[Records unearthed by a University of Virginia professor shed new
light on states’ vocal opposition in the 1950s to tribes claiming
their share of the river. Today, many are still fighting to secure
water.]
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WESTERN STATES OPPOSED TRIBES’ ACCESS TO THE COLORADO RIVER 70
YEARS AGO. HISTORY IS REPEATING ITSELF.  
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Mark Olalde, ProPublica & Anna V. Smith, High Country News
October 17, 2023
Propublica
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_ Records unearthed by a University of Virginia professor shed new
light on states’ vocal opposition in the 1950s to tribes claiming
their share of the river. Today, many are still fighting to secure
water. _

, J.D. Reeves, special to ProPublica and High Country News

 

by Mark Olalde, ProPublica, and Anna V. Smith, High Country News

_ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign
up for The Big Story newsletter
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to receive stories like this one in your inbox_.

Series: Waiting for Water: Tribes’ Fight for a Promised Resource

The U.S. Supreme Court ruled in 1908 that tribes with reservations
have a right to water. But ProPublica and High Country News found that
in the drought-stricken Colorado River Basin they face unique
obstacles: a state that aggressively opposes them, a process that
sometimes doesn’t provide infrastructure to access water and growing
competition from other users.

In the 1950s, after quarreling for decades over the Colorado River,
Arizona and California turned to the U.S. Supreme Court for a final
resolution on the water that both states sought to sustain their
postwar booms.

The case, Arizona v. California, also offered Native American tribes a
rare opportunity to claim their share of the river. But they were
forced to rely on the U.S. Department of Justice for legal
representation.

A lawyer named T.F. Neighbors, who was special assistant to the U.S.
attorney general, foresaw the likely outcome if the federal government
failed to assert tribes’ claims to the river: States would consume
the water and block tribes from ever acquiring their full share.

In 1953, as Neighbors helped prepare the department’s legal
strategy, he wrote in a memo to the assistant attorney general,
“When an economy has grown up premised upon the use of Indian
waters, the Indians are confronted with the virtual impossibility of
having awarded to them the waters of which they had been illegally
deprived.”

As the case dragged on, it became clear the largest tribe in the
region, the Navajo Nation, would get no water from the proceedings. A
lawyer for the tribe, Norman Littell, wrote then-Attorney General
Robert F. Kennedy in 1961, warning of the dire future he saw if that
were the outcome. “This grave loss to the tribe will preclude future
development of the reservation and otherwise prevent the beneficial
development of the reservation intended by the Congress,” Littell
wrote.

Both warnings, only recently rediscovered, proved prescient. States
successfully opposed most tribes’ attempts to have their water
rights recognized through the landmark case, and tribes have spent the
decades that followed fighting to get what’s owed to them under a
1908 Supreme Court ruling
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long-standing treaties.

The possibility of this outcome was clear to attorneys and officials
even at the time, according to thousands of pages of court files,
correspondence, agency memos and other contemporary records unearthed
and cataloged by University of Virginia history professor Christian
McMillen [[link removed]], who
shared them with ProPublica and High Country News. While Arizona and
California’s fight was covered in the press at the time, the
documents, drawn from the National Archives, reveal telling details
from the case, including startling similarities in the way states have
rebuffed tribes’ attempts to access their water in the ensuing 70
years.

Many of the 30 federally recognized tribes in the Colorado River Basin
still have been unable to access water to which they’re entitled
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And Arizona for years has taken a uniquely aggressive stance against
tribes’ attempts to use their water, a recent ProPublica and High
Country News investigation found
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“It’s very much a repeat of the same problems we have today,”
Andrew Curley, an assistant professor of geography at the University
of Arizona and member of the Navajo Nation, said of the records.
Tribes’ ambitions to access water are approached as “this
fantastical apocalyptic scenario” that would hurt states’
economies, he said.

Arizona sued California in 1952
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asking the Supreme Court to determine how much Colorado River water
each state deserved. The records show that, even as the states fought
each other in court, Arizona led a coalition of states in jointly
lobbying the U.S. attorney general to cease arguing for tribes’
water claims. The attorney general, bowing to the pressure, removed
the strongest language in the petition, even as Department of Justice
attorneys warned of the consequences. “Politics smothered the rights
of the Indians
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one of the attorneys later wrote.

The Supreme Court’s 1964 decree
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quantified the water rights of the Lower Basin states — California,
Arizona and Nevada — and five tribes whose lands are adjacent to the
river. While the ruling defended tribes’ right to water, it did
little to help them access it
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By excluding all other basin tribes from the case, the court missed an
opportunity to settle their rights once and for all.

The Navajo Nation — with a reservation spanning Arizona, New Mexico
and Utah — was among those left out of the case. “Clearly, Native
people up and down the Colorado River were overlooked. We need to get
that fixed, and that is exactly what the Navajo Nation is trying to
do,” said George Hardeen, a spokesperson for the Navajo Nation.

