Records uncovered by UVA History Professor Lead to Investigative Journalism Project on Native Tribal Water Rights

Earlier this year, the Supreme Court, in Arizona v. Navajo Nation, issued a ruling against the Navajo Nation. Siding with the state and federal government, the Supreme Court ruled that the government had no duty to provide the Navajo access to water from the Colorado River. The Supreme Court’s deliberations over that case coincided with University of Virginia history professor Christian McMillen’s research into an earlier landmark ruling by the Supreme Court on a long running dispute between Arizona and California over claims to those same Colorado River waters.

McMillen had been researching the 1964 ruling’s impact on the Navajo Nation and the other Native tribes who depended on access to the Colorado River. What he discovered, through Freedom of Information Act requests and document dives into the National Archives, were thousands of pages of court files, agency memos, correspondence and other records documenting Arizona and California’s efforts to rebuff tribes’ attempts to secure water rights. It’s a legal battle that the Navajo Nation and many of the 30 federally recognized tribes in the Colorado River Basin have been waging for decades despite a 1908 Supreme Court ruling and existing treaties that were supposed to ensure their water rights in the American Southwest.

McMillen’s findings were the basis of a new investigative report published jointly this week by ProPublica and the High Country News putting a spotlight on those states’ efforts to block — and the efforts of the Department of Justice staff to protect — tribal water rights. The investigative report identifies similarities in the way states have continued to block tribes’ efforts to access water in the seven decades that followed the 1964 ruling.

McMillen talked with A&S communications about his research.  

Q: What was the impetus for going to the National Archives to investigate the Arizona v. California Supreme Court case?

CM: I started working on this last year, early in the fall semester. I returned to teaching last fall, which was a great way for me to get the gears moving again. [McMillen served the previous four years as Associate Dean for the Social Sciences in the College and Graduate School of Arts & Sciences] I taught a class called “Treaties, Time and Power,” about American Indian law and land, and that really got me back to research.

I was always curious about the Arizona versus California case. It's a major, major water rights case between those two states, that involved American Indians, because there's such a massive Native presence along the Colorado River. That was an important water rights decision for American Indians, but I didn't really know then, of course, any of what I subsequently learned.

Q: Where did your research begin?

CM: When I first started, I was looking at the papers of the Association on American Indian Affairs, an advocacy organization that was very, very active in the 1940s, ’50s, ‘60s and ‘70s. They had a file on the case which indicated that there was a fair amount of interest. Not just among them, but among the tribes in the Southwest. That’s where I learned the Department of Justice had filed a petition for intervention where they claimed that the Indians had prior and superior rights to the river, but that the Attorney General retracted the petition a few days after buckling to the pressure of Arizona. That really pricked up my ears, and I wondered, ‘What on earth is going on here?’ And that kind of spun me on my way.

Q: How many weeks or months did you spend uncovering and studying these records?

CM: A lot of time, and it’s still ongoing. In fact, just last week I got nearly 2,000 more pages of material from the California state archives. I had to file a special records request, and they had to vet it all, all because they're legal records. All of the records from the Department of Justice were released under FOIA (Freedom of Information Act requests). … The Department of Justice has been very cooperative, and the National Archives has been very cooperative. I worked with two attorneys in the the natural resources division at Justice, and they were very helpful.

Q: And when did you begin talking with ProPublica’s Mark Olaide and Anna V. Smith of High Country News?

CM: We started talking last summer, sometime in June. ProPublica and High Country News had been jointly publishing a series of articles on tribal water rights in the contemporary period that were really interesting. I had been following their articles and the case of Arizona versus Navajo Nation which the Supreme Court heard this spring and I really liked what they were doing. I decided to write them and say, ‘I've been doing all this research on the origins of all of the tribal water rights on the Colorado River that I think help can really help explain the contemporary world we find ourselves in.’ … And so, we had a meeting, and I gave them what I thought were some good documents. They read them, and they said, ‘We think there's enough here. We want to do a story’ From there I shared much more. It was important to me that the story get out there. It would have a much wider reach in ProPublica and High Country News than it would in an academic journal.

Q: One of the surprising things that comes through in the Pro Publica/High Country News article based on your research was the effort by the Department of Justice’s to intervene in the fight between Arizona and California in the 1950s on behalf of Native tribes. What did you mean when, in describing the Department of Justice’s novel legal theories and push for funding to hire respected experts and conduct extensive research in support of tribal water rights, that the DOJ found itself “flying the plane and building it at the same time”?

CM: Defending Indian water rights was still very novel and new at that time. Not a lot of people knew much about it, and no case of this magnitude had ever come to the Supreme Court. Never had this many resources been put into both exploring and then subsequently defending American Indian water rights, and they were all doing it in real time. … They were testing out legal theories in front of the special master as they developed them. There’s now a very large body of law on water rights and Indian water rights. But in the 1950s, that wasn't the case.

In many respects, the Department of Justice did as good a job as they could. A lot of Native water rights were preserved in the ultimate decision of Arizona versus California, but I think the main point of the article, and of a lot of my research, has been the opportunity that was lost.

Q: What was it like, as a historian, to have investigative journalists work on this material?

CM: I really admired the work that Mark and Anna had done on tribal water rights. They had written some great articles and know what they are talking about. When I approached them, they understood this was a deeply historical story, but one connected to the present. One of the things we talked a lot about is how the history of this case connects to what's going on now. As a historian, I was pleased to see how committed they remained throughout to writing this as a historical story.

Q: The ProPublica/High Country News article is based on just a fraction of the records you uncovered. What’s next?

CM: I plan on publishing my own academic work on it, eventually, but I don’t have a timetable set for that yet because I have another big project I’m working on simultaneously. I’ll keep you posted.