Tribal Waters and The Supreme Court

by Mark Harvey

After we get back to our country, black clouds will rise and there will be plenty of rain. Corn will grow in abundance and everything [will] look happy. –Barboncito, Navajo Leader, 1868

Barboncito, Navajo Leader, circa 1868

My idea of a fun evening is listening to the oral arguments of a contentious dispute that has reached the Supreme Court. As much as I disagree with some of the justices, I must admit that almost all of them are wickedly sharp at analyzing the issues—the facts and the law—of every case that comes before them. I don’t always get how they arrive at their final votes on cases that seem cut and dried before their probing inquiry. But most of them can flay a poorly presented argument with all the efficiency of a seasoned hunter field-dressing a kill.

So it was with the recent hearing on Arizona v. The Navajo Nation, heard before the court this year on March 20. At stake, in this case, is what responsibility the US government does or doesn’t have in formally assessing the Navajo Nation’s need for water and then developing a plan to meet those needs. The brief on behalf of the Navajo people, Diné as they prefer to be called, puts the case in stark and unmistakable terms: “This case is about this promise of water to this tribe under these treaties, signed after these particular negotiations reflecting this tribe’s understanding. A promise is a promise.”

The promise referred to in the brief refers to a promise made about 150 years ago when the Diné signed a treaty in 1868 with the US Government to establish the Navajo Reservation as a “permanent home” where it sits today. The treaty is only seven pages long and it promises the Diné a permanent home in exchange for giving up their nomadic life, staying within the reservation boundaries, and allowing whites to build railways and forts throughout the reservation as they see fit. A lot of things were left out—like water rights. Read more »

Value, Merit and Desert

by Christopher Horner

Its only when the tide goes out that you learn who has been swimming nakedWarren Buffett

Buffett’s famous remark has usually been applied to the shock of the 2008 financial crisis: the over-leveraged, the under-financed, the chancers and the over-exposed in general were embarrassed when the tide went out and left them shivering on the seashore. But we can apply that image to our present troubles. The tide that has been COVID-19 has exposed those very highly paid professions that do not count as essential, by most people’s standards. How many hedge fund managers, for example, do we need out there, working for us right now? We seem to be getting on just fine without them. Contrast a ‘job’ like that with the much lower paid nurses, care home workers, security guards, service and delivery personnel of all kinds who face the real prospect of illness and even death, often in contexts in which there is insufficient personal protection equipment and where social distancing isn’t observed, either because it would be impracticable, or because their employer doesn’t care enough to ensure it it happens. And beyond what we are learning to stop calling ‘unskilled’ and are now calling ‘key’ workers are a larger group that either keep society going or who help make it something we would want to keep going. Crudely put, we need bricks and mortar but we also want art, entertainment and education. 

Marx’s distinction between use value and exchange value is helpful here. The former, for my purposes, is the rough and ready criterion of adding personal and social value – the things we need and want. The latter is the production of commodities or services to be exchanged for money, with the aim of making a profit. In a capitalist system like ours, the two sides of value are always in an uneasy relationship, to say the least – commodities need to be of some use to the buyer and must produce profit. However, in our current crisis they have split asunder. Not completely, of course: this pandemic is almost perfect for online companies like Amazon, whose profits will surely rocket beyond the already stratospheric up into outer space. But there is now a stark distinction staring us in the face between the two kinds of value and the people who create it. Read more »