Today, millions more people rely on a river diminished by a hotter
climate. Between 1950 and 2020, Arizona’s population alone grew from
about 750,000 to more than 7 million, bringing booming cities and
thirsty industries
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Meanwhile, the Navajo Nation is no closer to compelling the federal
government to secure its water rights in Arizona. In June, the Supreme
Court again ruled against the tribe, in a separate case, Arizona v.
Navajo Nation
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Justice Neil Gorsuch cited the earlier case in his dissent
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arguing the conservative court majority ignored history when it
declined to quantify the tribe’s water rights.

McMillen agreed. The federal government “rejected that
opportunity” in the 1950s and ’60s to more forcefully assert
tribes’ water claims, he said. As a result, “Native people have
been trying for the better part of a century now to get answers to
these questions and have been thwarted in one way or another that
entire time.”

Three Missing Words

As Arizona prepared to take California to court in the early 1950s,
the federal government faced a delicate choice. It represented a host
of interests along the river that would be affected by the outcome:
tribes, dams and reservoirs and national parks. How should it balance
their needs?

The Supreme Court had ruled in 1908 that tribes with reservations had
an inherent right to water, but neither Congress nor the courts had
defined it. The 1922 Colorado River Compact, which first allocated the
river’s water, also didn’t settle tribal claims.

In the decades that followed the signing of the compact, the federal
government constructed massive projects — including the Hoover,
Parker and Imperial dams — to harness the river. Federal policy at
the time was generally hostile to tribes, as Congress passed laws
eroding the United States’ treaty-based obligations. Over a 15-year
period, the country dissolved its relationships with more than 100
tribes, stripping them of land and diminishing their political power.
“It was a very threatening time for tribes,” Curley said of what
would be known as the Termination Era
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So it was a shock to states when, in November 1953, Attorney General
Herbert Brownell Jr. and the Department of Justice moved to intervene
in the states’ water fight and aggressively staked a claim on behalf
of tribes. Tribal water rights were “prior and superior” to all
other water users in the basin, even states, the federal government
argued.

Western states were apoplectic.

Arizona Gov. John Howard Pyle quickly called a meeting with Brownell
to complain, and Western politicians hurried to Washington, D.C. Under
political pressure, the Department of Justice removed the document
four days after filing it. When Pyle wrote to thank the attorney
general, he requested that federal solicitors work with the state on
an amended version. “To have left it as it was would have been
calamitous,” Pyle said.

The federal government refiled its petition a month later. It no
longer asserted that tribes’ water rights were “prior and
superior.”

When details of the states’ meeting with the attorney general
emerged in court three years later, Littell, the Navajo Nation’s
attorney, berated the Department of Justice for its “equivocating,
pussy-footing” defense of tribes’ water rights. “It is rather a
shocking situation, and the Attorney General of the United States is
responsible for it,” he said during court hearings.

Arizona’s legal representative balked at discussing the meeting in
open court, calling it “improper.”

Experts told ProPublica and High Country News that it’s impossible
to quantify the impact of the federal government’s failure to fully
defend tribes’ water rights. Reservations might have flourished if
they’d secured water access that remains elusive today. Or, perhaps
basin tribes would have been worse off if they had been given only
small amounts of water. Amid the overt racism of that era, the
government didn’t consider tribes capable of extensive development.

Jay Weiner, an attorney who represents several tribes’ water claims
in Arizona, said the important truth the documents reveal is the
federal government’s willingness to bow to states instead of
defending tribes. Pulling back from its argument that tribes’ rights
are “prior and superior” was but one example.

“It’s not so much the three words,” Weiner said. “It’s
really the vigor with which they would have chosen to litigate.”

Because states succeeded in spiking “prior and superior,” they
also won an argument over how to account for tribes’ water use.
Instead of counting it directly against the flow of the river, before
dealing with other users’ needs, it now comes out of states’
allocations. As a result, tribes and states compete for the scarce
resource in this adversarial system, most vehemently in Arizona, which
must navigate the water claims of 22 federally recognized tribes
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In 1956, W.H. Flanery, the associate solicitor of Indian Affairs,
wrote to an Interior Department official that Arizona and California
“are the Indians’ enemies and they will be united in their efforts
to defeat any superior or prior right which we may seek to establish
on behalf of the Indians. They have spared and will continue to spare
no expense in their efforts to defeat the claims of the Indians.”

