022) (on file with the author). With respect to elements (3) and (4), Navajo historians recount the performance of a Coyote Way ceremony after the first day

negotiating the 1868 Treaty. Austin, at 5 (describing

that “[a] group stood away from the [treaty] negotiations, and while the Coyote way chants were sung, a

coyote entered the circle. He ran around inside it, and

at one point during the chant, he broke the circle and

ran to the west. That was an indication that Navajos

would return west, back to Diné Bikeyah (Navajo country), rather than to the east and Indian Territory”). The

purpose of the Coyote Way ceremony was to restore

hózhǫ́ and effectuate the release of Navajo people back

to their homeland.

“Although some informants claimed that the ritual was divinatory, indicating that the government

was now ready to free the Navajo, other Navajos attributed their freedom to this ceremony” because their

15

request to leave was not granted until the Coyote Way

ceremony was performed. Osburn at 408 (Adding, “[t]o

this day, some Navajo believe that, ultimately, their

Holy People, not the United States government, returned them to their current reservation.”). The 1868

Treaty, from a Diné perspective, is therefore a sacred

document, referred to as Naaltsoos Sání (“the paper

that is aged”), which the treaty signatories believed

was intended to restore hózhǫ́. In fact, “[t]he Navajo

people see the [1868 Treaty] as equal to their covenant

with the Holy Beings: both are binding sacred agreements that must be respected and honored continuously and in perpetuity.” Austin at 6; see also Office of

Navajo Nation President and Vice-President v. Navajo

Nation Council, 9 Am. Tribal Law 46, 60 (Nav. Sup. Ct.

2010) (stating, “there is a Navajo higher law in fundamental customs and traditions, as well as substantive

rights found in the Treaty of 1868, the Navajo Nation

Bill of Rights, the Judicial Reform Act of 1985, and the

Title Two Amendments of 1989”) (emphasis added). It

follows that the Navajo 1868 Treaty signatories would

have believed the United States felt the same. Indeed,

as mentioned earlier, the U.S. Constitution deems the

1868 Treaty and other treaties, “the supreme Law of

the Land.” U.S. CONST. art. VI, cl. 2.

B. Diné Thinking and Planning in Finding

Solutions.

In Diné culture, binding agreements between parties create implied directives—much like the Winters

doctrine recognizes an implied right to water for

16

federal reservations. Put another way, it is not enough

to promise something—“leaders are required to . . . [actively] seek solutions to problems,” Bitsuie Decl. ¶6,

such as securing water resources. Diné believe that

“every word is powerful, sacred, and never frivolous,”

and that every provision of an agreement must be

given force and effect. Off. of Navajo Lab. Rels., ex rel.

Bailon v. Cent. Consol. Sch. Dist. 22, No. SC-CV-37-00,

5 Am. Tribal Law 412, 415 (Nav. Sup. Ct. 2004). To

effectuate this, the traditional process for fulfilling obligations and/or finding solutions includes four steps:

(1) Nitsáhákees (“thinking”), (2) Nahat’a (“planning”),

(3) implementation, and (4) “reflection on the results

with improvements as necessary.” Bitsuie Decl. ¶6.

Nitsáhákees (“thinking”) and Nahat’a (“planning”), steps one and two, work together closely with

the former informing the latter. Id. (Describing

Nitsáhákees (“thinking”) as “the process of gathering

the insights of everyone involved in an issue or a problem.”). Importantly, in Nitsáhákees, “leaders seek to

facilitate a balanced solution that . . . [respects] . . . all

positions and needs, and is recognized by participants

as egalitarian.” Id. Nitsáhákees “involves critical

thinking, and more broadly, to give direction and

guidance to the issue at hand, in a constant cycle of

examining and analyzing issues for growth and development.” 2 Navajo Nation Code (“N.N.C.”) § 110(q).

