“Our Winters’ Rights”: Challenging - Am MIT spezialisierte KI-Forschung

“Our Winters’ Rights”: Challenging
Colonial Water Laws

(cid:129)
Andrew Curley

Abstrakt
Much of the scholarship on Indigenous water rights in the United States focuses on legal and
political rights awarded or denied in water settlements. This article highlights the voice of
settlement opponents within Diné communities over the proposed Little Colorado River
Settlement in 2012 between the Navajo Nation and Arizona. Using interviews with key actors,
observations of water hearings, and a mini focus group with settlement opponents, Mein
research ﬁnds that the proposed water settlement produced contradictory logics, Praktiken Methoden Ausübungen,
and frameworks that combined two “traditions of Indigenous resistance,” one rooted in
the language of self-determination and sovereignty and the other in emerging notions of
decolonization. This hybridity of seeking increased water recognition within colonial law,
while advocating for decolonial waterscapes, speaks to the complicated and fundamen-
tally entangled political landscapes of Indigenous peoples. Letzten Endes, in opposing the
water settlement, Diné opponents and community members demonstrate that they seek
to rectify the injustice of ongoing settler colonialism and realize their collective capabil-
ities as nations, not “Indians,” “tribes,” or “minorities” within and against the authorities
of the colonial state.

On April 5, 2012, US senators Jon Kyl and John McCain from Arizona met with
Navajo Nation Council delegates in the western Diné community of Tuba City. Ihre
intent was to persuade lawmakers to settle Navajo claims to the Little Colorado River,
a dry and shallow waterway that originates high in the mountains of central Arizona
and concludes at the conﬂuence of the main Colorado River, just north of the Grand
Canyon. The settlement established the terms by which the Navajo Nation would
forever “resolve” its collective claims to the river in exchange for small water infra-
structure and remaining waters after upstream diversions are taken into account.
Although the tribal government was initially in favor of the agreement,
much of the Diné community rejected it and mobilized outside of the meeting
to express their collective frustration and discontent.1 They criticized governing

I use the term Diné, the proper name for people whom colonists have called “Navajo.” Navajo
is a colonial word. It is misunderstood and mispronounced Tewa that was ﬁrst used by the
Spanish in the seventeenth century to refer to the Diné people. It is still the ofﬁcial name for
the “Navajo Nation,” the political authority, created in 1937, to oversee 1868 treaty rights
between the Diné people and the United States. In diesem Artikel, Diné refers to the actual people,
whereas Navajo refers to the tribal government.

Globale Umweltpolitik 19:3, August 2019, https://doi.org/10.1162/glep_a_00515
© 2019 vom Massachusetts Institute of Technology. Veröffentlicht unter einer Creative Commons Namensnennung 4.0
International (CC BY 4.0) Lizenz.

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58 (cid:129) “Our Winters’ Rights”

ofﬁcials and reminded them that “water is life.” Much of the narrative of water
rights and Indian water settlements in the United States focuses on the legal-
political “rights” to water that tribes maintain within western water laws (Burton
1991; Colby et al. 2005; Curley 2019b; McCool 2006; Perramond 2018; Thorson
et al. 2006). These are important studies because they document the structuring
of water use in practice. But the emergent perspectives of water and law among
community actors is sometimes missing from these narratives, das ist, Die
grounded understandings and decolonial strategies that both use and negate
colonial laws.

Kürzlich, Yazzie and Baldy (2018) emphasized the “decolonization” of
waterscapes as a pathway to radical Indigenous knowledge and practices around
Wasser. For Yazzie and Baldy, decolonization is not simply a metaphor, as Tuck
and Yang (2012) Leg es, or a practice of “awareness raising” (Schmied 2013); es ist
material struggle. My research ﬁnds that this struggle produces contradictory
logics, Praktiken Methoden Ausübungen, and frameworks that combine traditions of Indigenous resis-
tance with a dominating discourse of rights to water. In highlighting the dialog,
debate, and discourse over the future of the Little Colorado River, dieser Artikel
seeks to document ongoing, expanding, and changing notions of water gover-
nance for Indigenous peoples today, notions that speak to both rights and de-
colonization. The central point is that Diné water governance transcends the
colonial limitations of western water law through use of both pragmatic and
decolonial practices. Diné advocates work to maximize water quantiﬁcation
while supporting the idea of traditional water uses for sustainable lifeways. Das
hybridity of seeking increased water recognition within colonial law, while
advocating for decolonial waterscapes, speaks to the complicated and funda-
mentally entangled political landscape of Indigenous communities that our
critical politics sometimes ignores, misses, or downplays.

This article highlights the voices of the Diné people who resisted what ap-
peared to be the inevitability and ﬁnality of a water settlement. Their critiques
provide an important understanding for how we might interpret water settle-
ments and decolonization between Indigenous peoples and colonizing states.
Schlosberg and Carruthers (2010), Zum Beispiel, ﬁnd that questions of justice
for Indigenous peoples are not concerned simply with distribution of resources
but also with the “capability” of the resources to fulﬁll the well-being of a
people at the level of the collective. They emphasize that justice for Indigenous
peoples is community based and capabilities centered. Like Ciplet et al. (2013),
they build on Sen’s (2009) notion of justice related to achieving the fulﬁllment
of people’s capabilities. Jedoch, this approach misses the historic critique of
unrectiﬁed settler colonial theft that is repeated in Indian water settlements.
Indian water rights were designed to fulﬁll the colonial purpose of reservations.
They were not meant to resolve senses of injustice or wrongful dispossession
inherent within the structure of U.S. colonial governance. Although Diné critics
speak in the language of law and legalism when they exclaim “our winters’
rights,” referencing an important Supreme Court decision that I will discuss

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Challenging Colonial Water Laws: A. Curley

(cid:129) 59

später, they are also speaking beyond the law and to these broader notions of
justice that cannot be resolved in a water settlement. It is not the particulars
of the settlement that mobilize Diné resistance but the inherent sense of injus-
tice that water settlements reproduce.

In the presentation of this argument, I follow Diné thinking and planning
philosophies.2 Diné opposition to the Little Colorado River Settlement was not
simply a shared understanding among actors; it was an intellectual process. Erste,
there was thinking and planning—highlighted in the section titled nitsáhákees
dóó nahat’á. In diesem Abschnitt, I show how opposition to the water settlement
was built on two ideological trends and frameworks in Indigenous activism, na-
tion building, and decolonization. These trends framed the argument against the
proposed water settlement and addressed the larger notion of injustice in the col-
onization of Indigenous water sources. Nachher, I highlight how Diné people
acted and lived out this thinking and planning in action—collective opposition
to the settlement. Action was called iina, which also refers to “life,” toh éí ííńá or
“water is life.” Finally, siihasin calls on us to reﬂect on what was learned and derive
some preliminary conclusions. I conclude that the struggle was an effort to
reclaim and revitalize Diné lifeways.

