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On March 20, the United States Supreme Court heard oral arguments for Arizona v. Navajo Nation, in which the Navajo Nation argues that the U.S. has a treaty-based duty to plan for and protect its water interests. The justices’ decision — due this summer — is likely to have far-reaching implications, whether it’s a narrow ruling that applies solely to the Navajo Nation or a much broader one that could affect tribal water rights across the U.S.
Given the case’s significance, tribal nations, water organizations and nonprofits — as well as one anti-Indigenous group — have filed almost a dozen amicus, or “friend of the court,” briefs to assist the justices in their deliberations. One of the briefs, filed on behalf of the Diné Hataałii Association, an organization of over 200 medicine men and women from all five regions of the Navajo Nation, focuses on a core tenet of federal Indian law: that treaties must be interpreted as tribal signatures would have understood them at the time of signing.
Using that lens, bolstered by interviews with elders of the Diné Hataałii, attorneys Derrick Beetso (Diné) at Arizona State University and Patty Ferguson Bohnee, a tribal member of the Pointe-au-Chien Indian Tribe and director of ASU’s Indian Legal Clinic, created a brief that’s firmly grounded in Diné bi beehaz’áanii, or traditional Diné worldviews and Navajo law. The brief captures and amplifies a unique legal perspective, which weaves together the concepts of Diné hózhǫ́ (harmony), nahat’a (planning) and nitsáhákees (thinking) — each more complicated than its English language equivalent would suggest. These principles have informed the treaty process from the beginning up to the Navajo Nation’s present-day government. When taking them into account in the context of the water rights case and the treaty obligations that came with an established homeland, the Diné Hataałii brief argues, the justices should side with Navajo Nation.
In a conversation with High Country News, Beetso explains how the brief came to be, the role of traditional cultural knowledge in this case, and the effort to make the Supreme Court see the legitimacy of Diné arguments. This conversation has been shortened and edited for clarity.
High Country News: What is at stake for Diné Hataałii Association, for the Navajo Nation and potentially tribal interests more broadly in Arizona v. Navajo Nation?
Derrick Beetso: The case itself, in simple terms, deals with whether or not the Navajo Nation can move forward with a claim that would provide injunctive relief, but really to be able to have the federal government have some sort of an affirmative duty to account for the nation’s unquantified water rights. Right now, the federal government takes the position that they don’t have any affirmative duties to act on behalf of the tribe. And typically, if the water is not quantified, then it’s not factored into the planning for different water resources that the federal government administers.
What’s at stake for the Hataałii Association is this concept that what was reserved for the Navajo Nation in the 1868 treaty was really an entire ecosystem, which includes land, air, fire and water. All those things are relying upon one another and all are important to be able to sustain life within the reservation. And so, in the United States’ promise to set aside the reservation as a permanent homeland for the Navajo Nation, what was implicit in this promise was that those lifeways and that ecosystem would be preserved and protected by the United States in perpetuity. It’s important for purposes of sustaining life, but also for carrying out traditional practices and ceremonies.
HCN: For readers who aren’t familiar with an amicus brief, can you explain what influence or impact it can have on a SCOTUS case?
DB: They’re intended to educate the court on ancillary issues about cases that are before the court. Our particular brief really goes into detail about this concept of treaty interpretation. Under federal law, the United States has said that in order to understand Indian treaties, the United States has to interpret the treaties in the way that the tribal signatories would’ve understood it. The particular instance at hand here, the Navajo Nation Treaty, was negotiated through three different languages. It took two different interpreters — one that was fluent in Navajo and Spanish and another one that was fluent in Spanish and English — in order to negotiate the terms of the treaty. The other factor to consider here is that the treaty was negotiated on the back end of four years of imprisonment at Bosque Redondo. And so they weren’t free to leave or go as they pleased. They were basically imprisoned and negotiated for freedom and a return to their homelands.
So the focus of our brief is really hammering down on how the treaty signatories would’ve understood the treaty. Hopefully, (the justices) factor that into their thinking when they’re weighing the decisions, and (the brief can) help educate the court on things that they didn’t know.
HCN: Which this court could definitely use when it comes to federal Indian law.
DB: That was the thought, too, that it could be a vehicle to educate them on who we are as Indigenous peoples, what’s important to us, what does it mean to have a permanent homeland from an Indigenous perspective, and what are those different laws that have existed since before the United States, and continue to exist with respect to the Navajo Nation. And how those traditional laws would’ve been understood to interpret the provisions that were in the treaty.
