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.

Introduction

Many in the United States take water for granted.  It is a commodity that typically comes out of a faucet clean and at a low cost.  However, not everyone in the United States has this amenity.  In rural areas, residents commonly rely on wells drawing out water that is not pure for consumption.  Many Native Americans, residing in their sovereign nations within the United States, lack access to clean water for drinking, bathing, cooking, and other every day uses.  There is a question of how these Native Americans can ensure their water is of the quality other United States citizens take for granted.

It seems that only drastic events make water a discussion at the dinner table; events like the Gold King Mine spill, where three million gallons of metal-polluted water spilled forth from an abandoned mine turning the picturesque clear water of the Animas River yellow-orange.[1]  Both the Southern Ute Tribe and the Navajo Nation are directly downstream of the polluted Animas River in southern Colorado and across the border in New Mexico.  The Animas is a tributary of the San Juan River, which flows through over 200 miles of the Navajo Nation.[2]  These tribes rely on the river to grow food, for drinking water, and for their modern municipal and industrial needs.  How are Native American tribes to ensure the reserved water they have a right to use is of the quality they expect and need to sustain themselves?  This blog discusses the notion that some inherent right to quality may arise from the Winters doctrine.  It also considers other means for federally recognized tribes to ensure their water is of a useable quality.

Water Quality in Winters Doctrine

Under Winters, the United States Supreme Court held that Congress set aside land for the Native American tribes to live on, and, along with the land, Congress impliedly reserved water.[3]  Congress’ implied reservation of water for the land, and any other reserved federal land, was based on the amount of water necessary to fulfill the reservation’s need when it was established.[4]  Presently, courts acknowledge both reserved Native American water for growing crops[5] and water for traditional tribal uses, such as hunting and fishing.[6]

Some legal scholars believe that Winters may apply to the quality of water as well.[7]  In the Winters opinion, Justice McKenna wrote, “in furthering and advancing the civilization and improvement of the Indians. . . it is essential and necessary that all of the waters of the river flow down the channel uninterruptedly and undiminished in quantity and undeteriorated in quality,”[8] allowing for the tribes to argue an inherent right to both water quantity and water quality.

The Hopi Tribe in northeastern Arizona recently made an argument for their right to water quality. [9]  The United States Court of Appeals for the Federal Circuit (“Court”) heard the case.[10]  In Hopi Tribe the Court held that the United States did not have a fiduciary duty, under Winters, to ensure the quality of Native Americans’ water supply.[11]  The Hopi Tribe brought the action seeking monetary relief because of high arsenic concentrations in their water supplies.[12]  Arsenic is a naturally occurring contaminant found in rock and soils.[13]  The Hopi Tribe wanted funds to improve their infrastructure and ability to provide clean water to the reservation.[14]  The Hopi Tribe argued that the United States had an affirmative duty to ensure water quality on the reservation.[15]  They argued this duty existed based on the Winters doctrine and the Act of 1958,[16] holding in trust Hopi lands as described in 1882.[17]

The Court denied the Hopi Tribe’s argument for two reasons.  First, the Hopi Tribe’s argument that the United States had a fiduciary duty to act did not persuade the Court.[18]  No language in the Act of 1958, or the Executive Order of 1882, gave weight to this argument.[19]  Second, the Court took issue with why the contaminant was in the water.[20]  The Hopi Tribe could not drink their water because of arsenic contamination, but this contamination is natural.[21]  Natural erosion, as opposed to third-party actions, resulted in the unsafe amount of arsenic in the reservation water.[22]  The Court acknowledged that in a situation where an upstream user affects the water quality, the United States might have a duty to act.[23]  The Court held, however, that the United States had no fiduciary responsibility to improve the water quality when the contamination occurred naturally.[24]