My research suggests that Indigenous opponents to water settlements built
their frameworks on a sense of rights and recognition that is rooted in ideas of
traditional knowledge and historic practices on the land. Proponents under-
stood these practices as better suited for sustainable living than existing quan-
tiﬁcation schemes provide. Their frameworks blended statist and aboriginal
conceptualizations of water into a bundle of complicated and contradictory
ideas of inherent Indigenous water rights. Both nation building and decolonial
notions of Indigenous water governance undermined the legitimacy of colonial
water laws while positing a sense of inherent rights to the water in the interest of
increasing the amount of water the Navajo Nation was owed. The de- in deco-
lonial did not completely negate colonial institutions as a site of struggle and
advocacy. Eher, opponents reworked and repurposed colonial infrastructures
toward Indigenous lifeways and decolonial nation building.

Methodik
I base my ﬁndings on interviews and observations with tribal organizers, Aktivisten,
community members, and lawyers. These interviews were conducted in 2012 Dauer-
ing the settlement debate. I used purposeful sampling in selecting my interview
Teilnehmer. In Summe, I conducted fourteen in-depth interviews with leaders, law-
yers, Aktivisten, and Diné community members. I also observed and participated in
ﬁve public events related to the settlement. After the debate was concluded and the
political outcomes were certain, I conducted a mini focus group with opponents
who translated their work against the settlement into a new campaign to defend
“the conﬂuence” of the Little Colorado River and Colorado River. They spoke

2. https://www.dinecollege.edu/

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60 (cid:129) “Our Winters’ Rights”

about the inherent importance of water. Most of my observations and analyses
come from living in the area from January 2012 bis Januar 2013. I traveled
with settlement opponents to public forums and discussed aspects of the settle-
ment with them over the hundreds of miles and many hours between these
places. I conversed with Diné scholars and critics informally, while formally
interviewing Navajo Nation ofﬁcials and lawyers. It was through this process that
I was able to identify the difference in frameworks and understandings of the
actors involved in constructing the meaning of the settlement.

Water Rights and Water Colonization

Everyday Diné people challenged the terms of the water settlement because they
felt it undermined a collective sense of inherent Diné “winters’ rights,” a refer-
ence to the now famous 1908 US Supreme Court decision that is the legal basis
for quantifying “reserved” “Indian” water rights. Winters’ limited water to the
“purpose” of the reservation under colonial water law. It was not, as some char-
acterize, a recognition of inherent rights to water. It was a much narrower guar-
antee of water for lands that the Supreme Court considered (and still considers)
federal territory (Shurts 2000). It spoke to terms of treaties and not inherent
Indigenous rights. In their activism, Diné organizers and community members
transmuted this legal reference into a rallying cry. They claimed that Diné
people ought to have rights under existing water laws that respect their historic
occupancy and relationship with the environment. Diné activists reworked the
meaning of winters’ to refer to both legal-political recognition of rights and a
way to decolonize systems of water governance. Mit anderen Worten, Diné water
activists sought to gain the maximum rights within existing water regimes while
acknowledging the colonial origins of the law.

Single mothers, part-time students, community organizers, and both un-
employed and underemployed Diné people traveled hundreds of miles from
where they worked and lived to where lawmakers held community forums on
the terms of the settlement in order to express this sentiment. In my obser-
vations of the water hearings, I saw that members of the Diné public showed
skepticism, worry, frustration, and cynicism concerning the actions of the tribal
government. In public testimony and private conversations, they expressed
concern about what water would remain for the future in a settlement that pre-
served colonial inequalities. For Diné proponents of the settlement, most who
worked for the tribal government, the allocation of the Little Colorado River
would have secured desperately needed water and infrastructure for reservation
communities. It would have helped to fulﬁll the purpose of the reservation
under existing legal requirements and might have contributed to the improved
well-being of Diné communities.

For Diné critics, water settlements were also colonial mechanisms meant
to minimize Indigenous water rights (Jones 2011; Yazzie 2013). Earlier schol-
arship on “tribal water rights” characterized these agreements as a form of

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Challenging Colonial Water Laws: A. Curley

(cid:129) 61

colonial dispossession (Back and Taylor 1980; Burton 1991; Wilkinson 1985).
More recent work, Jedoch, tends to avoid critique in favor of a realistic tone.
Heute, lawyers and some scholars, many of whom are not members of Indigenous
nations, suggest that tribes ought to settle water claims in order to avoid costly
litigation and the unpredictability of court rulings (Cornell et al. 2008; Thorson
et al. 2006).

Water settlements are also ontological constructions that convert rivers
into notions of “acre-feet,” divorcing water from the land, Spezies, and kinship
Netzwerke. Indigenous peoples across the world oppose these kinds of colonial
limitations while working to maintain prior resource “jurisdictions” (Pasternak
2017). Indigenous water governance, which differs from colonial approaches,
prioritizes precapitalist and precolonial knowledge and practices that sustain
communities, economies, and life on the land (Daigle 2018; McGregor 2012;
Wilson 2014). In response to Indigenous activism, some colonial states are
starting to recognize Indigenous rights to water that move beyond simple util-
itarian logics, including notions of personhood and nonhuman rights (Bakker
2018; Lightfoot 2016; Ruru 2018; Todd 2018). But state-led processes of recog-
nition can undermine historic practices associated with the use of water and the
land while concretizing colonial dispossession. Critical Indigenous scholars
argue that a politics of recognition fundamentally undermines Indigenous
lifeways (Coulthard 2014). Audra Simpson (2014), Zum Beispiel, shows how
Mohawk communities contest the spatial claims and colonial authorities of
Canada and the United States through strategies of refusal. Other Indigenous
critics go further to challenge the authority of tribal governments and their
use of “sovereignty” as a continuation of larger processes of colonization (Alfred
2006). Some suggest that a way toward decolonial practices is through a “resur-
gence” of Indigenous lifeways, including worldviews, ethics, and governance
(Alfred and Corntassel 2005; Corntassel 2012). Leanne Simpson (2016, 22)
writes that “Indigenous resurgence, in its most radical form, is nation building,
not nation-state building, but nation building, wieder, in the context of grounded
normativity by centring, amplifying, animating, and actualizing the processes of
grounded normativity as ﬂight paths or fugitive escapes from the violences of
settler-colonialism.”

In the United States, Indigenous resurgence and notions of cultural re-
newal have inevitably interlinked, intersected, and become “entangled” in
practices of nation-state building (Cornell 1988; Dennison 2012; Nagel 1997;
Lambert 2007). In manchen Fällen, “resurgence” works through and against colonial
structures. It can be a way to expand ideas of sovereignty and incorporate Indig-
enous ontologies into institutions of governance. For more than thirty years, Die
Navajo Nation has worked to inscribe notions of “fundamental law” into the
governing structures of the Navajo Nation (Austin 2009; Lee 2013). Navajo
Nation lawmakers have also embedded unique Diné governing ethics, traditions,
and principles into Navajo statutory law, despite the colonial origins of this law
and system of government. These form contradictory “politics of tradition” that

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62 (cid:129) “Our Winters’ Rights”

can be as reactionary as they can be liberating (Denetdale 2006). Heute, Die
authority of the Navajo Nation and the decisions it makes are the arenas of gov-
ernment and nongovernmental politics and protest (Powell 2017; Powell and
Curley 2008). Diné activists challenge the policies of the tribal government while
promoting traditional understandings of water and land (Lister and Curley 2017;
Powell 2015). In 2012, opposition to the Little Colorado River Settlement called
for the tribe to use its authority to reject the agreement. Although the council’s
authority has colonial origins, the Navajo Nation Council eventually voted down
the settlement in response to the protests documented here.3 This resource colo-
nialism was successfully challenged and rejected by Diné people defending their
rights to water. The settlement died in Congress from inaction.

