Water, Oil, and Tribal Sovereignty: 

The Fight for the Dakota Access Pipeline

Denver, Colorado

On September 27, 2016, the University of Denver Sturm College of Law hosted a panel discussion about the current legal fight over the Dakota Access Pipeline in North Dakota.  The panel addressed legal, historical, social justice, and environmental justice topics related to the dispute.  The discussion was co-sponsored by DU’s Natural Resources & Environmental Law Society, Native American Law Students Association, and the DU Water Law Review.

Professor Fred Cheever, a DU Law professor and co-director of the school’s Environmental & Natural Resources Law Program, moderated the discussion and introduced the issue. The Dakota Access Pipeline (“DAPL”) is an approximately 1,170-mile pipeline constructed to transport crude oil from North Dakota to Illinois.  The pipeline’s path is intended to span four states—North Dakota, South Dakota, Iowa, and Illinois—and cross the Missouri River at a point located a half-mile from the Standing Rock Indian reservation in North Dakota.  The DAPL route would pass through tribal lands of great cultural, religious and spiritual significance to tribes.

Professor Brad Bartlett, a visiting assistant professor in the Environmental Law Clinic at DU Law, offered a timeline of events regarding the DAPL legal conflict. In July 2016, Earthjustice, on behalf of the Standing Rock Sioux Tribe, filed a declaratory and injunctive relief complaint in U.S. District Court for the District of Columbia (Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers).  The Cheyenne River Sioux Tribe intervened and joined the lawsuit in August 2016.  In the initial complaint, the Standing Rock Sioux Tribe argued that the U.S. Army Corps of Engineers (“Corps”) violated multiple federal statutes, including the Clean Water Act, National Historic Protection Act, and National Environmental Policy Act, when it issued permits to move forward with construction of the DAPL. First, the DAPL’s route is intended to pass under the Missouri River just a half a mile upstream of the Standing Rock Sioux Tribe’s reservation boundary. A federal permit is required under the Clean Water Act for any construction project impacting federally regulated rivers —including the DAPL’s crossing of the Missouri River. In this case, the permitting process triggers requirements under the National Historic Protection Act that intend to protect areas of great cultural significance to the Standing Rock Sioux Tribe, such as sacred sites and burial grounds.  The Tribes argue that the Corps pre-authorized construction of DAPL without ensuring compliance of the National Historic Protection Act, allows the Corps to circumvent its statutory responsibility to ensure that the DAPL does not harm historically and culturally significant sites. The Tribe’s injunctive relief complaint seeks to stop the DAPL from proceeding and causing irreparable harm.

Professor Bartlett oversees DU law students in the environmental law clinic who worked in conjunction with Fredericks Peebles & Morgan LLP, a national Indian law firm, to file a complaint on behalf of the Yankton Sioux Tribe on September 8, 2016, for declaratory and injunctive relief in U.S. District Court for the District of Columbia (Yankton Sioux Tribe v. U.S. Army Corps of Engineers) to stop construction of the DAPL.  The Yankton Sioux Tribe Reservation is located in South Dakota along the Missouri River.  The complaint seeks to prevent the Corps and other federal agencies from violating the National Historic Preservation Act, the National Environmental Policy Act (“NEPA”), the Clean Water Act, the 1851 Treaty of Fort Laramie, and the Administrative Procedures Act.  Specifically, NEPA requires a federal agency to complete an environmental impact statement, including public engagement and detailed comparison of alternatives.  Additionally, the complaint requests that the Corps engage in a more meaningful consultation process with the tribal communities.  Professor Bartlett noted that neither has happened as of September.

On September 9, 2016, U.S. District Court Judge James Boasberg denied the tribes’ motions for an injunction.  Immediately following this decision, the Justice Department, the Department of the Army, and the Department of the Interior issued a joint statement moving to stop construction of the DAPL on land near the Standing Rock Indian Reservation until the Corps could revisit and reconsider previous decisions under federal laws.  The joint statement also requested that tribes and government agencies meet to evaluate the current government-to-government consultation and to determine how to better include tribes in decision-making processes concerning pipeline construction.

