make the nation's argument today practice in navajo culture when you introduce yourself to introduce yourself by your clan so that the people who are brought together know who you are in relation to them so it consistent with that change which means that on my i am born for my mother's people who are of european descent and i'm born to my father's people who are also of european descent we appreciate  judge gold and judge burns on and judge lee accepting this comeback case and we welcome judge lee to the panel i'd like to reserve five minutes of my time for rebuttal as you noted judge gould this this case present difficult and a difficult issue and one of grave importance to the navajo nation and i would say to indian country as a whole which is why we were grateful to have the and the national congress of american indians funded by the native american rights fund on their behalf and a brief filed by law professors who are experts in indian law and water law into two separate treaties with the united states the st in one thousand eight hundred and forty nine guaranteeing the protection of the united states over the navajo people when it acquired sovereignty over arizona and new mexico or what are now congress and executive orders the navajo reservation has been expanded to reach the colorado river and it is our position that the promises and the nation's treaties extend to the entire reservation as it was extended and the government has failed to live up obligations and this action seeks to compel them to do so i'm not going to go through the history of this case which is wrong both and legal or not i'm off on the treaty has such  so then the nation primary complaint is that its people desperately need water and today thirty percent of the population within the lower colorado river basin are estimated to haul water they do not have running water in their home they do not have full plumbing facilities in their home and so it is specially and light as a covert nineteen pandemic they are not able to do this simple thing that  cutting to the chase on what you think is the key controlling precedent here like i would like to hear some general comment about the winter doctrine and you know why the on the winter's case was actually decided by this court st in one thousand and six and it found that when the united states set aside land for an indian tribe it must have intended to include and the tribe must have intended to receive water to make that reservation a viable permanent homeland so even though the treaty that was that issue there for the fort belknap reservation did not include any language about water this court and then it was affirmed by the u s supreme court in one thousand no way held that even though there was no reference waters that there must have been an understanding between the parties that water would be accessible to the people because otherwise particularly in the southwest the land would be valueless and that is been upheld through the years by the court in arizona versus the supreme court in arizona versus california and other cases so what you have there is an implied right the winters doctrine implies a right to water and a treaty with the tribes even if there's no reference to it then subsequent decisions of this court and other circuits such as and part of an overseas babbitt which we cite the court recognized that and implied rights also has an accompanying apply implied duty to protect that right because if you didn't have the duties of protection the right would be again be value not reserving the water for stitching or for culling their uses that winter is doctrine says that there is an implied right and the cases in the circuits including this say there is an implied duty and we're seeking to enforce that implied right and that implies a duty against the united states because the nation despite developments throughout the state of arizona lacks the kinds of water supplies and amenities that other people and arizona take for granted and that the reason for that is neglect i mean that's that's the bottom line the united states when it chooses to can move mountains and literally does and for example we gave as a contrast the central arizona project which delivers water the city is beginning and over towns the same sorts of hurdles that mr sinatra raised in his brief about raising water out of the colorado river where the nation is located which is is a deep canyon and bringing it to the surface those kinds of technical challenges can be met if there's enough money and if there's enough political will to make it happen and reservation approximately one hundred and seventy three thousand live on the reservation and approximately that number of not a navajo enrolled members live off the reservation is about as many live off as live on forefront of the media in this in this country and abroad there is well documented evidence that the lack of adequate water supplies you know when when people call water and sanitary containers when they have to look to livestock watering points to supply their water needs when they only have five to nine gallons per household pre date to use results and numerous health help effect negative health effects and during the pandemic as they said that you know just washing your hands is something you have to prioritize over having water to the highest rate of infection per capita and the united states for a period of time and not going back to see if that is still the case because i know we have resurgence is around the country but it was more than new york it was more than new jersey it was more than the hot spots around the country and that's directly attributable to the lack of adequate water supplies although it and it is probably heightened by other living conditions on the reservation where you have multigenerational households living that it stands within the retain jurisdiction of the united states or it in it was decided in arizona versus california neither of which we believe to be true that there was a difference in opinion between what the special master in arizona versus california held and what the supreme court eventually did which left the outer area of the colorado above likely made but the lovely fairy where the navajo nation right w if that is where the nation is the current is the colorado and the lower base and so there was no adjudication of the nation's right because the special master had made a particular decision and the court rejected it so we agree that if we were to bring aid and action to quantify the nation's water rights that that action would properly be brought and unite in the united states supreme court we would likely need be cooperation of the united states government to do that and we have never been able to secure that support to bring an action to finally quantify the nation's right of the mainstream of the colorado river and it was recognized by you when we were up on appeal before we have also alleged that the needs of the navajo nation apart from that quantified water right and that is what we are th today is you have the department of the interior and the secretary to carry out the responsibilities of the government and that the nation needs for water and make a plan to develop those needs and also that the secretary in his capacity as the manager of the colorado river which is a unique indian tribes and he can't allow other interests