Apex point - © Robert Sommers 2024

Tuesday, July 4, 2023

First people


Native Dancers, Pow wow - San Luis Rey

On this celebration of the founding of our country I ask that you think of the people that were here before us, the Native Americans. We have not been fair to these people, we have taken their land, exterminated them and abrogated our word to them repeatedly.

It is estimated that the United States has broken at least fifteen of the three hundred and seventy one treaties we have made with the original inhabitants since 1777. I guess they didn't have enough sharp lawyers.

Recently the Navajo lost a major water case in front of the United States Supreme Court. 

There are no Americans that use less water than the Navajos and Hopis, every drop is precious to them. Many Navajo households live on a small fraction of the water most Americans use per day. More than 30 percent of the reservation lacks running water. Water hauled from miles away costs multiple times more.

In court filings, the tribe contended that an 1868 treaty promised both land and water sufficient for the Navajos to return to a permanent home in their ancestral territory. But they lost, in a 5 to 4 decision in which Judge Neal Gorsuch wrote the principal dissent and Judge Kavanaugh wrote for the majority.

Kavanaugh wrote that the case was not whether the United States has interfered with water access for the tribe, but whether a treaty required the US to take concrete steps — such as potentially building pumps, wells or other water infrastructure to facilitate better access.

“In short, the 1868 treaty did not impose a duty on the United States to take affirmative steps to secure water for the Tribe – including the steps requested by the Navajos here, such as determining the water needs of the Tribe, providing an accounting, or developing a plan to secure the needed water,” Kavanaugh wrote.

The judgement is worth reading

The Navajos were forced onto the reservation in 1868. But in the view of Judge Kavanaugh, we gave them land but we did not necessarily grant them the water rights they need to survive. 

This is a horrid and cynical view but almost to expected at this point in time, from this particular court.

One would think that if you dispossess a people and force them to live in the most desolate and difficult of locales that they would at least have all the bare necessities of life granted to them, like access to ample water so that they could survive.

But one would be wrong. It is all in how you parse the fine print. By a five to four decision, the Indians get shtupped once again. 

Here is part of the text of the ruling:

To be sure, this Court’s precedents have stated that the UnitedStates maintains a general trust relationship with Indian tribes, including the Navajos. Jicarilla, 564 U. S., at 176. But unless Congress  has created a conventional trust relationship with a tribe as to a particular trust asset, this Court will not “apply common-law trust principles” to infer duties not found in the text of a treaty, statute, or regulation. Id., at 178. Here, nothing in the 1868 treaty establishes a conventional trust relationship with respect to water. And it is unsurprising that a treaty enacted in 1868 did not provide for all of the Navajos’ current water needs 155 years later. Under the Constitution,Congress and the President have the responsibility to update federal law as they see fit in light of the competing contemporary needs for water.

(b) Other arguments offered by the Navajo Tribe to support its
claims under the 1868 treaty are unpersuasive. First, that the 1868
treaty established the Navajo Reservation as a “permanent home” does
not mean that the United States agreed to take affirmative steps to
secure water for the Tribe. Second, the treaty’s express requirement
that the United States supply seeds and agricultural implements for a 
3-year period to the Tribe does not, as the Tribe contends, mean that
the United States has an additional duty to take affirmative steps to
secure water, but rather demonstrates that the United States and the
Navajos knew how to impose specific affirmative duties on the United
States under the treaty. Third, the Tribe asserts that the United
States’s purported control over the reserved water rights supports the
view that the United States owes trust duties to the Navajos. But the
“Federal Government’s liability” on a breach-of-trust claim “cannot be
premised on control alone.” United States v. Navajo Nation, 556 U. S.
287, 301. Finally, the text of the treaty and records of treaty negotiations do not support the claim that in 1868 the Navajos would have
understood the treaty to mean that the United States must take affirmative steps to secure water for the Tribe.
26 F. 4th 794, reversed. 

And so the poor natives get hosed. Is it any wonder why so many despise lawyers and judges? Once again we have failed in our sacred trust to the natives that we so royally screwed in this country. I guess they are on their own.


“When a stranger sojourns with you in your land, you shall not do him wrong. You shall treat the stranger who sojourns with you as the native among you, and you shall love him as yourself, for you were strangers in the land of Egypt: I am the LORD your God. Leviticus 19-33-34

"And when you are a stranger in somebody else's land, treat him even better." God

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