Professor Bartlett also noted that the tribal response to the construction of this pipeline has resulted in the largest congregation of Native Americans in the past 100 years.  Police and private security forces have responded with arrests and violence to tribes’ peaceful acts of civil disobedience. As of September 2016 a prayer camp still remains in the area with ongoing protest demonstrations.

The second panelist, Dr. Angel M. Hinzo, is a Postdoctoral Fellow in Interdisciplinary Indigenous Studies at the University of Denver Interdisciplinary Research Institute for the Study of (In)Equality (IRISE) focusing on Native American history from the mid-19th century to the present.  In the panel, Dr. Hinzo recounted how the history of U.S. governmental and tribal relations is characterized by contrasting, and often conflicting, worldviews.  She said the federal government’s extraction of natural resources embodies western values of exploitation for economic gain.  For example, proponents of the DAPL have framed the project as benefiting the public good by creating jobs during the construction phase of the pipeline and contributing to federal sales and income taxes. Tribes, on the other hand, view the same natural resources, as sentient beings to be respected and revered, not exploited. The current DAPL conflict illustrates this fundamental difference in worldview because the pipeline would transport crude oil over an area rich in cultural and natural resources.  Historically, according to Dr. Hinzo, the Corps—the oldest agency dealing with natural resources in the United States—has harmed native lands and the environment.

Additionally, Dr. Hinzo raised concerns that the construction of pipeline threatens local tribal burial sites.  In September 2016, the pipeline construction company—Dakota Access LLC—destroyed burial sites near the Standing Rock Indian Reservation to build the DAPL.  Dr. Hinzo emphasized that the Native American Graves Protection and Repatriation Act (“NAGPRA”) provides regulations to protect culturally significant sites during infrastructure projects, which the Corps and pipeline workers did not respect. Dr. Hinzo also argued that discussions around the DAPL need to better address the NAGPRA. Lastly, Dr. Hinzo noted the social costs associated with the oil-and-gas boom in North Dakota. Communities living near fossil fuel extraction have witnessed an increase in violence and sex trafficking.  Low income tribal communities living near the proposed route of the DAPL, who already experience difficulty with these issues, are increasingly at risk.

The panel’s third speaker, Mr. David Neslin, is of counsel at Davis Graham & Stubbs LLP in Denver, Colorado.  He previously managed the Colorado Oil and Gas Conservation Commission within the state’s Department of Natural Resources, which regulates all oil and gas development in Colorado.  During his career, Mr. Neslin has also represented multiple tribes in natural resource–extraction issues.

First, Mr. Neslin noted that the sole issue of the preliminary injunction action was whether the Corps violated federal laws when it issued permits allowing construction of the DAPL to move forward.  In general, preliminary injunctive relief actions seek to halt a project and maintain the status quo until the court has a chance to go through the full litigation process and resolve the issue.  Consequently, the court’s denial of the injunction in this case was a narrow decision because it did not go to trial or produce a full development of record.  Next, Mr. Neslin spoke about the importance of the administrative record to the court’s decision and how this case represents a good example of why it is vital for parties to develop and convey a cohesive narrative to the court.  While people can disagree about the substance of such records, he said that the Corps adequately documented its compliance and “checked all the boxes” needed to comply with federal regulations as to tribal consultations and environmental impacts of the DAPL.  As noted earlier, the federal government is required to provide permits under the Clean Water Act to allow the DAPL to move forward, triggering requirements under the National Historic Protection Act to ensure proper treatment of sacred sites.  Because the Corp followed and completed steps outlined in the permitting process, Judge Boasberg denied the tribes’ motions for an injunction.  Mr. Neslin argued that it was the Department of Justice’s multiple affidavits, for example, that illustrated the ways in which the Corps took the proper steps in allowing the DAPL to move forward.  The tribes, he said, could have done a better job of illustrating and citing examples to the court of the DAPL’s impacts on tribal cultural resources.  Finally, Mr. Neslin noted that the district court opinion serves as a reminder of the potency of judicial deference toward agency decision making in cases like this.  Traditionally, courts defer to agencies—such as the Environmental Protection Agency—to determine whether infrastructure projects have followed proper procedure when considering environmental and cultural impacts.  When not one overarching agency exists to ensure proper compliance, as in the case of the DAPL, multiple federal agencies follow their own processes when dealing with a discrete aspect of the overall project.  Mr. Neslin said that federal segmentation of this kind results in piecemealed environmental and cultural impact assessments, overlooking the potential for studying the impacts of the project as a whole.