Western States Battle Tribal Water Claims

As arguments in the case continued through the 1950s, an Arizona water
agency moved to block a major farming project on the Colorado River
Indian Tribes’ reservation until the case was resolved, the newly
uncovered documents show. Decades later, the state similarly used
unresolved water rights as a bargaining chip, asking tribes to agree
not to pursue the main method of expanding their reservations in
exchange for settling their water claims
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Highlighting the state’s prevailing sentiment toward tribes back
then, a lawyer named J.A. Riggins Jr. addressed the river’s
policymakers in 1956 at the Colorado River Water Users Association’s
annual conference. He represented the Salt River Project — a
nontribal public utility that manages water and electricity for much
of Phoenix and nearby farming communities — and issued a warning in
a speech titled, “The Indian threat to our water rights.”

“I urge that each of you evaluate your ‘Indian Problem’ (you all
have at least one), and start NOW to protect your areas,” Riggins
said, according to the text of his remarks that he mailed to the
Bureau of Indian Affairs.

Riggins, who on multiple occasions
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warned of “‘Indian raids’ on western non-Indian water rights,”
later lobbied Congress on Arizona’s behalf to authorize a canal to
transport Colorado River water to Phoenix and Tucson
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He also litigated Salt River Project cases as co-counsel with Jon Kyl,
who later served as a U.S. senator. (Kyl, who was an architect of
Arizona’s tribal water rights strategy, told ProPublica and High
Country News that he wasn’t aware of Riggins’ speech and that his
work on tribal water rights was “based on my responsibility to
represent all of the people of Arizona to the best of my ability,
which, of course, frequently required balancing competing
interests.”)

While Arizona led the opposition to tribes’ water claims, other
states supported its stance.

“We thought the allegation of prior and superior rights for Indians
was erroneous,” said Northcutt Ely, California’s lead lawyer in
the proceedings, according to court transcripts. If the attorney
general tried to argue that in court, “we were going to meet him
head on,” Ely said.

When Arizona drafted a legal agreement to exclude tribes from the
case, while promising to protect their undefined rights, other states
and the Department of the Interior signed on. It was only rejected in
response to pressure from tribes’ attorneys and the Department of
Justice.

McMillen, the historian who compiled the documents reviewed by
ProPublica and High Country News, said they show Department of Justice
staff went the furthest to protect tribal water rights. The agency
built novel legal theories, pushed for more funding to hire respected
experts and did extensive research. Still, McMillen said, the
department found itself “flying the plane and building it at the
same time.”

Tribal leaders feared this would result in the federal government
arguing a weak case on their behalf. The formation of the Indian
Claims Commission — which heard complaints brought by tribes against
the government
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typically on land dispossession — also meant the federal government
had a potential conflict of interest in representing tribes. Basin
tribes coordinated a response and asked the court to appoint a special
counsel to represent them, but the request was denied.

So too was the Navajo Nation’s later request that it be allowed to
represent itself in the case.

Arizona v. Navajo Nation

More than 60 years after Littell made his plea to Kennedy, the Navajo
Nation’s water rights in Arizona still haven’t been determined, as
he predicted.

The decision to exclude the Navajo Nation from Arizona v. California
influenced this summer’s Supreme Court ruling in Arizona v. Navajo
Nation, in which the tribe asked the federal government to identify
its water rights in Arizona. Despite the U.S. insisting it could
adequately represent the Navajo Nation’s water claims in the earlier
case, federal attorneys this year argued the U.S. has no enforceable
responsibility to protect the tribe’s claims. It was a “complete
180 on the U.S.’ part,” said Michelle Brown-Yazzie, assistant
attorney general for the Navajo Nation Department of Justice’s Water
Rights Unit and an enrolled member of the tribe.

In both cases, the federal government chose to “abdicate or to
otherwise downplay their trust responsibility,” said Joe M. Tenorio,
a senior staff attorney at the Native American Rights Fund and a
member of the Santo Domingo Pueblo. “The United States took steps to
deny tribal intervention in Arizona v. California and doubled down
their effort in Arizona vs. Navajo Nation.”

In June, a majority of Supreme Court justices accepted the federal
government’s argument that Congress, not the courts, should resolve
the Navajo Nation’s lingering water rights. In his dissenting
opinion, Gorsuch wrote, “The government’s constant refrain is that
the Navajo can have all they ask for; they just need to go somewhere
else and do something else first.” At this point, he added, “the
Navajo have tried it all.”

As a result, a third of homes on the Navajo Nation
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still don’t have access to clean water, which has led to costly
water hauling and, according to the Navajo Nation, has increased
tribal members’ risk of infection during the COVID-19 pandemic.

Eight tribal nations have yet to reach any agreement over how much
water they’re owed in Arizona. The state’s new Democratic governor
has pledged to address unresolved tribal water rights, and the Navajo
Nation and state are restarting negotiations this month. But tribes
and their representatives wonder if the state will bring a new
approach.

“It’s not clear to me Arizona’s changed a whole lot since the
1950s,” Weiner, the lawyer, said.

* Navajo Nation
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* tribal nations
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* water rights
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* Supreme Court
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