Construction of Colonial Water Laws

White settlers moved into the region only after the United States forcefully
removed Diné and Apache peoples onto reservations and away from the origin
of the Little Colorado River in Arizona’s White Mountains.4 From the beginning,
the colonial political and legal structures of water governance disadvantaged
Indigenous nations. Water colonization was part of a larger project of settler
colonialism in the United States and Canada. Like land and territory, settlers
intruded onto Indigenous water systems. In western states and provinces, Wo
the climate is drier, settlers displaced Indigenous communities and diverted
limited waterways into expanding agricultural ﬁelds and livestock watering
holes (see also Norman, this issue). They built towns and dams while denying
the ﬂow of water downstream to Indigenous peoples, who were forced onto
reservations.

By the 1920s, western states needed to legalize their theft of western water
sources. The Colorado Compact of 1922 unilaterally allocated the entirety of the
Colorado River and its tributaries to the seven “western” states who met in Santa
Fe to divide the river. Subsequent state water law ignored prior Indigenous claims
and usage of water sources and was built on this agreement. Hydrologic estimates
at the time were crude and incomplete. The Colorado River was overestimated
and overallocated (Abruzzi 1995; Weatherford and Brown 1986). Indigenous
rights to the river or any of its tributaries were purposefully ignored, wenngleich
the US Supreme Court had ruled that tribes were entitled to water only fourteen
years earlier.

3. https://navajotimes.com/news/2012/0712/070512water.php, last accessed June 26, 2019.
4. Throughout this article, I use the term white to refer to peoples who are considered white in US
racial formations, whereas settler refers to people engaged in the dispossession and occupation
of Indigenous lands. Oft, white and settler overlap, but not always. White speaks to presumed
racial difference, whereas settler refers to political difference. I also use the terms Indigenous and
tribe seemingly interchangeably, but tribe refers to the political/racial categorization of Indig-
enous peoples in “US federal Indian law,” how it is commonly referenced. Mit anderen Worten, es ist
a particular Indigenous experience unique to the United States that shapes Indigenous iden-
tities, Politik, and approaches toward decolonization.

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Challenging Colonial Water Laws: A. Curley

(cid:129) 63

The origin of Indigenous entanglements within colonial water laws goes
back to the Winters US Supreme Court decision in 1908. White ranchers in
Montana denied the Milk River to downstream Nakoda and Aaniiih peoples,
who were forced onto the Fort Belknap reservation. Winter (“Winters’” was a
clerical error), the main plaintiff in the case, argued that tribes had forfeited
their rights to surface water when they signed punitive treaties with the United
Zustände. Winter and others argued that reservations only guaranteed land, nicht
Wasser (McCool 2006). The Supreme Court eventually rejected this argument
and ruled that reservations, as federal lands, maintained “reserved” water rights
(Shurts 2000). Following this decision, Indigenous nations asserted stronger
water claims through the US court system using this logic.

In western states and provinces, water laws became expressions of
nineteenth-century utilitarian logics of resource exploitation and commodi-
ﬁcation. These laws “produced” or constructed nature according to the ontol-
ogy of the settler colonialist and exerted claims over Indigenous jurisdictions
(vgl. Nadasdy 2007; Pasternak 2017). Water laws generated new sociopoliti-
cal, cultural, and legal realities ( Jepson 2012). They differ from state to state,
or province to province, but they construct new environmental realities
around them. From the perspective of white settlers, western waters were
erratic and infrequent. Sometimes riverbeds ran with water, especially during
monsoon seasons, but most of the year, they were dry. Western water gover-
nance required a radical reorientation of how water was understood and
accounted for (McCool 2006; Shurts 2000). Moving away from riparian sys-
tems in the east, western water law worked to make water both legible and
quantiﬁable ( Wilkinson 1985). To this day, the legibility of water is a regular
concern for hydrologists, who have concluded that the waters are over-
allocated. These waters are also declining because of decreasing snowfall in
the winter and increased evaporation in the summer linked to damming and
processes of climate change.

Since the late 1970s, water “settlements” have become the standard legal-
political mechanism through which Indigenous nations gain any “right” of
access to western waters (Thorson et al. 2006). The Supreme Court ruled in
1971 that the 1952 McCarran amendment, which waived US sovereign immunity
in the case of water rights adjudication, also applied to water rights litigation be-
tween tribes and states. State courts were made the venue of litigation, despite the
fact that they are less supportive of Indigenous authorities. Tribes compete with
state governments for control over the same resources. Folglich, tribal gov-
ernments feel pressure to settle their water claims instead of risking what little
rights they might get through litigation.

Water settlements are among the last enclosures of Indigenous resources on
the continent (Curley 2019b). Much of the scholarship on “tribal” water rights
has focused on the legal opportunities for tribes to resolve water claims under
US and state water laws. Jedoch, there is a deﬁcit in how we understand local
reactions to water laws and “settlements.” Part of the reasoning for settling water

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64 (cid:129) “Our Winters’ Rights”

claims has to do with the future reliability of water supplies for expanding towns
and cities in western states. The increasing threat of climate change on the lands
and waters of a hotter, drier Southwest has intensiﬁed the concerns of Indigenous
community members, Aktivisten, and tribal ofﬁcials alike. Patterns of settlement in
the region never resolved water claims for Indigenous peoples because Indige-
nous peoples were initially excluded from making claims to surface water sources
(Jones 2011). Heute, state governments are anxious to resolve Indigenous water
claims because, in theory, Indigenous communities have “senior” or superior
rights.5 Such claims could disrupt the nature of water commodiﬁcation and
consumption in Arizona that currently supports ranchers, agribusiness, and urban
expansion. There is a political economy to water distribution in the US Southwest
that disfavors tribes, and Indigenous peoples are aware of it.

The Navajo Nation has been relatively late in settling its water claims.
Other tribes, such as the Gila River, Apache nations and the Pueblo of Zuni,
have entered into settlements with the state of Arizona over the past two
decades. Seit 1985, the Navajo Nation has maintained water rights attorneys
to work on settlements and litigation. Jedoch, the tribe did not create an
independent “water rights unit” until 2002. Perhaps the creation of the unit sig-
naled the desire to settle rather than litigate Navajo water claims. Despite more
than thirty years of water rights litigation, the Navajo Nation has only settled one
water case—the San Juan River Settlement in 2005. Water settlements are new for
the Navajo Nation and are a form of “new federalism,” an era in which the federal
government encourages tribes to negotiate “compacts” with states for rights to
develop casinos or water resources (Corntassel and Witmer 2008). Gordon
(2015) documents the mechanisms by which federated governments, wie zum Beispiel
Canada or Australia, balance obligations to climate change frameworks with
diverse and divergent regional interests. In a settler colonial context, obwohl,
new federalism translates into prioritizing regional governments and colonizing
interests over tribes.