Nahat’a (“planning”) is the result of Nitsáhákees

(“thinking”) and intended to “craft the details of a solution that puts a toe on every stone in the creek to get

across.” Bitsuie Decl. ¶6; see also 2 N.N.C. § 110(p)

17

(describing Nahat’a as “to strategically plan while utilizing Diné bi beehaz’áanii Bitsé Siléá (foundation of

Diné law), statutory laws, informed research and public input (through use of the Naabik’áyáti process) in a

constant cycle of examining and analyzing issues for

growth and development”).

The Navajo Nation’s government is built upon the

thinking and planning that derive from traditional

law, customary law, natural law, and common law. See,

e.g., 1 N.N.C. § 202 (“Diné bi nahat’a [(“Navajo planning”)] is the foundation of the Diné bi naat’á (Navajo

government)”); see also Robert Yazzie, Avery Denny,

Lorene Legah, Amber Crotty, James McKenzie, Diné

Good Governance and Leadership Framework (2014),

https://www.aisc.ucla.edu/gng/posters/amber.crotty.

poster.pdf. (stating, “Nahat’a Bibee Haz’áanii Bitsé

siléí Bee Na’anish,” or “the principles of Nahat’a

[(“Navajo planning”)] constitute the foundation of good

Navajo governance.”). Steps three and four, implementation and “reflection on the results with improvements as necessary,” Bitsuie Decl. ¶6, are intended to

ensure the planned solution remains fluid to account

for change in circumstances or unintended consequences that need to be addressed. This is because

“Participatory Democracy” is the foundation of “Navajo

Governance,” Bitsuie Decl. ¶4, and requires that “persons who have positions of authority through government roles, wealth, situational power, or other

circumstances, have an unequivocal duty to steward

the rights and needs of those who are not in the room.”

Id.

18

The Navajo Nation has used Nitsáhákees (“thinking”) and Nahat’a (“planning”) effectively to meet the

needs of its communities. Since the signing of the 1868

Treaty, “the BIA has been largely responsible for the

design, implementation, and maintenance of reservation infrastructure that includes roads, housing, utilities, and facilities.” Michelle Hale, Empowered

Sovereignty for Navajo Chapters Through Engagement

in a Community Planning Process, in Navajo Sovereignty, Understandings and Visions of the Diné People 135 (Lloyd L. Lee ed. 2017). In 1975, the Indian

Self-Determination and Education Assistance Act

(“ISDEAA”) authorized the Navajo Nation to contract

for the authority to plan and implement the use of certain federal funds, thus allowing the incorporation of

traditional thinking and planning into tribal infrastructure. An ISDEAA contract was used to plan and

help build the Tsehootsooi Medical Center in Fort Defiance as a result. Id. Cliff Johns, a Navajo architect

working under this ISDEAA contract, “consulted with

Navajo traditional leaders to create a patient-based

facility where healing benefits mind, body, and spirit.”

Id. The “$18 million dollar, 43,000 square-foot facility”

also includes a space where traditional ceremonies

may be conducted. Id. at 135–36. “The hope is that

Navajo patients and doctors will recognize their cultural identity in the facility, feel a sense of ownership

in the space and use it as a comfortable and powerful

place for healing.” Id. at 136. The Tsehootsooi Medical

Center reflects but one example of proper Nitsáhákees

(“thinking”) and Nahat’a (“planning”) in Navajo governance. Correlatively, Diné worldviews suggest that

19

the foundation of good federal governance is also

Nahat’a (“planning”), informed by robust Nitsáhákees

(“thinking”).

C. Traditional Diné Thinking Continues

to Exist and Inform How Diné Conduct

Themselves.

Traditional Diné worldviews guided Navajo leaders during the treaty-making era and continue to be

the foundation for the Navajo Nation’s governance system and philosophy. The Navajo Nation’s self-governance approach has incorporated traditional Diné

worldviews and Diné bi beehaz’áanii (“Navajo law”)

into all facets of its self-governance.