to dictate his decisions if it works to the detriment of indian tried to him the united states of the trust building i don't know that fully answered your question but this is not a i case about quantification of water rights and that that's all that the primary reason we say it does not fall within that print for three faith the answer to that is if you're going through and fly right use water and that's the way we construe the right but the right to use water is not a right to a quantification of water is not a right to  have a right recognized in the system a prior appropriation by the state it's a right to access to water and if the court is going to imply that kind of rights and the duty on the part of the united states to protect that rights and and i should mention as well in addition to the water i mean the water is a component of the navajo reservation so it affects the needs of the lands of the reservation to make them for productive and that was the promise of the treaty was to set aside land for a permanent homeland the navajo people and if you're that's obviously there's not a specific right that talks about the extent that with the water that is going to be can be used by the navajo nation but we think that the standard is it's enough water to make for a permanent homeland which was the which is provided for in the and i think that's sufficient but i mean particularity when you have an implied right is kind of a difficult concept but i think when you tie that implied rights to the purpose of the reservation which is clearly set out to establish a permanent homeland for a people has to be enough and that's the standard that's used largely today to quantify a water right is the amount of water needed for a permanent homeland so that that is the kind of particular it is my recollection that the trying to think of you know a case that was actually brought as a common law breach of trust and there aren't a lot of them i cited one and our papers that was a original complaint to encompass an action under the treaty itself we could certainly say even under a treaty enforcement action that it meets the requirements of the budget mitchell for breach of the treaty we assert  provide any affirmative relief as requested without interfering with adjudication that ought to occur in the supreme court we submit that unpacking that would be more difficult than just simply  obligation in the treaty right because what winters does is it is it establishes the scope of the reservation what it says is when the united states either by a treaty and in this case we don't as we argue in our brief it's not really the treaty that deals with the water rights next to the colorado river it is as ms hoover noted in executive order but regardless that they don't point to any specific language they simply point is hold out land for the navajo nation to use in its sovereignty ask for it to improve the land for it to use the water it does not impose a specific obligation on the united states to improve the lands or to develop the water rights it's what the courts have called essentially a fair trial it's a trust that has the legal significance great legal significance in terms of alienation of land the land and be alienated with litigate in a particular way or can be compelled to build a particular project and what this case is about is the navajo being unsatisfied with the way the united states has litigated reserved rights of the we the department has put a lot of effort and the united states has put a lot of effort into assisting drives and litigating the rights for them the question of whether the united states has an obligation to do that is a distinct question the courts have said with respect to the general trust status between the united states and tribes that a trust obligation duty on the part of the united states arises only when a statute or a treaty or property right on behalf of the tribes in the water the water that's necessary to fulfill the birth of the reservation it doesn't say in the united states didn't promise in any treaty or in any executive order with the navajo that they would build a particular majority of the of the reservation they are arguing specifically with respect to one segment of the colorado river main stream between leave ferry or south of leave ferry downstream from lee ferry one particular  earlier statements in the complaint that are about that this complaint is about that the nation needs in the lower base and they particularly complain about arizona be california in the way the united states  to the lower base and the reason they they identify the little colorado river and not the san juan river is because the little colorado river is part of the lower bay but they're talking about is the united states duty apparently water has not been historically used but there is no allegation by the nation that of any historical use of that water there is no allegation by the nation of any present you with a nation has said it was that day if they would need a project like the project that was the belle of it in the central arizona project to bring water from that particular segment of the river to the nation and so when the nation is suggesting it the there's some sort of that there are origins of the main stem of the colorado river a gaze into the navajo nation in the upper base they don't mention that in their in their complaint and they only make a complaint about this particular segment of the river and again  again that would be one claim if they were if the federal reserve driver adjudicated together that would be one claim to water from this system of water right that is fully integrate the little colorado river flows to the colorado river that river flows to the colorado river any water that the nation gets from those other sources that the surface water anyway would end up in the colorado river and maybe the colorado river up or basin or other places of the river so it's a common system of all right  litigating in other states in arizona in new mexico there's a settlement utah to provide for the federal reserve ride for the nation and so what the nation is doing is the same thing that it was done in the or to assert any particular right but the other place where it matters your honour's with respect to this claim for the notion that the united states has breached  its duty to protect the water rights and in indian winters for example there was there were just diversions in that case upstream from where the tribe used actually use water so there was a physical diversion away from the try and so you might be able to say in that kind of circumstance well the united states has done something to take water away from the or today or is now responding to something that makes water away that's not the case here they have not alleged that the united states has done anything physically to the river that makes the the water less civil and now i think they are also not alleging that the united states in any way compromised their legal rights or put their their that anything the united states has done has put their water rights in legal jeopardy or has prevented the nation as sovereign from using the rights that the united states through the executive order and the tribe as sovereign nation is that sovereign to utilize itself if there were to be a further duty right it would be spelled out in the treaty of united states