All water settlements between tribes and states require congressional
approval. The entire process gives states strong advantage over tribes because
they inﬂuence the political process and money ultimately allocated in water set-
tlements. The Little Colorado River Settlement Act of 2012 included not only
the settlement but also provisions to extend the life of the Navajo Generating
Station, a controversial power plant on the western end of the reservation, für
another twenty-ﬁve years (Curley 2019a). The main rationale that Navajo
Nation lawyers gave for the settlement was a sense of political certainty. Sie
did not believe that the Navajo Nation had a better chance of challenging state
water claims in state courts. Tribal lawyers believed that new agreements were

5. Many state water laws in the western United States incorporate the legal doctrine of prior
appropriation. This approach to water allocation awards the ﬁrst documented user of surface
waters “senior” claims to the water. Subsequent users are awarded less and less seniority. In
times of drought, the users with the strongest senior claims have the right to fulﬁll their use of
the water before anyone else, and perhaps at the expense of everyone else.

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Challenging Colonial Water Laws: A. Curley

(cid:129) 65

the only sure pathway to getting rights. Aus diesem Grund, Navajo Nation lawyers
strongly recommended “settling” water rights claims.

Another incentive was the promise of infrastructure development. Viele
water settlements come with federal monies for the planning and construction
of critical water infrastructure. But these agreements require tribes to forever re-
linquish greater claims to their water. It is the only way the federal government
is willing to spend money on infrastructure within reservations. The prospect of
immediate “wet” water, or water that is tangible with promises of infrastructure
development is enough to convince tribal lawmakers to agree to terms that are
binding forever. Many Diné challenge the idea of quickly and permanently set-
tling water claims for less than they believe are the tribe’s inherent rights. Tribal
ofﬁcials, Jedoch, feel that these settlements are the best chances for Indigenous
nations to maximize their water claims in the context of the colonializing state.
In the next section, I will demonstrate how opponents construct their divergent
and much different interpretation of rights in their opposition to water settle-
gen. Justice is linked not to well-being but to revitalization.

Nitsáhákees dóó nahat’á: Thinking and Planning Diné Water
Governance
When I started ﬁeldwork in January 2012, Navajo people were already discuss-
ing the proposed settlement and its terms. This was before any ofﬁcial action
related to the agreement had occurred. It was an issue Diné activists, elected
tribal ofﬁcials, and community members regularly talked about. There was
something about water that resonated among Diné people beyond other kinds
of resources, even land. Water is life. It is the origin of many Diné place-names,
clans, and communities. The negotiation between the Navajo Nation and the
state of Arizona was supposed to be secret. Yet people outside of power already
knew about it. Tribal ofﬁcials told their relatives, who in turn told their friends.
It was an open secret among Diné people who followed Navajo Nation politics
that John McCain and Jon Kyl were scheduled to meet with the Navajo Nation
Council and Navajo Nation president in Tuba City.

Immediately, Diné activists organized a protest against the “secret” meet-
ing. Interviews at the time reveal that organizers were not aware of the terms of
the settlement, since the agreement was conﬁdential. But Diné activists opposed
the meeting because they suspected the senators would pressure tribes to accept
bad terms. The circumstance of the meeting bred suspicion. It reminded people
of past deals when tribal lawmakers were swindled over the value of tribal re-
sources. This was true, Zum Beispiel, in the coal leases that the Navajo Nation
signed in the 1960s with Peabody Coal, when the tribe received thirty-six cents
per ton of coal (Ambler 1990).

The ﬁrst event organized against the settlement was a “water conference”
on March 29, 2012, in an auditorium of a boarding school called Rocky Ridge.
This was a gathering of hundreds of participants. The main speakers were former

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66 (cid:129) “Our Winters’ Rights”

tribal ofﬁcials, such as former chairman of the Hopi Tribe Ben Nuvamsa and
former Navajo Nation chairman Peter McDonald.6 Both speakers opposed the
settlement. McDonald used an analogy of a thief stealing sheep and then trying
to sell them back to you for a proﬁt. He focused on the historic injustice in-
herent in the water rights framework. Organizers invited people they knew
who were opposed to the deal and who would challenge the terms of it. Diné
and Hopi people presented arguments against the settlement. But these voices
were later excluded during the ofﬁcial forums that the Navajo Nation Ofﬁce of
the President and Vice President sponsored, giving a sense of how tribal ofﬁcials
wanted to construct the debate.

“Our Winters’ Rights”
It was during this water conference when I ﬁrst heard a speaker refer to “our
winters’ rights.” Winters’, as was discussed earlier, was a reference to colonial
law. Jedoch, speakers thought of it as both rights to quantiﬁed water under
existing water frameworks and Indigenous rights to water that transcend these
laws. In the process, Diné water activists built on two different traditions of
Indigenous activism. The ﬁrst was the self-determination movements of the
1960s and 1970s, culminating in the founding of the American Indian Move-
ment and the defense of Wounded Knee in 1973 (Cobb and Fowler 2007;
Shreve 2012; Smith and Warrior 1996). This movement exposed long-standing
neglect and racist attitudes toward Indigenous nations in the United States. Es
forced new laws to guarantee rights of “self-determination” for “federally rec-
ognized” Indigenous nations ( Wilkinson 2005). It was evident that the older
generation of activists and organizers relied on this tradition. They used the
rhetoric of sovereignty and self-determination to reinterpret the meaning of
winters’. The second, newer tradition was the politics of decolonization that
informed many of the younger activists and organizers at the forum. Their refram-
ing of self-determination through everyday acts of decolonization profoundly
changed the way younger Indigenous scholars, Aktivisten, and organizers ap-
proached the question (Curley 2018). Estes (2019, 21) argues that today’s
activism is rooted in “traditions of Indigenous resistance” that “draw upon ear-
lier struggles and incorporate elements of them into their own experience.” In
the case of Diné politics of decolonization, not only do organizers, Aktivisten, Und
community members build on past rhetoric but they also challenge and change
its meaning. These traditions of Indigenous resistance have cleavages in ap-
proach and politics. These cleavages were exposed in the mobilization for and
against the settlement in the Navajo Nation.

The two positions were distinct but contained strong areas of overlap. Der
ﬁrst thread, the “nation-building” position, opposed the settlement because it

6. www.navajotimes.com/news/2012/0312/032912water.php, last accessed June 26, 2019.

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Challenging Colonial Water Laws: A. Curley

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reduced what was assumed to be the tribe’s much larger inherent rights to water.
This position assumed the logic of quantiﬁcation by basing its claims on winters’
and colonial water law. It made claims for political parity in the international
system of states, which undermines the premise of US colonialism as politically
superior to the rights of tribes (Wilkins and Lomawaima 2001). From my ob-
servation, it was the older men who once served as tribal lawmakers who grav-
itated toward this position. The former lawmakers had fought for Indigenous
national self-determination in the 1970s and 1980s. They have come to under-
stand tribal control over resources through formal political and legal institu-
tions as the prime goal of “sovereignty.” In 1975, Peter MacDonald founded
the Council of Energy Resource Tribes (CERT) to challenge US hegemony over
resources on tribal lands (Allison 2015). To them, the maximum quantiﬁcation
of water rights for the Navajo Nation was the meaning of inherent rights to wa-
ter. In this reading, winters’ was akin to treaty rights. The nation-building posi-
tion insisted on more water rights under existing quantiﬁcation schemes.