The final panelist, Ms. Heather Whiteman Runs Him, is a staff attorney at the Native American Rights Fund (“NARF”) in Boulder, Colorado, where she works on tribal water and natural resource rights issues.  She provided an overview of tribal water rights and upcoming meetings between tribes and the U.S. government to evaluate current administrative consultation requirements.  Ms. Whiteman Runs Him explained that NARF’s role in the current DAPL actions is to coordinate multiple amicus briefs in support of tribes’ ongoing defense. Ms. Whiteman Runs Him explained that the foundation of tribal water rights under federal law rests on the Winters Decision, which says that the establishment of an Indian reservation includes an implied reservation of water for future use in an amount necessary to fulfill the needs of the reservation.

While Winters recognized tribal rights to water, Ms. Whiteman Runs Him noted, some tribes are working with state and federal governments to quantify their water rights and build water infrastructure in order to put their water to use.  Currently twenty-nine tribes have settled their water rights, while many more have not.  Settlement negotiations are generally expensive, lengthy, and multi-step processes that involve analyzing the land base of the reservation, hydrology, soil science, economics, etc. Ms. Whiteman Runs Him emphasized that neither the Standing Rock Sioux Tribe nor the Yankton Sioux Tribe have either quantified or settled their reservation water rights, but that does not diminish the Tribes’ rights to a reliable and safe water supply for their citizens.  These tribes have concerns about the DAPL’s affect on their water supply because the pipeline’s proposed route traverses the Missouri River, a major municipal water source to the Standing Rock Indian Reservation, directly upstream from the Standing Rock Sioux Tribe Reservation, and the point of diversion for its drinking water.

Ms. Whiteman Runs Him explained that federal agencies are required to establish policies and procedures to meet the consultation standards of the National Historic Protection Act.  Most federal agencies have established such policies; the Corps, however, has a history of failing to comply with federal standards in regard to tribal sovereignty.  Ms. Whiteman Runs Him believes that federal agencies need to “make the letter of the law match the spirit of the law” by not only requiring the Corps meet requirements of the administrative process, but also implementing requirements in a way that is meaningful to the intent of the regulations.

One major point illuminated throughout the panel discussion and the question and answer period is the adequacy of a permitting process that allowed the DAPL to move forward in the face of federal trust obligations to tribes.  As previously mentioned, the permitting process for the DAPL requires certain mitigation activities under federal regulations to ensure proper treatment of sacred sites.  While federal agencies may have completed the required steps to receive permits, the tribes argue that such steps lack substance and do not adequately and meaningfully consider tribal input.  While the permitting process may be administratively sufficient, many question whether the process actually fulfills spirit of the federal trust obligations to substantively consult and include tribal input.

Lindsey Ratcliff

Image: The Dakota Access Pipeline being installed between farms, as seen from 50th Avenue in New Salem, North Dakota. Flickr user Tony Webster, Creative Commons.


Editor’s Note: This piece is part of a six-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that examines the upcoming Ninth Circuit case, Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District and the development of the doctrine of federal reserved rights to water.

Tribal Participation in the Sustainable Groundwater Management Act

In 2014, the California Legislature passed the Sustainable Groundwater Management Act (SGMA), which implements a comprehensive framework for the regulation of groundwater in California.[1]  SGMA relies on local agency leadership to achieve “sustainable groundwater management,” defined as the management and use of groundwater without an “undesirable result,” such as unreasonable reduction of groundwater storage, degradation of quality, seawater intrusion, or land subsidence.  Under the new law, certain high- and medium-priority basins will be required to adopt sustainable groundwater management plans the end of January 2022, and to attain sustainable groundwater management by 2040.[2]  While SGMA contains several provisions pertaining to tribes, it raises many more questions than it answers about how the new regulations will affect the more than one hundred federally recognized Indian tribes that reside in California.

