Just midway through its first full semester of operation, Minnesota Law’s new Civil Rights Appellate Clinic filed its second amicus brief to the U.S. Supreme Court.

The clinic’s newest brief was submitted in the consolidated cases of Arizona v. Navajo Nation (No. 21-1484) and Dep't of Interior v. Navajo Nation (No. 22-51), which present a major water rights issue with significant implications for both the Navajo Nation and federal Indian Law.

The brief was filed on behalf of two water access and relief organizations, the DigDeep Right to Water Project and the Utah Tribal Relief Foundation, in collaboration with four other subject matter experts (Heather Tanana, Elisabeth Parker, Clifford B. Parkinson, and Frannie Monasterio). The amici contend that the United States has a trust obligation to ensure that the Navajo Nation has access to clean water, necessary for residents “to live on their permanent homeland with dignity and prosperity,” as the United States promised in its 1849 and 1868 treaties with the Navajo Nation.

Professor Elizabeth G. Bentley directs the clinic and is supervising the six students in this inaugural class. She said she became interested in the Navajo case when she learned about the pervasiveness of water insecurity in the Navajo Nation. At least 30 percent of its residents have no running water in their homes, and the water that is available to them is often heavily contaminated and must be hauled from great distances before being carefully rationed. According to the amici, some Navajo residents survive on as few as two to three gallons of water per day, as compared to 88 gallons per day for the average American.

After the Navajo Nation sued the United States to allege a breach of its trust duty, Arizona, Colorado and Nevada, as well as other local government entities, intervened to assert their interest in the water supply. When the U.S. Court of Appeals for the Ninth Circuit ruled in favor of the Navajo Nation, the federal and state parties successfully petitioned the U.S. Supreme Court for review.

Case-Selection Process                                  

In determining whether the case was a good fit for the clinic, Bentley says she first asked whether it aligned with the clinic’s mission statement: “Through the clinic’s seminar and casework, students will develop appellate advocacy skills while working to ensure that every individual has the opportunity to live as their fullest self with dignity and respect. Our cases will harness the impact of the appellate courts in an effort to protect and expand individual rights and to make our systems of government more fair and just.”

Bentley then focused on the student experience. “When we take on a case, we want to make sure that our students can draft all or portions of the brief, do important research, and actively participate in the case by having meaningful interactions with our clients, co-counsel, and community partners,” she said. Because the clinic is a one-semester class, Bentley also seeks to identify cases in which the bulk of the research and writing can be completed in a single semester.

Bentley typically assigns two or three students to each case to help them learn how to work collaboratively. She also strives to balance their experiences; if a student’s first assignment is an amicus brief, she might seek to balance that with a second project that involves direct representation.

Student Perspective

The students who worked on the DigDeep and Utah Tribal Relief Foundation amicus brief, 2Ls E. Isabel Park and Ciara McManus, interviewed the clients to collect stories about how water insecurity affects Navajo residents’ daily lives, helped draft portions of the brief, and edited and refined the brief to ensure it was Supreme Court quality. To round out their clinic experience, Bentley said she will assign both students to a different aspect of appellate brief writing with their next project.

“Working on the amicus brief was a great way to see how appellate litigation works in practice and to further develop my writing and research skills,” Park said. “It deepened my interest in this area of the law, and I'm grateful to Professor Bentley, who’s extremely knowledgeable and helpful, for this unique opportunity.”

McManus added, “It has been a fulfilling experience to have a tangible impact on the lives of those in the United States without access to clean water. Through the Civil Rights Appellate Clinic, I have had the opportunity to work alongside inspiring individuals and organizations committed to promoting justice and equality.”

Several students enrolled in the clinic, including McManus and Park, traveled to Washington, D.C. to see the case argued before the U.S. Supreme Court.  In a thrilling moment for the students, counsel for the Navajo Nation referenced the clinic's amicus brief by name during the arguments in a colloquy with Justice Alito about the amount of water used on the Navajo Nation as compared to surrounding states..

The audio of the oral arguments for can be accessed here.

Chuck Williams is a freelance writer based in South Bend, Indiana.