The decolonial position was broader in meaning and often diverged from
the nation-building framework. A decolonial critique of the settlement came
from younger Diné from Indigenous and environmental groups. Their main
point was that the Little Colorado River Settlement was understood as a geopo-
litical giveaway to Arizona and the city of Phoenix. Although the Little Colorado
River did not directly impact waters going to Phoenix, as Navajo Nation water
lawyers quickly pointed out, younger activists and organizers understood the
larger geopolitical signiﬁcance of water in Arizona. Their grounded theory on
water settlements spoke to history of colonialism and the capitalist existential
need to settle water rights. They directed attention to the political inequalities
and power differences between tribes and states that lawyers and elected ofﬁcials
purposely ignored.

The decolonial position recognized that this political inequality had envi-
ronmental ramiﬁcations. It diverted natural water ﬂows into unnatural storage
banks and starved downstream Indigenous communities of life-sustaining waters.
Zum Beispiel, shortly after the water rights forum, activist Klee Benally organized a
march through downtown Flagstaff to oppose the water rights settlement as a
violation of Indigenous belief systems. He brought attention to the use of efﬂuent
wastewater for snowmaking on Dook’o’oosłííd, one of the sacred mountains to
the Diné and Hopi peoples.7 He and others used the language of human rights to
claim that the ski resort and the Little Colorado River Water Settlement Act
violated human rights and rights against nonhuman relatives. They were opposed
not only to the speciﬁc projects and the injustices that these projects perpetuated
but also to “the production of nature” that was in service of capitalist accumula-
tion at the expense of the right of animals. They were critical of development as a
source of destruction of Diné and Hopi lifeways.

7. www.nytimes.com/2012/09/27/us/arizona-ski-resorts-sewage-plan-creates-uproar.html, last

accessed June 26, 2019.

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68 (cid:129) “Our Winters’ Rights”

Tó éí ííńá: Challenging Colonial Water Laws

By the time the April 5th meeting occurred, hundreds of Diné protestors were
motivated to challenge Kyl and McCain in Tuba City.8 After about an hour of
dialog between tribal lawmakers and Kyl and McCain, the two senators suddenly
links. They disappeared in their black SUVs and would not return again. It was now
time for the lawmakers to face the hundreds of Diné people who opposed the
settlement and had just witnessed their leaders’ deference to powerful colonists.
The crowd started chanting. They called then-president Ben Shelly names. Eins
young man refused to shake Shelly’s hand, and Shelly told him that he was
not really Diné because he denied a gesture of goodwill. Shelly became increas-
ingly frustrated. He was supposed to address the crowd from a stage and proclaim
that he was on the path to securing Diné water rights. He might have expected the
meeting to look good for him. But the crowd was more and more upset and call-
ing for the protection of Diné water. Shelly took to a stage and lectured the people
about respect. The crowd heckled him. Shelly left in frustration. Navajo Nation
Council delegates spoke to the crowd and tried to assure them that the settlement
was not complete. They said the public would have an opportunity to speak to
Es. But the public remained skeptical. Caroline Johnson, an opponent of the
water settlement, sagte,

I have been a strong advocate to preserve our resources here on Indian land.
It’s a lifetime commitment for me. If you are to look at the history of the
Indigenous people on this continent, we’ve been struggling for years at a
Zeit. And there are things that come, say for instance, coal, the natural re-
source that is being taken, Wasser, and that’s going to be one of our strongest
demands, is preserving what is there. Because if there is no water, es gibt kein
guarantee of life prevailing. That is my strongest stand. What is going to be
there for my children? What is going to be there for my grandchildren?

Johnson related the future of the Diné people to future access to water.
Water is life, and without water, “there is no guarantee of life prevailing.” Louise
Benally, another opponent, sagte,

And we are here advocating on behalf of all living species including those
that can’t speak and so these waters have been here long before the colonial
ways have come here and we want to continue to use these waters without
limits or regulations because it is a natural resource that was always here and
for the state governments and state ofﬁcials and tribal governmental people
to lay down rules and regulations and sell it all out away from us isn’t …
acceptable.

Anna Frasier, a Navajo environmental activist, sagte, “We are people that
plant corn and whatnot and we can’t do that if they take all the water right away
from us. And then we want the water for our grandchildren for the future

8. Excerpts from opponents were based on journalist Shelley Smithson’s unpublished interviews

with protesters at the Tuba City event.

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Challenging Colonial Water Laws: A. Curley

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generation.” These are environmental sustainability frameworks to interpret
water settlements and quantiﬁcation, but the language of “inherent,” “Indige-
nous,” or “aboriginal rights” emerges from the statements of settlement oppo-
nen. Marshall Johnson, another well-known Navajo environmental organizer
focused on the loss of rights in his remarks: “We are basically wavering our orig-
inal rights, our ﬁrst priority rights. Our ﬁrst reserve rights. I mean, Die Vereinigten Staaten
won in court on our behalf, in the Winters’ doctrine ruling. . . . We are getting
ready to send that down the river.” Former Navajo Nation president and grass-
roots activist Milton Bluehouse Sr. sagte, “I want to know what criteria was used
to quantify the water that they are trying to give us. I think it should be quantiﬁed
based on the daily uses we have. And then respect the Winters’ doctrine—reserve
water that was given to us.” These references to inherent rights speak to the
sovereignty-nationalism understanding of water, rights, and resources.

For proponents of the settlement at Tuba City, it would guarantee water
rights for the Diné people, rights that were in jeopardy of being lost if not quan-
tiﬁed. Those who favored the water rights settlement sincerely believed they
were doing the right thing for the Diné people. Shortly before meeting with
Senators Kyl and McCain in Tuba City, Shelly said, “We are going to give water
to our people. You need water, and I will do it.” In Shelly’s mind, the Diné
people could accept or reject the ﬁnal form of the water settlement through a
referendum vote, and this would be fair and democratic. Yet the tribe and the
state had already negotiated the terms of the settlement, and there was nothing
the Diné people could do to amend it. This was the problem some opponents
brought up. They could only accept or reject the settlement in its ﬁnal form
absent consideration of features of the settlement that they found disagreeable.
Diné people would continue to express this disagreement in hastily scheduled
public forums that were also trying to temper a collective criticism of the settle-
ment and its process.

Water “Hearings”

Water rights inspired an existential threat to the tribal government. Navajo
Nation ofﬁcials feared for their safety from their own people. Usually public
ofﬁcials travel with no security and regularly meet with people without police
protection. The water settlement was an exception. The strong feelings Diné
people showed toward water inspired fear in some Navajo Nation ofﬁcials.
Over the summer of 2012, the Navajo Nation Ofﬁce of the President and Vice
President organized a series of water rights hearings where “the people” would
have an opportunity to tell tribal lawmakers, speciﬁcally the Navajo Water
Rights Commission, how they felt about the water settlement. In Summe, tribal
ofﬁcials organized ﬁve public hearings. They were in the communities of Tuba
City, Piñon, Leupp, Oak Springs, and Fort Deﬁance. Only Leupp was along the
Little Colorado River. The other communities stood to beneﬁt from small water
infrastructure tied to the settlement. I attended three of the forums. The Shelly

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70 (cid:129) “Our Winters’ Rights”

administration organized the ﬁrst hearing in Tuba City. Although there were
enough people to ﬁll a gymnasium, organizers insisted on the much smaller
“chapter house.” President Shelly felt his safety was at risk. His people wanted
to control the crowd. All forum participants were required to go through a
metal detector before entering the chapter house. Capacity quickly ﬁlled. Viele
were turned away. Signs were banned. Protest around the chapter house was
eingeschränkt.