Much of the uncertainty about SGMA’s impact on tribes and vice versa stems from the fact that federally recognized tribes are sovereign entities that often fall outside of state regulation; tribes have a government-to-government relationship with the U.S. federal government.  This means that, with regard to their federal water rights, federal tribes can effectively ignore SGMA if they so choose, which poses potential problems for the state and local sustainability agencies, because sustainably managing an aquifer generally requires managing the total amount of water removed from the aquifer by all users.  If a local sustainability agency cannot control—or doesn’t even know—the amount of groundwater used by a tribe, it will be more difficult for that agency to manage its groundwater basin.  As a result, SGMA seeks to pull federal tribes into local considerations of groundwater management and conservation; it provides that tribes “may voluntarily agree to participate in the preparation or administration of a groundwater sustainability plan” and are “eligible to participate fully in planning, financing, and management.”[3]  Still, the Act does not—and cannot—require that federally recognized tribes participate or in fact do anything at all.

The question of whether to participate in the SGMA process raises complex issues for tribes, and since the first deadlines under SGMA have not yet passed, the tribes appear to be in a “wait and see” mode—they are waiting to see how the process takes shape and plays out before deciding whether to participate.  To date, no tribe has fully begun participating in a local SGMA process of developing a sustainability agency or groundwater plan.  In part, this is likely the result of tribes’ concerns that participating in the SGMA process—a state law to which they are not subject—will impinge on their sovereignty.  Tribes may not want to be forced to report to the state; instead, they wish to preserve their government-to-government relationship at the federal level.  For similar reasons, tribes may be hesitant to share their groundwater data and knowledge about the hydrogeology of any aquifers underlying their reservation.  Moreover, even if tribes are interested in coordinating with local agencies or the state, they may lack institutionalized mechanisms for doing so, because historically many of them have coordinated with federal, rather than state, agencies.  Collaborating with local entities under a state law may be an uncomfortable posture and new procedure for tribes.  Thus, for those tribes who may be interested in participating, establishing a formal relationship between tribes and the state that doesn’t entail the state regulating tribes will be a major challenge moving forward.

But if tribes opt not to participate in the SGMA process, what does that mean for the basins that they overlie?  It could mean future havoc for basin plans if tribes assert federally reserved water rights after the basin plans are established.  SGMA guidance documents have appropriately emphasized how to contact and invite tribes to participate, but they have not named the risks of not including tribal participants.[4]   If a tribe asserts a federally reserved water right after a basin plan has been established, it may render the basin plan ineffective by bringing the total amount of groundwater extracted from the basin above the amount required to achieve “sustainable groundwater management.”

The potential for this situation to arise is the result of the nature of the water rights that federal tribes living on reservations may be able to claim.  Under the Winters doctrine, when Congress reserves land for an Indian reservation, Congress also reserves water rights for the tribes living on the reservation.[5]  Those tribes have a right to the amount of water necessary to fulfill the purposes for which the reservation was created, which can include the amount needed to farm all the “practically irrigable acreage” on the reservation.[6]  That “reserved” water right is a federal right and thus usually paramount to rights later perfected under state law.[7]  As a result, unlike holders of state water rights, tribes with federal water rights need not follow the reasonable and beneficial use doctrines that are part of the California water law regime for both groundwater and surface water rights.  Nor do they lose the water right from non-use—federally reserved water rights are not subject to abandonment, so tribes may come forward and assert a water right at any time—including potentially after a basin plan has been established under SGMA.

