Brief of Tribal Nations and Indian Organizations as Amici Curiae in Support of the Navajo Nation, U.S. Supreme Court Docket No. 21-1484
SUMMARY OF ARGUMENT: The Winters Doctrine recognizes and gives effect to the promises made by the United States in treaties, congressionally ratified agreements, and executive orders that Tribal Nations would retain permanent and viable homelands. These promises, made in exchange for the Tribal Nations’ cession of billions of acres of land, paved the way for the non-Indian settlement of the West. Although every tribal homeland is unique, invariably, each requires water to be livable. Applying the canons of construction this Court has developed as part of its federal Indian law jurisprudence, as well as the history and circumstances surrounding the creation of each individual reservation, the Winters Doctrine holds that the United States promised to provide water sufficient to fulfill the purposes for which the reservations were created.
Concomitant with the promise to reserve water rights is the corresponding duty to protect and deliver on that promise and avoid rendering those rights meaningless through obstruction, depletion, or diversion to more junior users. In this way, the Winters Doctrine is a pathway for ensuring the United States fulfills its solemn obligations to Tribal Nations. The United States—through both Congress and the Executive—has repeatedly and expressly reaffirmed its understanding of these obligations. Petitioners here articulate no reason why the Lower Colorado River Basin should be treated differently. This Court should once again ensure the United States honors its obligations.
In the 115 years since Winters v. United States, the Doctrine solidified into an integral part of the fabric that makes up Western water management. The Winters Doctrine forms the basis for extensive adjudication and settlement of claims by Tribal Nations to water rights. Today, millions of tribal and non-tribal citizens benefit from the certainty provided by the Winters Doctrine.
Monte Mills, Heather D. Whiteman Runs Him, Dylan R. Hedden-Nicely, John E. Echohawk, Steven C. Moore, David L. Gover, Joe M. Tenorio, Ada Montague Stepleton, Morgan E. Saunders, Wesley James Furlong, and Sydney Tarzwell, Brief of Tribal Nations and Indian Organizations as Amici Curiae in Support of the Navajo Nation, U.S. Supreme Court Docket No. 21-1484 (2023), https://digitalcommons.law.uw.edu/faculty-court-briefs/59