The hearing lasted nearly ﬁve hours. The Navajo Water Rights Commission,
ﬁve political appointees who were supposed to represent the public in water
rights negotiations, hosted the hearings. They invited President Shelly to speak
alongside other Navajo ofﬁcials in support of the settlement. The forums were
part of the commission’s mandate to inform and educate the Diné public on
the complicated legalese of water rights settlements. But it was clear to partici-
pants that the presentations were biased in favor of the settlement. The presenta-
tions highlighted only the positive aspects of the settlement. They avoided
discussing what rights the tribe would relinquish as part of the settlement. Wann-
ever anyone questioned the costs, forum ofﬁcials downplayed its risk.

At root concern for people was the permanence of the settlement. The set-
tlement spoke to Diné people’s relationship with water forever. Jedoch, Die
public was only given a handful of highly restricted meetings with biased pre-
sentations to assess the terms of the settlement. The Navajo Nation was asked to
decide quickly on the issues to keep pace with Congress, where the settlement
bill was under consideration as part of a centennial birthday gift for Arizona. Bei
the Oak Springs hearing, Diné environmental organizer Deon Ben asked, “Why
are they bringing this Senate bill on us so quick and making us make a decision
so quick. . . . You sugar-coated this to bring to the people, but you left a lot of
things out.” Raymond Berchman, former Navajo Nation Council delegate, sagte,
“The reason we have this forum, Politik. … I grade the presentation from one to
zehn, to me personally, a one. I have been working on water for the last thirty-ﬁve
Jahre, with the Navajo Nation [government] and with NTUA [Navajo Tribal
Utility Authority]. … To me I don’t believe it, compared to a statement that
was made somewhere along the line, they are twisted. Lawyers. How come there
is a Senate bill already going forward? It is not fair to us to give us three minutes.
If you are not in the water business, you don’t understand it. … And these are
my people here from Oak Springs.”

The ﬁrst forum was held and organized in Tuba City. It was packed. Most
of the audience spoke only Diné bizaad (the Diné language). Many spoke
against the settlement. They reiterated critiques I had heard earlier when talk-
ing with opponents. They said the settlement would forever relinquish claims
to the Little Colorado River in exchange for subpar rights to the river. Obwohl
proponents felt that only environmental groups were voicing opposition to
the settlement, I saw people at the Tuba City, Leupp, and Oak Springs forums
who were not part of any environmental organization and who were there
because they were concerned with what was happening to Diné water. Sie

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Challenging Colonial Water Laws: A. Curley

(cid:129) 71

were simply opposed to the settlement. They could not explain the terms of
the agreement or the legal context in which it was made, but they intuitively
knew that the Navajo Nation was getting a bad deal. One forum participant
in Oak Springs, a man who appeared to be in his early ﬁfties, was handed the
microphone after waiting in a long queue to speak. He expressed what many of
us were thinking at the time: the forums were simply trying to sell us on the terms
of the settlement and were not meant to inform us about them or give us space to
respond. The audience burst into applause. This was in a community where
proponents assumed people would be more supportive of the settlement.

The hearings were highly restrictive with regard to who could participate in
the conversation and what they could say. Organizers in the Ofﬁce of the
President and Vice President disallowed signs or T-shirts against the settlement.
They restricted commentary to Diné speakers, although the agreement and cor-
responding congressional legislation were entirely in English. This put both
Diné and non-Diné speakers at a disadvantage. Diné speakers had to rely on
ofﬁcial interpretations of the settlement from those who already supported it,
while non-Diné speakers were refused participation. Comments were restricted
to three minutes per person. This feature did not go over well in communities
Wo, following their own governing practices, people’s right to speak did
not have time restrictions and public comments often exceeded more than
ten minutes.

For many participants, their concerns were both about sovereignty and the
Umfeld. Diné people mobilized to question the future of Navajo water
under the legal parameters of a water settlement. Translators simpliﬁed the
legalisms involved, which was the focus of the presentations. The Navajo Water
Rights Commission and a few Navajo Nation Council delegates tried to trans-
late the meaning of this settlement into Diné bizaad. This made things more
confusing for people. They did not directly translate the legal language of the set-
tlement; they simpliﬁed it. And simpliﬁcation left out important considerations.
Presenters failed to address many parts of the settlement, such as the relinquish-
ment of the Navajo Nation’s ability to move land into trust. Although this in-
formation was given to Navajo Nation Council delegates through conﬁdential
memos, it was not discussed during the forums. Moving land into trust is the
only way for tribes, under federal law, to expand the size of their reservations.
This is important for people who have been violently displaced from their tra-
ditional lands and only now have the means to recover some of those lands. Der
settlement would have restricted the process.

The prospect of a permanent forfeiture of Diné rights to water was enough
to motivate everyday Diné people to show up and voice disagreement with the
proposed settlement. Whether or not opponents believed that Diné people
should move toward maximization of water quantiﬁcation under existing law,
or whether the tribe should fundamentally challenge the colonial premise of
water law in the ﬁrst place, opponents felt that the settlement needed to be
stopped and that the Navajo Nation and Diné people had to defend their water.

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72 (cid:129) “Our Winters’ Rights”

After the public hearings, the Navajo Nation Council voted on the proposed
settlement. The council rejected it 15–6 in early July 2012. Shelly was clearly
frustrated with the process. He tried to distance himself from the outcome.
The Hopi Tribe also rejected it. It could not go forward without consent from
the governing bodies of the two nations, governing bodies that the US govern-
ment had created. The settlement had died. Through mobilization around a col-
lective right to water and sense of impending injustice, the Diné people defeated
the proposed settlement agreement.

Siihasin: Reﬂecting on the Settlement’s Meaning

Diné people who were opposed to the Little Colorado Settlement asserted a
combined claim of legal-political rights deﬁned in western water law alongside
an appeal to historic aboriginal rights. “Our winters’ rights” was a combination of
the two frameworks. Previous generations of Indigenous activists had worked
tirelessly to challenge the foundations of colonial structures. In so doing, they de-
ﬁned Indigenous peoples as nations and not simply as racial minorities. Sie
worked to enhance the “rights” of tribes in the US federal system, often under
the rhetoric of “self-determination” and “sovereignty.” In interviews and observa-
tionen, I witnessed claims associated with this framework. Diné people believed
that their inherent rights to the region’s surface waters was compromised by
the terms of the settlement. Jedoch, they were not necessarily opposed to a
new and different agreement (or litigated court victory) that would increase the
water quantiﬁed and guaranteed to the Navajo Nation.

Andererseits, there was a strong thread of activism based in an ide-
ology of decolonization. Decolonization challenged many premises of “western
water law,” including the notion that people deserved rights to the water if they
colonized water sources and used it “productively,” which usually meant unsus-
tainably. Settlement opponents looked to Indigenous philosophies of water that
were pre-existent and fundamentally discordant to quantiﬁcation schemes and
notions of water rights. This speaks to what Coulthard and Simpson (2016)
refer to as “grounded normativity” or notions of Diné resource governance that
are rooted in ethics of care and responsibility for all peoples and nonhuman
peoples who use the water. Dams, diversions, large farms, and even some forms
of ranching would violate these alternative principles of resource governance.
Yazzie and Baldy (2018) argue that these politics of decolonization are deﬁned
by political struggle and radical relationality with nonhuman actors like water
(see also Todd 2018).