All branches of Navajo government reflect traditional principles. The Navajo Nation Code codifies

many of the traditional principles discussed above as

Diné bi beehaz’áanii (“Navajo law”). In turn, the Navajo Nation courts routinely apply Diné bi beehaz’áanii

(“Navajo law”) in court holdings. See, e.g., Navajo Nation v. Bedonie, 6 Am. Tribal Law 725, 728 (Nav. Sup.

Ct. 2006) (Applying Diné bi beehaz’áanii (“Navajo law”)

in analyzing the “right to a speedy and public trial” under the Navajo Nation Bill of Rights.); 1 N.N.C. § 7. Title 1, Chapter 2.

Canon One of the Navajo Nation Code of Judicial

Conduct states, “judges, as Navajos, should apply Navajo concepts and procedures for justice, including the

principles of maintaining harmony, establishing order,

respecting freedom, and talking things out in free

20

discussion.” Navajo Nation Code of Judicial Conduct,

Canon One (1991). For instance, in reviewing whether

the Navajo Nation fulfilled its obligations to its people

with respect to providing economic opportunities under its own Bill of Rights, 1 N.N.C. § 2, the Navajo Nation Supreme Court invoked Diné bi beehaz’áanii in

reversing the government action. The Navajo Nation

Supreme Court explained that the Diné principle of

“self-sufficiency teaches that the obligation of Diné individuals to take care of themselves impacts the community, which relies on the survival of individuals in

order to continue to exist as a cohesive people.” Iina

Ba, Inc. v. Navajo Business Regulatory, 11 Am. Tribal

Law 447, 457-58 (Nav. Sup. Ct. 2014). This also includes t’áá nihí ák’ineildzil dóó adiká’ adiilwol, or

“economic self-sufficiency,” to ensure you have essentials such as clothes, food, and housing for your family.

Id. This teaches that an individual must work hard

and sacrifice “(t’áá hwó ájít’éego t’éiyá) to learn the

skills necessary to sustain a prosperous life for an entire community.” Id. “It is up to our leaders to make

this possible, and it is within this teaching of Diné

self-sufficiency that our leaders created the [Navajo

Business Opportunity Act] and the [Navajo Nation

Procurement Act].” Id. The Iina Ba, Inc. Court added,

“Naata’aniis [“Leaders”] are required to be conscious

of their authority to find sacred solutions,” Id. at 458

(referencing the critical thinking and planning process

described above in Section II(B)).

21

This belief and traditional governance system continue today through the Navajo Traditional Peacemaking Program. The Peacemaker, or hózh̨ǫ́ójí naat’áanii

(“a combination of leader, teacher, and healer”), is

tasked with “bring[ing] the people out of chaos into

hózh̨̨ó by using stories and teachings to enable them to

resolve the problem and decide on mutual positive action.” Peacemaking Program of the Judicial Branch of

the Navajo Nation, PEACEMAKING PLAN OF OPERATIONS

9 (2012), https://courts.navajo-nsn.gov/Peacemaking/

Plan/PPPO2013-2-25.pdf. Importantly, the Program is

rooted in traditional worldviews “which does not label

individuals ‘offender’ and ‘victim,’ or as wrongdoer

and harmed party.” Id. at 12. Instead, the Program

acknowledges that “all who are embroiled in

hóóchx̨o’/anáhóót’i’ possess some qualities of causing

the offense or being the victim.” Id. Resolutions garnered from the Program may then be confirmed by the

Navajo Nation Judicial Branch. Id. at 4.

In these ways, modern Navajo governance reflects

traditional Diné bi beehaz’áanii (“Navajo law”) as described in the preceding sections of this brief describing responsibilities to think critically and plan for

solutions.

D. The Relief Sought by the Navajo Nation

is Supported by Applying Traditional

Navajo Law and this Court’s Precedent.