The concern that tribes will disrupt existing water allocation regimes by suddenly claiming or exercising their reserved water rights is not new, however.  Historically, tribal claims of federally reserved water rights were made with respect to surface water, which presented complex issues for the appropriative rights systems employed in western states like California because they affected the priority of existing rights.  Whereas priority date under the state system is based on the date when the appropriation was initiated, federally reserved water rights have a priority date that goes back at least as far as the date on which the reservation lands were set aside.[8]  As a result, a tribe claiming a federally reserved right to surface water today could bump down in priority all the rights established after the date on which the reservation was created.

Potential Interactions Between Federally Reserved Groundwater Rights and California’s Groundwater Regime

Similar problems arise in the context of groundwater, which recent case law, including the Eastern District of California’s decision in Agua Caliente, suggests can also be the subject of federally reserved water rights.[9]  California manages state groundwater rights under a water rights system that merges three different types of water rights—overlying, or correlative rights; appropriative rights; and prescriptive rights.[10]  The California Supreme Court first recognized correlative and appropriative rights to groundwater in 1903 in the landmark case Katz v. Walkinshaw.[11]  Under this groundwater rights regime, users whose land lies above an aquifer are vested with overlying rights, which allow groundwater extraction for use on the overlying land subject only to the limitation that the amount extracted is reasonable for use on the overlying parcels compared to the demands of other overlying users.[12]  Appropriative rights are established according to a first-in-time, first-in-right system and relate to groundwater extraction for use on property that does not overlie the aquifer.  These rights are junior to overlying rights—appropriators may only use “surplus” water, or water in excess of what is required by overlying users and that will not result in aquifer overdraft.[13]  Finally, prescriptive rights can be created by the open and adverse continuous use of groundwater in an overdrafted basin for the prescriptive period, which in California is five years.  Thus appropriative rights can shed their junior status as compared to overlying rights if they become prescriptive rights through this process.  How federally reserved rights to groundwater will interact with or fit into this complex state groundwater rights system remains largely an open question.

If the tribe’s land overlies a groundwater source, it may begin pumping under the correlative rights doctrine, making a claim to the correlative right of “reasonable use” under state law.[14]  Under that state law correlative right, if there is insufficient water to meet the demands of all overlying landowners, then each must reduce their use in relation to the other overlying landowners.[15]

If, however, the tribe claimed their groundwater right was a federally reserved right, three potential scenarios could occur.  First, if the date of creation of the tribe’s groundwater right preceded perfection of all other overlying groundwater rights, the tribe’s right would probably be absolute and superior, rather than correlative, to others.[16]  Granting a tribe its entire allotment in this scenario would likely follow the California Supreme Court’s rule for coordinating state surface water appropriative and riparian rights, which provides that appropriative rights supersede subsequent riparian rights and vice versa.[17]  Riparian surface water rights, like overlying groundwater rights, are correlative.[18]  As a result, the tribe’s federally reserved right could effectively preempt the state water rights of other users, thus making sustainable groundwater management more difficult, especially in times of scarcity or if the tribe’s water right is large relative to the total amount of water available in the basin.

In a second scenario, all overlying groundwater rights could predate a tribe’s reserved right.  Under this scenario, because federal reserved rights cannot interfere with prior state water rights,[19] the tribe’s right would likely be satisfied after the overlying rights, similar to a state appropriative groundwater right.

Finally, in a third scenario, the date of the creation of the tribe’s groundwater right could fall between the dates when other overlying groundwater rights in the basin vested.  In this scenario, three potential outcomes exist for coordinating overlying users’ rights with the tribe’s reserved right to groundwater: 1) the tribe’s right might be enjoyed in its entirety, preempting all subsequent overlying users, with all overlying users (including those predating the tribe’s reserved right) sharing in shortage, which means all overlying users reduce use proportionally if there is not enough water to meet their total demand; 2) because some overlying rights precede the tribe’s reserved right, the tribe’s right might be satisfied after all overlying rights; or 3) the tribe’s right might, together with other overlying state groundwater rights holders, reduce use proportionally in times of shortage.  This scenario—where a tribal reserved right is created subsequent to some overlying groundwater rights but before some others—mimics a scenario left unresolved in California surface water law when a surface water appropriative right is both predated by and followed by separate correlative, riparian rights to the same waterbody.  According to the authors of one water law casebook, in this surface water situation, “[i]f you cannot find a solution [to this quandary], do not worry.  Neither can we.  To our knowledge, moreover, no court has ever confronted this Gordian knot in a published opinion.  This issue typically does not arise because title to most private land in California was acquired before rival appropriative water rights were perfected.”[20]  Because tribes like the Agua Caliente Band of Cahuilla Indians, located in Southern California’s Coachella Valley, may hold reserved rights to groundwater with priority dates around the time when overlying groundwater rights first vested—the Agua Caliente’s Winters right to groundwater would date to 1876—this “Gordian knot” might become more common as tribal reserved rights to groundwater are increasingly recognized.[21]