The question of rights and justice for Indigenous peoples is concerned not
only with the distribution of resources but also with the “capability” of the
resources to fulﬁll the well-being of a people. Schlosberg and Carruthers
(2010) identiﬁed similar tendencies in their comparative research in Chile
and the Navajo Nation. They found that justice for Indigenous peoples is com-
munity based and capabilities centered. Ciplet et al. (2013 used a version of this

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Challenging Colonial Water Laws: A. Curley

(cid:129) 73

capabilities argument, rooted in Sen’s Idea of Justice, to evaluate the priorities of
the United Nations Framework Convention on Climate Change. They found that
the language of adaptation fulﬁlled Sen’s more nuanced framework on justice.
Jedoch, politically, the convention favored the interests of powerful nations—
perhaps showing the limitations of this sense of rights and justice. Ciplet et al.
(2013) conclude that Sen’s “realization-focused” theory of justice attended to
the “actual behavior of actors” who work to mitigate but not transcend global in-
equalities. In the case of the Little Colorado River Settlement, Diné opponents and
community members demonstrate that they are attentive to Sen’s “capability” or
“realization-focused” notion of justice but fundamentally desire something much
more categorical. They seek to rectify the injustice of ongoing settler colonialism
and realize their collective capabilities as nations, not “Indians,” “tribes,” or “mi-
norities” who are meant to step aside for the greater good of the colonial state.
The water settlement failed. Kyl eventually retired from the Senate, Und
McCain died in 2018. State representatives and tribal ofﬁcials still talk about
resolving claims to the Little Colorado River, but little has advanced in the last
seven years. Proponents of the settlement characterized Diné opponents as
“uninformed” and said that they did not fully understand the limitations of
western water law. Diné opponents of the settlement did not misunderstand
western water law; they challenged its legitimacy. Within the forums, tribal ofﬁ-
cials wanted to limit the conversation to narrow dimensions of the settlement,
but Diné opponents chose to historicize it as a struggle against colonial injustice.
The appeal to “our winters’ rights” worked in the language of self-determination,
sovereignty, rights, and decolonization. It spoke to deeper rights and responsibil-
ity to water that settlements simply ignored. Am Ende, the struggle is to reclaim
and revitalize Diné lifeways.

Andrew Curley is an assistant professor in the Department of Geography at
UNC–Chapel Hill. His work on coal and development in the Navajo Nation
concerns Indigenous geography and critical development studies. His current
projects are on contentious water politics and land reform in the Navajo Nation.

Verweise

Abruzzi, W. S. 1995. The Social and Ecological Consequences of Early Cattle Ranching in

the Little Colorado River Basin. Human Ecology 23: 75–98.

Alfred, T. (2006). ‘Sovereignty’-An Inappropriate Concept. In R. Maaka and C. Anderson,
editors. The Indigenous Experience: Global Perspectives, 322–335. Toronto, ON: Canadian
Scholars Press Inc.

Alfred, T., and J. Corntassel. 2005. Being Indigenous: Resurgences Against Contemporary

Colonialism. Government and Opposition 40: 597–614.

Allison, J. R. 2015. Sovereignty for Survival: American Energy Development and Indian Self-

Determination. New Haven, CT: Yale University Press.

Ambler, M. 1990. Breaking the Iron Bonds: Indian Control of Energy Development. Lawrence,

KS: University Press of Kansas.

D
Ö
w
N
Ö
A
D
e
D

F
R
Ö
M
H

T
T

:
/
/

D
ich
R
e
C
T
.

ich
T
.

e
D
u
G
e
P
A
R
T
ich
C
e
–
P
D

F
/

1
9
3
5
7
1
8
1
8
4
4
1
G
e
P
_
A
_
0
0
5
1
5
P
D

B
j
G
u
e
S
T

Ö
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

74 (cid:129) “Our Winters’ Rights”

Austin, R. D. 2009. Navajo Courts and Navajo Common Law: A Tradition of Tribal Self-

Governance. Minneapolis, MN: University of Minnesota Press.

Back, W. D., and J. S. Taylor. 1980. Navajo Water Rights: Pulling the Plug on the Colorado

River. Natural Resources Journal 20: 71.

Bakker, K. 2018. Unceded Waters: Indigenous Water Governance in Canada. Vancouver, BC:

Institute for Resources, Environment and Sustainability.

Burton, L. 1991. American Indian Water Rights and the Limits of Law. Lawrence, KS: Uni-

versity Press of Kansas.

Ciplet, D., J. T. Roberts, and M. Khan. 2013. The Politics of International Climate
Adaptation Funding: Justice and Divisions in the Greenhouse. Global Environmental
Politik 13: 49–68.

Cobb, D. M., and L. Fowler. 2007. Beyond Red Power: American Indian Politics and Activism

seit 1900. Santa Fe, NM: School for Advanced Research Press.

Colby, B. G., J. E. Thorson, and S. Britton. 2005. Negotiating Tribal Water Rights: Fulﬁlling

Promises in the Arid West. Tucson, AZ: University of Arizona Press.

Cornell, S. E. 1988. The Return of the Native: American Indian Political Resurgence. Neu

York, New York: Oxford University Press.

Cornell, S., J. P. Kalt, and M. Begay Jr. 2008. The State of the Native Nations: Conditions
Under US Policies of Self-Determination. Oxford, England: Oxford University
Drücken Sie.

Corntassel, J. 2012. Re-envisioning resurgence: Indigenous pathways to decoloniza-
tion and sustainable self-determination. Decolonization: Indigeneity, Education,
and Society 1 (1): 86–101.

Corntassel, J., and R. C. Witmer. 2008. Forced Federalism: Contemporary Challenges to

Indigenous Nationhood. Norman, OK: University of Oklahoma Press.

Coulthard, G. 2014. Red Skin, White Masks: Rejecting the Colonial Politics of Recognition.

Minneapolis, MN: University of Minnesota Press.

Coulthard, G., and L. B. Simpson. 2016. Grounded Normativity/Place-Based Solidarity.

Curley, A. 2018. A Failed Green Future: Navajo Green Jobs and Energy “Transition” in the

American Quarterly 68: 249–255.

Navajo Nation. Geoforum 88: 57–65.

Curley, A. 2019A. T’áá hwó ají t’éego and the Moral Economy of Navajo Coal Workers.

Annals of the American Association of Geographers 109: 71–86.

Curley, A. 2019B. Unsettling Indian Water Settlements: The Little Colorado River, the San
Juan River, and Colonial Enclosures. Antipode, verfügbar unter https://doi.org/
10.1111/anti.12535, last accessed July 17, 2019.

Daigle, M. 2018. Resurging Through Kishiichiwan: The Spatial Politics of Indigenous
Water Relations. Decolonization: Indigeneity, Education, and Society 7: 159–172.
Denetdale, J. 2006. Chairmen, Presidents, and Princesses: The Navajo Nation, Gender,

and the Politics of Tradition. Wicazo Sa Review 21: 9–28.

Dennison, J. 2012. Colonial Entanglement: Constituting a Twenty-First Century Osage Nation.