The Navajo Nation’s requested relief seeks an order determining the United States owes a fiduciary

22

duty to assess its water needs and develop a plan to

meet them. This is wholly consistent with traditional

Diné obligations to think critically and plan for solutions. In fact, given the federal obligations involve water, or “tó,” such fiduciary duties are arguably more

pronounced. Diné bi beehaz’áanii (“Navajo law”), as

codified in the Navajo Nation Code, states: “Tó dóó dził

diyinii nahat’á yił hadeidiilaa”, or “Water and the sacred mountains embody planning,” and “Nitsáhákees éí

nahat’á bitsé silá,” or “Thinking is the foundation of

planning.” 1 N.N.C. § 201. So planning is built upon

proper critical thinking and embodied in the sacred

mountains and water themselves—i.e., the Reservation itself, as described by Barboncito when negotiating the 1868 Treaty. 1868 Treaty with Record of the

Discussions at 2 (“When the Navajos were first created

four mountains and four rivers were pointed out to us,

inside of which we should live, that was to be our country.”).

Importantly, the Diné believe water must be discussed with caution, including avoiding arguments

about it. Miranda Warburton, We Don’t Own Nature,

Nature Owns Us: The Ceremonial and Esoteric Nature

of Water in the Little Colorado River Basin and Diné

Bikeyah 186 (July 1, 2020) (unpublished manuscript)

(on file with author). Arguing about water is disrespectful and not honorable and can cause negativity to

come back to the Navajo Nation and hurt its people. Id.

at 188. “No one can own it; No one can sell it; No one

can buy it.” Id. at 191. “Our ancestors told us to be

careful about how we use water—not to fight over it,

23

use it equally and collaboratively, it is sacred and important.” Id. at 187. Specifically, fighting about water

will tarnish traditional ceremonies. “For example, . . .

if someone . . . doesn’t have the water from [a] little

spring due to the adverse [e]ffect of water rights issues, it could force him to change his ways (he wouldn’t

have pure water or the plants/medicine)” to perform

the Waterway ceremony. Id. at 189. Thus, the Navajo

Nation, operating under these principles, asks the federal government to think critically and plan to meet its

water needs.

The Navajo Nation’s relief sought is consistent

with how the traditional Navajo signatories would

have understood the United States would meet its

treaty obligations generally. Such critical thinking and

strategic and inclusive planning provide a strong foundation for both traditional and modern Diné views on

governance and fulfilling obligations.

III. WINTERS DOCTRINAL RIGHTS AND

TRADITIONAL DINÉ WORLDVIEWS.

This Court established in Winans that a “treaty

was not a grant of rights to the Indians, but a grant of

right from them.” 198 U.S. at 381 (emphasis added).

This Court also held that when the United States sets

aside an Indian reservation as a permanent homeland,

it reserves the appurtenant water necessary to meet

that purpose. Winters, 207 U.S. at 577; Cappaert, 426

U.S. at 138.

24

Combining the Winans principles with the Winters

doctrine, the Ninth Circuit has recognized that reserved water rights, like the Navajo Nation’s, may

carry a priority date of “time immemorial” where the

Tribe would not have understood “such a reservation

of land to include a relinquishment of its right to use

the water as it had always used it on the land it had

reserved as a permanent home.” United States v. Adair,

723 F.2d 1394, 1414 (9th Cir. 1983). Nothing in the historic record suggests the Navajo Nation would have

understood the 1868 Treaty to relinquish their rights

to use water. Under those facts, the Adair Court reasoned a tribe’s water rights “were not created” by a

treaty, but instead “the treaty confirmed the continued

existence of these rights.” Id. The State Petitioners understand the weight of such a priority date, combined

with the size of the Navajo Reservation and its projected population growth. Consequently, they misconstrue this Court’s opinion in Arizona v. California, 460

U.S. 605, 616–18 (1983), to provide blanket pronouncements about Indian water rights. Brief for State Petitioners at 23–24, Arizona v. Navajo Nation, Nos. 211484 and 22-51 (2022).