In addition, tribes sometimes pump water from an aquifer and deliver it to lands that do not overlie that aquifer.  Under California groundwater law, this situation would make them state law appropriators.  If the tribe claimed a federal reserved right to groundwater in this distant aquifer, however, their reserved right would probably function like reserved rights to surface water: the tribe’s groundwater right would be fulfilled before appropriators with priority dates after the establishment of their reservation and after appropriators with earlier priority dates.[22]  Meanwhile, a tribal reserved right to groundwater that it uses on lands that do not overlie an aquifer might be fulfilled subsequent to all overlying groundwater rights, like state appropriative rights, or in conjunction with overlying groundwater rights as described above.

These complexities highlight the importance of aboriginal rights to groundwater—tribal reserved rights with priority dates of time immemorial.  Aboriginal groundwater rights with a priority date of time immemorial would almost certainly resolve the legal headaches described above, with tribal rights trumping all state groundwater rights.  Another post in this series discusses the aboriginal rights claim in the Agua Caliente case.

Ultimately, under either the correlative rights or the Winters doctrines, a federally recognized tribe on a reservation overlying an aquifer could claim a right to the groundwater at any time, even if it has not previously been pumping.  With a claim under the state correlative rights system, this would likely pose a fairly manageable problem for groundwater managers, since the tribe’s right would be limited by what is reasonable use in relation to other overlying users.  But an absolute, non-correlative, federally reserved claim to groundwater might frustrate basin plans and the established groundwater rights regime.  This is not to say that tribes are in any way at fault for unsustainable groundwater management in California; in fact, aquifer overdraft throughout the state is largely the result of historic non-enforcement of the groundwater rights regime except through litigation and adjudication in some basins.  Rather, the intersection of tribes’ federally reserved rights to groundwater and the California groundwater regime engenders extreme legal complexities and uncertainty that may have unintended consequences for groundwater management under SGMA.

Further uncertainty for basin managers might arise from questions like: if a reservation both overlies an aquifer and is crossed by surface water, may a tribe decide which water resource to make the subject of its federally reserved right (i.e., whether to claim a federally reserved right in the surface water or the groundwater)?  Can it make a claim to some of both the surface water and the groundwater?  If a reservation overlies two different aquifers, may a tribe claim a federally reserved right in one and a correlative right in the other?  Given that courts have only somewhat recently begun to find federally reserved rights in groundwater, these and many other questions about the interaction between California’s groundwater rights system and federally reserved groundwater rights remain unresolved.  In the end, it is in the interest of state and local agencies to attempt to overcome hurdles like tribes’ concerns about sovereignty in order to coordinate with them on groundwater to ensure that SGMA can be implemented effectively while respecting tribal water rights.

Elizabeth Vissers, J.D. Candidate, Stanford Law School, expected 2017; M.S. Student, Emmett Interdisciplinary Program in Environment and Resources, Stanford School of Earth, Energy & Environmental Sciences, expected 2017

Mary Rock,  J.D. Candidate, Stanford Law School, expected 2017; M.S. Student, Emmett Interdisciplinary Program in Environment and Resources, Stanford School of Earth, Energy & Environmental Sciences, expected 2017

Philip Womble, J.D., Stanford Law School, 2016; Ph.D. Candidate, Emmett Interdisciplinary Program in Environment and Resources, Stanford School of Earth, Energy & Environmental Sciences, expected 2019

Image: Shasta Dam, California.  Wikimedia Commons user Apaliwal, Creative Commons.