The Court did not find a connection between water quality and Winters doctrine in Hopi Tribe, but nevertheless there is still an argument for an inferred connection between the Winters doctrine and water quality standards.  The Court’s decision in Hopi Tribe left room for Native Americans to argue for a right to water quality under Winters.  The Court’s dicta in Hopi Tribe seems to assert that the United States does have a duty to act when a third-party diminishes the water quality, as opposed to harmful, naturally occurring minerals.  The United States District Court for the District of Arizona (“District Court”) found such a duty in United States v. Gila Valley Irrigation District.[25]  The District Court identified two reasons why the Apache Tribe’s water was tainted.[26]  First, upstream irrigators diverted the entire flow of the stream.[27]  When the irrigators returned the water to the stream it carried with it salts from the irrigated lands.[28]  Second, upstream water users pumped groundwater in excess, particularly when flows in the Gila River were low.[29]  Groundwater has higher salinity than surface water, so the water coming back into the Gila River at low flow had a higher salinity than what naturally occurs.[30]  The upstream users, through these two acts, raised water salinity to an unusable level for the Apache Tribe’s salt-sensitive crops.  On appeal, the Ninth Circuit affirmed the District Court’s decision that 1) the landowners’ diverted water was strictly for agricultural irrigation use; 2) the district court’s interpretation of the Globe Equity consent decree of June 29, 1935, Article VIII in all of its parts; and 3) that the “lower valley diverters in Gila Crossing District were not entitled to priority call as against upstream diverters.”[31]

The Gila Valley case contrasts the Hopi Tribe case.  When interpreted together, it is likely that upstream users are liable for the polluted water that a tribe uses downstream.  Further, the United States has a duty to ensure water quality only when it has a fiduciary duty to the tribe.  However, when natural causes lead to water pollution, the United States has no duty to provide the tribe with clean water, even when a fiduciary duty exists.

Another Means of Ensuring Clean Water

To be sure, no federal court has stated a clear rule regarding an implied right to water quality under Winters.  However, Native American tribes have other means of ensuring their water is of the quality necessary for agricultural and other purposes.  The Clean Water Act allows for the Environmental Protection Agency to treat tribes as states.[32]  A Native American tribe, to be treated as a state, has to show that it has a governing body with governmental powers, that it will perform functions related “to the management and protection of water resources,” and that the tribe is capable of such authority.[33]  The tribes that qualify gain the benefit of receiving assistance from the United States to restore water quality where contaminated.[34]

Once the United States recognizes the Native American tribe as a state under the Clean Water Act, the tribe is able to set its own standards on water quality.[35]  The tribe’s water quality standards must be reasonable and enforceable against upstream water users.[36]  This power gives federally recognized Native American tribes the ability to set their own enforceable water quality standards, and provides the federal government with assistance in ensuring water quality improvements in the United States.[37]

There are several barriers that prevent tribes from taking advantage of this statute.  One barrier is acquiring the necessary capital to sustain a governing body that can handle the responsibilities that come with governmental powers.  Further, tribes bring projects under this statute that are likely costly, even with federal assistance.  The statute imposts an additional barrier in that only federally recognized tribes may exercise governmental authority over water quality.  State governments and the Federal government do not always recognize the same tribes.[38]  Therefore, while tribes may seek federal assistance to ensure water quality on their reservations, state-imposed hurdles prevent many tribes from being able to request that assistance.

Conclusion

Despite what some legal scholars believed as far back as twenty years ago, the courts have yet to decide a case that addresses whether Winters applies to a right to water quality.[39]  Professor Judith Royster has suggested that if the courts find Native American tribes have a right to water quality it will likely be closely tied to the quantity of water.[40]  While Winters remains open regarding water quality, there are other avenues for federally recognized tribes to ensure their water is of a necessary quality under the Clean Water Act.  Those means, however, are not without obstacles.[41]

W. James Tilton, J.D., University of Denver School of Law, 2016

Image: Coahuilla Indian well at Martinez, Palm Springs, ca.1903.  Flickr user Ashley Van Haeften, Creative Commons.

[1]  Gold King Mine Could have Been Prevented, (Nov. 15, 2015), http://indiancountrytodaymedianetwork.com/2015/ 11/15/gold-king-mine-could-have-been-prevented-162427.

[2]  Id.

[3]  Winters v. U.S., 207 U.S. 564, 576–77 (1907).

[4]  U.S. v. New Mexico, 438 U.S. 696, 701 (1978).

[5]  Winters, 207 U.S. 564, at 569–70, 576.

[6]  U.S. v. Adair, 723 F.2d 1394, 1408–09 (9th. Cir. 1983).