Justice White’s Arizona v. California opinion is

meant to apply only to the State parties and the specifically-referenced federal and Indian Reservations in

the Court’s decree, as made clear by a plain reading of

Art. VIII(C) of the Consolidated Decree. 547 U.S. 150,

166 (2006) (“This decree shall not affect . . . The rights

or priorities, except as specific provision is made

herein, of any Indian Reservation, National Forest,

25

Park, Recreation Area, Monument or Memorial, or

other lands of the United States. . . .”). For good measure, Art. II(D) of the Consolidated Decree makes clear

that “nothing [in the Consolidated Decree] shall prohibit the United States from making future additional

reservations of mainstream water for use in any of

such States as may be authorized by law and subject

[to existing rights].” Id. at 157.

As detailed below, this Court’s Winters precedent

and traditional Diné laws are generally consistent

with one another, as are this Court’s precedent with

respect to fiduciary duties resulting from federal management of trust property interests and Diné philosophies on meeting duties and obligations. As such, the

magnitude of the water rights involved here and the

disparate impact western water policy has had on the

Navajo Nation—and therefore on Amicus and the communities Amicus serves—provide a firm basis for this

Court to uphold the decision below.

A. Diné Winters Rights under Federal Law

Must be Understood According to Diné

Rights to Tó (“Water”) and Nature’s

Elements under Diné Natural Laws.

In this instance, the Navajo Nation’s Winters

rights claims ripen through treaties, executive orders,

and statutes creating the boundaries of the Navajo

Nation, alongside strong federal policies designed to

contain Navajo people—permanently on the Navajo

Reservation as an agrarian society. Brief for

26

Respondents at 20–24, Arizona v. Navajo Nation, Nos.

21-1484 & 22-51 (2023). Without water, the Navajo

Reservation would not be able to support an agrarian

lifestyle contemplated in the 1868 Treaty. The United

States has acknowledged such rights and referred to

them as Indian Trust Assets, or “ITAs”, in public documents related to Colorado River water management.

See Shortage Guidelines FEIS, at 3-96. Notably, “[t]he

United States, as trustee, is responsible for protecting

rights reserved by, or granted to, Indian tribes or individual Indians by treaties, statutes, executive and

secretarial orders, and other federal actions.” Id. at

3-87.

In White Mountain Apache Tribe, this Court held

that when the United States holds a property interest

in trust status for an Indian tribe, there is a duty to

maintain such property interests—“a fiduciary actually administering trust property may not allow it to

fall into ruin on his watch.” United States v. White

Mountain Apache Tribe, 537 U.S. 565, 575 (2003). The

Navajo Nation’s Winters rights are analogous to the

federal facilities administered by the Secretary in

White Mountain Apache Tribe. There, this Court found

it persuasive that the Secretary “enjoyed daily occupation” alongside “daily supervision” of the federal facility. Id. Here too, the federal government exercises daily

and exclusive control over the management of the

Colorado River, which it has determined the Navajo

Nation has Winters rights to despite failure to quantify

such rights. The duty described in White Mountain

Apache Tribe is analogous to Diné worldviews about

27

how Diné people care for obligations under their control. Subsequently, Diné people agree that such obligations cannot “fall into ruin” under their watch.

Diné natural laws interpret the treaties as preserving the entirety of Diné lifeways on Diné bi keyah

(Navajo land), under federal “jurisdiction and protection” in perpetuity. 1849 Treaty, art. I; 1868 Treaty, art.

I, see generally United States v. Kagama, 118 U.S. 375,

384–85 (1986) (upholding Congress’ authority to assert

federal criminal jurisdiction over Indian reservations

based on the United States’ exclusive authority over

tribes and its duty to protect Indians). A key aspect of

those lifeways is the relationship between Navajo people and tó (“water”), ch’il (“plants”), níłch’i (“air”), and

jóhonaa’éí (“sun”)—which Amicus acknowledges as

nihiDyin dine’é, or “our Holy People.” Denny Interview;

see also Robert Yazzie, Air Light/Fire, Water and

Earth/Pollen: Sacred Elements that Sustain Life, 18 J.