[1] 2014 Cal ALS 346, 2014 Cal SB 1168, 2014 Cal Stats. ch. 346 [hereinafter “Sustainable Groundwater Management Act” or “SGMA”].

[2] Philip Womble & Richard Griffin, Two Interactions Between California’s Sustainable Groundwater Management Act and the Public Trust Doctrine, Stan. Envtl. L.J. Blog (Apr. 29, 2015, 2:40 PM PST), http://journals.law.stanford.edu/stanford-environmental-law-journal-elj/blog/two-interactions-between-californias-sustainable-groundwater-management-act-and-public-trust#sthash.yaHnd6gB.dpuf.

[3] Sustainable Groundwater Management Act, ch. 346, §10720.3(c).

[4] See Kristin Dobbin, et al., Collaborating for Success: Stakeholder Engagement for Sustainable Groundwater Management Act Implementation (July 2015), http://www.waterboards.ca.gov/water_issues/programs/gmp/docs/local_asst/sgma_stakeholderengagement_whitepaper.pdf.

[5] Winters v. United States, 207 U.S. 564 (1908).

[6] See Arizona v. California, 530 U.S. 392 (2000).

[7] SGMA recognizes this.  Section 10720.3(d) provides that “federally reserved water rights to groundwater shall be respected in full.  In case of conflict between federal and state law in that adjudication or management, federal law shall prevail.”

[8] Winters v. United States, 207 U.S. 564 (1908); see United States v. Winans, 198 U.S. 371 (1905) (possibly supporting the notion that federally reserved rights could go back as far as time immemorial).

[9]  Cappaert v. United States, 426 U.S. 128 (1976); Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., No. EDCV 13-883-JGB, 2015 U.S. Dist. LEXIS 49998 (C.D. Cal. Mar. 20, 2015); see also Stephen V. Quesenberry et al., Tribal Strategies for Protecting And  Preserving Groundwater, 41 Wm. Mitchell L. Rev. 431, 453 & n.97 (2015) (commenting that “many . . . state and federal courts have found reserved rights in groundwater” and listing cases).

[10] Womble & Griffin, supra note 2.

[11] 141 Cal. 116 (1903).

[12] Womble & Griffin, supra note 2.

[13] Id.

[14] Wright v. Goleta Water District, 174 Cal. App. 3d 74 (relegating an unexercised right and making the newest pumper subordinate to others is inappropriate).  Tribes would be considered the same as any other overlying user, and could thus make a claim under state law to the amount of water that is reasonable compared to the demands of other overlying users.

[15] While this has historically not been enforced, the implementation of SGMA will hopefully ensure that it is enforced in the future.

[16] Quesenberry et al., supra note 9, at 456. See also Judith Royster, Winters in the East: Tribal Reserved Rights to Water in Riparian States, 25 Wm. & Mary Envtl. L. & Pol’y Rev. 169, 182 (2000) (stating that “[t]ribal [reserved] water rights are, therefore, paramount over subsequent state-law water rights.”).

[17] Haight v. Costanich, 184 Cal. 426 (1920).

[18] Pleasant Valley Canal Co. v. Borror, 72 Cal. Rptr. 2d 1 (Cal. App. 5th Dist. 1998).

[19] Royster, supra note 16, at 182.

[20] Barton H. Thompson et al., Legal Control of Water Resources 209 (5th ed. 2013).

[21] Like riparian surface water rights, overlying rights to groundwater would vest when a current landowner’s predecessor in interest originally received a land patent from the U.S. government. Many of these rights would date to the mid-19th century.  See Lux v. Haggin, 10 P.674, 725 (Cal. 1886).  Any reserved groundwater rights held by California Indian Rancherias that were created in 20th century would be accordingly be junior to most, if not all, overlying groundwater rights in this scenario.

[22] Royster, supra note 16, at 182.