Chapel Hill, NC: University of North Carolina Press.

Estes, N. 2019. Our History Is the Future: Standing Rock Versus the Dakota Access Pipeline, Und

the Long Tradition of Indigenous Resistance. New York, New York: Verso.

Gordon, D. J. 2015. An Uneasy Equilibrium: The Coordination of Climate Governance

in Federated Systems. Globale Umweltpolitik 15: 121–141.

Jepson, W. 2012. Claiming Space, Claiming Water: Contested Legal Geographies of Water
in South Texas. Annals of the Association of American Geographers 102: 614–631.

D
Ö
w
N
Ö
A
D
e
D

F
R
Ö
M
H

T
T

:
/
/

D
ich
R
e
C
T
.

ich
T
.

e
D
u
G
e
P
A
R
T
ich
C
e
–
P
D

F
/

1
9
3
5
7
1
8
1
8
4
4
1
G
e
P
_
A
_
0
0
5
1
5
P
D

B
j
G
u
e
S
T

Ö
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

Challenging Colonial Water Laws: A. Curley

(cid:129) 75

Jones, Benjamin Bahe. 2011. The Paradox of Indigenous Sovereignty and American Democ-
racy: Discourse of Exclusion in Navajo Water Rights. PhD dissertation, Northern
Arizona University.

Lambert, V. 2007. Choctaw Nation: A Story of American Indian Resurgence. Lincoln, NB:

University of Nebraska Press.

Lee, L. L. 2013. The Fundamental Laws: Codiﬁcation for Decolonization? Decolonization:

Indigeneity, Education, and Society, Bd. 2, NEIN. 2: 117–131.

Lightfoot, S. 2016. Global Indigenous Politics: A Subtle Revolution. New York, New York: Routledge.
Lister, M., and A. Curley. 2017. The Little Colorado River Watershed Chapters Association
and Kingsley Gardens: Moving the Navajo Nation Toward Land-Based Governance.
Journal of Social Justice 7. Available at http://transformativestudies.org/wp-content/
uploads/Majerle-Lister-and-Andrew-Curley.pdf, last accessed July 17, 2019.
McCool, D. 2006. Native Waters: Contemporary Indian Water Settlements and the Second

Treaty Era. Tucson, AZ: University of Arizona Press.

McGregor, D. 2012. Traditional Knowledge: Considerations for Protecting Water in

Ontario. International Indigenous Policy Journal 3: 11.

Nadasdy, P. 2007. The Gift in the Animal: The Ontology of Hunting and Human–Animal

Sociality. American Ethnologist 34: 25–43.

Nagel, J. 1997. American Indian Ethnic Renewal: Red Power and the Resurgence of Identity and

Culture. New York, New York: Oxford University Press.

Pasternak, S. 2017. Grounded Authority: The Algonquins of Barriere Lake Against the State.

Minneapolis, MN: University of Minnesota Press.

Perramond, E. P. 2018. Unsettled Waters: Rights, Law, and Identity in the American West.

Berkeley, CA: University of California Press.

Powell, D. E. 2015. The Rainbow Is Our Sovereignty: Rethinking the Politics of Energy on

the Navajo Nation. Journal of Political Ecology 22: 54.

Powell, D. E. 2017. Landscapes of Power: Politics of Energy in the Navajo Nation. Durham,

NC: Duke University Press.

Powell, D. E., and A. Curley. 2008. K’e, Hozhó, and Non-governmental Politics on the
Navajo Nation: Ontologies of Difference Manifest in Environmental Activism.
Anthropological Quarterly 81: 17–58.

Ruru, J. 2018. Listening to Papatūānuku: A Call to Reform Water Law. Journal of the Royal

Society of New Zealand 48: 215–224.

Schlosberg, D., and D. Carruthers. 2010. Indigenous Struggles, Environmental Justice,

and Community Capabilities. Globale Umweltpolitik 10: 12–35.

Sen, A. K. 2009. The Idea of Justice. Cambridge, MA: Harvard University Press.
Shreve, B. G. 2012. Red Power Rising: The National Indian Youth Council and the Origins of

Native Activism. Norman, OK: University of Oklahoma Press.

Shurts, J. 2000. Indian Reserved Water Rights: The Winters Doctrine in Its Social and Legal

Context, 1880s–1930s. Norman, OK: University of Oklahoma Press.

Simpson, A. 2014. Mohawk Interruptus: Political Life Across the Borders of Settler States.

Durham, NC: Duke University Press.

Simpson, L. B. 2016. Indigenous Resurgence and Co-resistance. Critical Ethnic Studies 2:

19–34.

Schmied, L. T. 2013. Decolonizing Methodologies: Research and Indigenous Peoples. London,

England: Zed Books.

Schmied, P. C., and R. A. Warrior. 1996. Like a Hurricane: The Indian Movement from Alcatraz

to Wounded Knee. New York, New York: New Press.

D
Ö
w
N
Ö
A
D
e
D

F
R
Ö
M
H

T
T

:
/
/

D
ich
R
e
C
T
.

ich
T
.

e
D
u
G
e
P
A
R
T
ich
C
e
–
P
D

F
/

1
9
3
5
7
1
8
1
8
4
4
1
G
e
P
_
A
_
0
0
5
1
5
P
D

B
j
G
u
e
S
T

Ö
N
0
7
S
e
P
e
M
B
e
R
2
0
2
3

76 (cid:129) “Our Winters’ Rights”

Thorson, J. E., S. Britton, and B. G. Colby. 2006. Tribal Water Rights: Essays in Contempo-

rary Law, Policy, and Economics. Tucson, AZ: University of Arizona Press.

Todd, Z. 2018. Refracting the State Through Human–Fish Relations: Fishing, Indigenous
Legal Orders and Colonialism in North/ Western Canada. Decolonization: Indigeneity,
Education, and Society 7: 60–75.

Tuck, E., and K. W. Yang. 2012. Decolonization Is Not a Metaphor. Decolonization: Indi-

geneity, Education, and Society 1 (1): 1–40.

Weatherford, G. D., and F. L. Braun. 1986. New Courses for the Colorado River: Major Issues

for the Next Century. Albuquerque, NM: University of New Mexico Press.

Wilkins, D. E., and K. T. Lomawaima. 2001. Uneven Ground: American Indian Sovereignty

and Federal Law. Norman, OK: University of Oklahoma Press.

Wilkinson, C. F. 1985. Western Water Law in Transition. University of Colorado Law Review

56 (3): 317–345.

Wilkinson, C. F. 2005. Blood Struggle: The Rise of Modern Indian Nations. New York, New York:

W. W. Norton & Unternehmen.

Wilson, N. J. 2014. Indigenous Water Governance: Insights from the Hydrosocial Rela-
tions of the Koyukon Athabascan Village of Ruby, Alaska. Geoforum 57: 1–11.
Yazzie, M. K. 2013. Unlimited Limitations: The Navajos’ Winters Rights Deemed Worth-
less in the 2012 Navajo–Hopi Little Colorado River Settlement. Wicazo Sa Review
28: 26–37.

Yazzie, M. K., and C. R. Baldy. 2018. Einführung: Indigenous Peoples and the Politics of

Water. Decolonization: Indigeity, Education, and Society 7 (1): 1–18.

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/

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