Env’t L. & Litig. 191, 206 (2003) (stating that Diné natural law requires that “[t]he four sacred elements of

life, air, light/fire, water and earth/pollen in all their

forms must be respected, honored, and protected for

they sustain life”).

According to Diné bi beehaz’áanii (“Navajo law”),

imperfect beings, like humans, red ants, birds, and the

like, established laws in this world—the Glittering

World (the fourth world in Diné cosmology)—in order

to keep from destroying it. Denny Interview. Accordingly, Diné culture consistently seeks to balance and

appreciate the privilege to use all nature’s elements,

and through Diné bizaad (“the Navajo language”)

28

Navajo people communicate with the world around

them, providing offerings and prayers. Id. Indeed,

“[t]he Diné have a sacred obligation and duty to respect, preserve and protect all that was provided[,] for

[Navajo people] were designated as the steward of

these relatives through [their] use of the sacred gifts

of language and thinking.” Yazzie, Air Light/Fire, 18

J. Env’t L. & Litig. at 194.

In other words, Diné cultural practices are designed to ensure such elements do not “fall into ruin”

under Diné peoples’ watch. In traditional Diné communities, these traditional practices safeguard the land,

water, air, and fire analogous to the Clear Water Act or

the Clean Air Act. Like this Court’s holding protecting

the trust corpus in White Mountain Apache Tribe,

these traditional relationships with nature’s elements

ensure care for, and nurturing of, those obligations and

elements under Diné peoples’ daily purview: the water

used; the land tended to or traveled upon; the air

breathed; and the fire of a Navajo home—symbolic of

the Sun.

B. The State and Federal Petitioners’ Proposed Indian Water Policy Results in

Disparate Treatment, as Applied, to the

Navajo Nation’s Reserved Property Interests.

This Court’s Winters holding is consistent with

Diné laws and worldviews—the water is reserved with

the land. In addition, Article VII of the 1922 Colorado

29

River Compact, which binds the Petitioners, states,

“nothing in this compact shall be construed as affecting the obligations of the United States of America to

Indian tribes.” Colorado River Compact of 1922, art.

VII.

From this point, the sovereigns diverge. The

States assert this Court retains exclusive and preclusive jurisdiction over quantification, where they claim

all paths lead. The federal government asserts it has

no enforceable affirmative duty to protect the Navajo

Nation’s Winters rights, but admits they exist. Shortage Guidelines FEIS, at 3-96. These arguments advocate for a framework that results in absolute disparate

treatment, effectively and as applied, with respect to

the Navajo Nation’s water rights. See, e.g., Washington

State Dep’t of Licensing v. Cougar Den, Inc., 139 S.Ct.

1000, 1026–27 (2019) (Kavanaugh, B., dissenting) (expressing concern on whether tax policies, as applied,

were effectively discriminatory to tribal treaty rights).

Under this approach, the Navajo Nation is left with no

recourse but quantification before this Court, which

the Navajo Nation does not seek. As a result, the Navajo Nation would be unable to prevent its reserved

property interests from dwindling away while under

exclusive federal control.

Instead, Amicus supports the Navajo Nation’s position—that a breach of trust claim, at a minimum, can

be remedied by a duty to plan for water needs under

the United States’ jurisdiction—and further asserts

that the United States’ exclusive control over the Colorado River imports sacred obligations which require

30

proper Nitsáhákees (“thinking”) and Nahat’a (“planning”). Bitsuie Decl. ¶6. With respect to hózhǫ́, and to

prevent disparate treatment under federal water policies and laws (as applied and implemented), the

United States’ discretion to manage the Colorado

River must be accomplished holistically, accounting for

quantified rights, but also considering unquantified reserved water rights it holds for the Navajo Nation. See,

e.g., Parravano v. Babbit, 70 F.3d 539, 546–47 (9th Cir.