HCN: One thing that struck me when I was reading through the brief was how beautifully written and accessible it is, the way that it combines Diné worldviews, the nation’s history during treaty times and traditional Navajo law. What is the backstory to the brief? How did the idea come about?
DB: There’s a natural connection between the relief being sought by the Navajo Nation in this case, — which is an affirmative duty for the United States to plan for the nation’s unquantified water rights and manage the water accordingly — and these traditional concepts of Diné culture of planning and thinking that are ingrained in Diné culture. Every Diné has probably heard about these different rules for the way you go about your life. Everything starts with a thought before it actually comes to fruition. And so having good thoughts and good intentions in everything you do is something that’s really a deep core belief in Navajo culture.
That the nation was seeking this relief brought this kind of traditional cultural thinking to mind. And what you alluded to earlier was that this court — with the ICWA (Indian Child Welfare Act) case and other cases that are before them that affect Indian interests — there’s concern that perhaps they need an Indian Country 101 to really understand who we are as a community, who we are as a people, because you have a number of new justices that are sitting on the court. And so it’s really a way to try to open that door up to be able to understand us a little bit better, and to be able to understand that when they’re setting aside a permanent homeland, it’s setting aside a place where the traditional culture of Indigenous nations can continue to exist as they have since time immemorial.
I have an uncle who is part of the Diné Hataałii Association, and it was a natural conversation or evolution from that relief sought to try to speak to them about whether or not they’d be interested in us representing them as attorneys and the amicus to bring forward this kind of perspective. They were all about it, and invited me up north into a ceremony setting and were gracious enough to have me interview them and talk with them about different philosophies and worldviews. And I was able to incorporate that into the brief. Their only request was that I stayed true to Diné worldviews and culture in the way that we wrote the brief and not write it like a typical lawyer.
HCN: In court cases or NEPA processes, tribal nations often have to put forward explanations of their cultures, their religions, their sacred places, for federal agencies or judges to look at over and over again so that their rights are recognized. I’m curious if you have any thoughts on that.
DB: A slight variation on that is being frustrated because you’re sharing these traditional beliefs and thoughts, but they’re not given credence by the court because you don’t have it in the same format as they’re used to seeing. So here we had law review articles that we were able to cite from Diné practitioners that we could use to bring forward that story, but in a familiar lens that justices are familiar to looking at.
Part of the brief focuses on the current governance structure of the Navajo Nation and how the Navajo code and all of the laws that exist on the nation, as well as the way that they’re interpreted by Navajo Nation courts, really incorporate this traditional lens, too. Part of that was to try to get at this legitimacy, to let the court know that, yeah, this is something that the Diné people have believed in, practiced, since time immemorial, and oh, by the way, they’ve factored it into the way that they self-govern themselves today. There’s court cases that cite these traditional beliefs and laws; there’s a whole Navajo Nation code that incorporates these traditional beliefs and laws into the way we still do things.
HCN: So much of the U.S. court system, history and treaties are written from a Western white settler perspective, typically defending colonial institutions. This amicus really grounds the legal perspective in Diné priorities, concerns, histories, etc. Each tribal nation is unique and thus strategies can’t be perfectly replicated, but do you think that this strategy could be helpful for other tribes to use in cases, moving forward?
DB: Law professors talk about these different cases that go before the Supreme Court that impact tribal interests. So few of them have been actually argued by Indigenous attorneys. The late Bill Rice and the late Rodney Lewis were perhaps the last two Natives to argue before the Supreme Court. Otherwise, tribes are usually farming this out to tribal Supreme Court practitioners. With that being the lay of the land, this is kind of a step removed from that, where maybe you don’t have Native attorneys arguing the case before the Supreme Court, but you have briefs that share, a bit more intimately, different perspectives from the traditional cultural views of the tribe.
That could help inform the court on what’s at stake here and what it means from a Native person’s perspective. It’s each tribe’s own thought about how they want to approach it, but it is something that perhaps works in another situation, another case down the road, depending on how culture and tradition lend themselves to the facts. Hopefully, folks will find that helpful.
Anna V. Smith is an associate editor for High Country News. She has placed in the Native American Journalists Association’s Native Media Awards in the category of Best Coverage of Native America three times. Email High Country News at editor@hcn.org or submit a letter to the editor. See our letters to the editor policy.
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