would say and we agree to build this project or to improve the land in this way and if you look at the original eight hundred treaty there are those kind of obligations in there that says that talk about building projects and think the united states would do here all you're talking about is the united states setting aside land and that dev reservation of land also reserves a water right and and that's implied and it's fine and we don't dispute any of that were and were in court in the little colorado river adjudication arguing for the water rights that were set aside b i am saying that but also it's different in the context of the the d general stream adjudications where if the united states doesn't show up and assert the right your honor the right to possibly be forfeit and so if we don't show up in the little colorado adjudication or we don't show up in adjudications in new mexico or you thought and the tribe or the nation is unable to handle its own claims and those rights potentially could be forfeit the nation has alleged nothing in this case what they're saying because the water that's the delivered down through the central arizona project is not available and could not be delivered in the delivery that the government is making is not preventing that that the nation from accessing water in the area that the main  and where they say they have a right to it and in fact they've been the united states has made some of the central arizona project water through the arizona waters alman act available to the nation for a potential settlement but those are of this suit for the purpose of any order direction or modification of the treaty or any supplementary decree that may arise at any time and be getting proper in relation to the subject matter in controversy and i'm going to not be able to remember the exact cite but he basically made the point that in water cases awarding water rights to one party necessarily diminishes the water right to another party and that effectively would hurt here where the united states  adjudicated the water supplies of the lower case so to the extent that another court would interject itself and award rights to the colorado river outside of that adjudicatory process that would directly interfere against the federal government and the claim for more water saying we won an award of more water because for example if you're lying on level you would argue that you can't get to the breach if you do sherry duty in this case without violating this or if supreme court's jurisdiction in arizona versus california because the net effect of the requests from the tr obviously that goes to the beach trust argument but i want to touch on the facts and winters because they're significantly different than the facts in this case in the winters case there was an eight hundred and eighty eight agreement between the federal government and the try to provide militant river water to the reservation that that agreement subsequently was voided by the creation of the state of washington but nevertheless it was clear evidence of the federal government's intent to preserve water for the reservation entitled to water from the lower base of the colorado river but in the winters case the milk never was clearly the source of the water that the trikes saw and there was an agreement that recognized that and there was even a lower court  two they have ground water wells on the reservation in the other sources of water capturing surface water flows on the reservation stock on six cetera may not be ideal but there are water resources on the reservation they  district court as well is a lower colorado river the lower colorado river is access has a main stream but colorado that was a portion between the state and it is a significant source of water and i'm like the little colorado river that no longer runs a regularly and actually is dependent largely on you know mouth and other flood events and yes there's groundwater under the navajo nation but state court because it had waived that in the united states and the nation faced we under being and every one of those cases to protect our own interests in this case is not about the representation of the nation's interest and th proceeding but i could bend your ear for a long time a bad concerns we have about conflicts of interest where for example in the little colorado river the united states represents both the hopi tribe and the navajo nation over the same resources and take the position that it will assert the maximum credible claim for each but has not done so and in accord with our view of what the maximum credible claim and we do take a cue but that's not what this case is about this case is about the lower base of the colorado river juan river in utah that also bound the nomination is part of the colorado system and yes we have a settlement pending before congress that would allocate right or award recognize the nation's right to that river we you do not helpful we try and work cooperatively with the dry and with the united states but moving on to other things the most disturbing thing they hear from the united states is this written repeated attempts to cabinet that trust treaties than it seems there is no basis i mean there is there's now a need for a trust responsibility but that is not what the relationship between the tries and the nation of the united states is about and from the earliest fact the nation has identified its treaty and the promises and its treaty implied rights in its treaty and that together with the law of the river the regulations that we've cited that have been incorporated in decisional documents by the united states and the united states on physical address are sponsibility are grounds to sue to enforce in the nation to provide the nation with water and can you tell me in a couple of things  true that the united states says stood up in court and said well should the nation be awarded what rights they would trump these other uses in the basin but we've had this discussion before in the context of reliance it's very difficult to pull away from the cities in arizona to meet the nation's me so we are concerned about is that the management decisions that the secretary makes which are not where he does not obligation to the tribes which the secretary does years creating i mean one example is and we cited in our papers we have as i believe there was a plan to set aside water from the colorado river to meet the needs of people who have nonunion who've been pumping from the olivier and that is on the water flowing under the surface so they had wells to withdraw water but it was withdrawn water from the colorado river they were going to set aside they have been recognized because of the different adjudication which when it where you can use your water generally speaking and the fact that we have an award in new mexico doesn't mean that we can use that water in arizona  to correct one thing that as yourself they said the six thousand four hundred and eleven acres be awarded are recognized and all washed up for the navajo nation is to be delivered to the navajo nation to when the rocket capital and surrounding communities through the  america sorry the navajo gallup water supply project which is being built as part of the not the nation in mexico because it is impractical to get water to those areas in arizona and other way but that was what that water was for it would take