1995) (upholding the Secretary of the Interior’s policy,

supported by the United States’ trust responsibility

and where the Tribe’s water rights were unquantified,

to regulate Klamath River salmon as they migrate in

the open ocean).

In addition, Article VII of the 1922 Colorado River

Compact was likely intended to safeguard Winters

rights like the Nation’s, which under Diné bi beehaz’áanii (“Navajo law”) cannot be severed from the

land—“it’s all the same.” Denny Interview (explaining

that you cannot sever the water, because the water is

your relative, a part of you, and also all around you;

and the same with the air, the plants, and the earth’s

fire, “the sun,” all of which must be in balance to sustain life). Succinctly, traditional Diné believe the treaties preserved the entirety of the Diné universe

between their four sacred mountains, and within the

bounds of the various streams that traverse through

and are contiguous to the Reservation. A century after

the Compact was ratified, the federal government has

yet to firm up these rights; the River itself is experiencing historic droughts, see, e.g., Responding to Historic Drought and Ongoing Dry Conditions in the

31

Colorado River Basin: Request for Input, 84 Fed. Reg.

2244 (Feb. 6, 2019), and the Navajo Nation and Amicus’

communities suffer from inadequate water infrastructure and scarcity of water itself, Frances Stead Sellers,

It’s Almost 2020, and 2 Million Americans Still Don’t

Have Running Water, According to New Report, Washington Post (Dec. 11, 2019), https://www.washingtonpost.com/

national/its-almost-2020-and-2-million-americans-stilldont-have-running-water-new-report-says/2019/12/10/

a0720e8a-14b3-11ea-a659-7d69641c6ff7_story.html

(“In the Navajo Nation, . . . where water has long been

sacred, about one-third of the population of more than

300,000 does not have a tap or flushing toilet.”).

Navajo culture is complex. Amicus understands

this. But it is purposeful and life-driven. The Navajo

leaders that signed the Treaty of 1868, relying on the

United States’ promises of protection, understood that

they would be returning home. This includes “water.”

Barboncito described “home” as he understood it in the

treaty negotiations:

When the Navajos were first created four

mountains and four rivers were pointed out to

us, inside of which we should live, that was to

be our country and was given to us by the first

woman of the Navajo tribe. It was told to us

by our forefathers, that we were never to move

east of the Rio Grande or west of the San Juan

rivers and I think that our coming here has

been the cause of so much death among us and

our animals.

1868 Treaty with Record of the Discussions, at 2. Returning home also requires that the federal

32

government meet the federal obligations required to

make this land habitable and usable.

In 1849, the United States promised to “pass and

execute . . . such laws as may be deemed conducive to

the prosperity and happiness of [the Navajo people].”

1849 Treaty at art. IX. Upon this backdrop, the 1868

Treaty delineated boundaries and federal purposes for

the Navajo Reservation. Executing federal water law

and policy in a manner that thoughtfully considers

and plans for the Navajo Nation’s Winters rights to the

Colorado River is consistent with: these treaty promises to protect the Navajo people and their permanent

homelands; the Court’s precedent on federal treaty obligations, Winans, 198 U.S. at 380 (“[W]e will construe

a treaty with the Indians as [they] understood it, and

‘as justice and reason demand, in all cases where

power is exerted by the strong over those to whom they

owe care and protection.’ ”); and how the traditional

Navajo signatories would have understood the United

States’ duties to protect and preserve their rights and

their homelands under the negotiated treaties.

---------------------------------♦---------------------------------

33

CONCLUSION

For all of the above reasons, the Court should

affirm the decision below.

Respectfully submitted,

PATTY FERGUSON-BOHNEE

Counsel of Record

DERRICK BEETSO

INDIAN LEGAL CLINIC

ASU PUBLIC INTEREST LAW FIRM

SANDRA DAY O’CONNOR

COLLEGE OF LAW

111 E. Taylor Street,

Mail Code 8820

Phoenix, Arizona 85004

(480) 727-0420

pafergus@asu.edu

Counsel for Amicus Curiae