[7]  See generally Cynthia Brougher, Indian Reserved Water Rights Under the Winters Doctrine: An Overview, Congressional Research Service (2011), http://nationalaglawcenter.org/wp-content/uploads/assets/crs/ RL32198.pdf; Judith V. Royster, Water Quality and the Winters Doctrine, 107 Water Resources Update 50 (1997), http://opensiuc.lib.siu.edu/jcwre/vol107 /iss1/10/; Mark E. Chandler, A Link Between Water Quality and Water Rights: Native American Control Over Water Quality, 30 Tulsa L. J. 105, 112 (1994) http://digitalcommons.law.utulsa.edu/tlr/vol30/iss1/3.

[8]  Winters, 207 U.S. 564 at 567.

[9]   Hopi Tribe v. U.S., 782 F.3d 662 (Fed. Cir. 2015).

[10]  Id.

[11]  Id. at 668–69.

[12]  Id. at 665.

[13]  Id.

[14]  Id. at 665–66.

[15]  Id. at 669.

[16]  An Act to Direct the Secretary of the Army to Convey Certain Property Located at Boston Neck, Narragansett, Washington County, R.I., to the State of Rhode Island, Pub. L. No. 85-548, 72 Stat. 403 (1958), https://www.gpo.gov/fdsys/granule/STATUTE-72/STATUTE-72-Pg403-2/content-detail.html.

[17]  Executive Order for Moqui (Hopi) Reservation, (Dec. 16, 1882), Indian Affairs: Laws and Treaties. Vol. I, Laws (Compiled to December 1, 1902), 805, Compiled and edited by Charles J. Kappler. Washington: Government Printing Office, 1904, http://digital.library.okstate.edu /kappler/vol1/html_files/ARI0801.html.

[18]  Hopi Tribe, 782 F.3d at 668–69.

[19]  Id. at 669.

[20]  Id.

[21]  Id.

[22]  Id. at 665–66.

[23]  Id. at 669.

[24]  Id.

[25]  920 F.Supp 1444 (D. Ariz. 1996).

[26]  Id. at 1450.

[27]  Id. at 1451.

[28]  Id.

[29]  Id. at 1450.

[30]  Id.

[31]  Id.; see also United States v. Gila Valley Irrigation Dist., 117 F.3d 425, 426 (9th. Cir. 1997) (affirming the United States district court’s reasoning and findings).

[32]  33 U.S.C.A. § 1377 (June 2014).

[33]  Id. at (e).

[34]  See §§ 1377 and 1251(g).

[35]  Mark E. Chandler, A Link Between Water Quality and Water Rights: Native American Control Over Water Quality, 30 Tulsa L. J. 105, 112 (1994), http://digitalcommons.law.utulsa.edu/tlr/vol30/iss1/3.

[36]  Id. at 118.

[37]  See 33 U.S.C.A. § 1383(c).

[38]  See Federal and State Recognized Tribes, National Conference of State Legislatures, (2016) http://www.ncsl.org/research/state-tribal-institute/list-of-federal-and-state-recognized-tribes.aspx.

[39]  Chandler, supra note 35.

[40]  Judith V. Royster, Water Quality and the Winters Doctrine, 107 Water Resources Update 50 (1997), http://opensiuc.lib.siu.edu/jcwre/vol107 /iss1/10/.

[41]  Id.


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.

Agua Caliente raises pressing issues at the intersection of Federal Indian law and water law that have yet to be conclusively resolved by the U.S. Supreme Court. Among these issues are whether federal reserved water rights apply to groundwater and the scope and circumstances under which aboriginal water rights, with a priority date of time immemorial, may be claimed. This piece explores in depth the Agua Caliente’s claim to aboriginal rights to groundwater, and how the district court ruled on this claim in its March 20, 2015 ruling on summary judgment.

Background on Federal Indian Water Rights

Although the law of Indian water rights remains in flux, water rights potentially available to federally recognized tribes fall into two categories: 1) federal reserved, or Winters, water rights and 2) aboriginal, or Winans, water rights. Both types are at issue in Agua Caliente, and while this post primarily discusses the Agua Caliente Band’s aboriginal water rights claim, an overview of both types of rights provides useful background.

First, tribes may be entitled to federal reserved water rights. The U.S. Supreme Court first recognized reserved water rights in Winters v. United States, 207 U.S. 564 (1908), which concerned the Fort Belknap Indian reservation in Montana. The Milk River flows through the Fort Belknap reservation, and, at the time of the case, a number of non-Indian Montanans had obtained state appropriative rights to the river’s water. The federal government sought to restrain these state-sanctioned users from diverting water upstream of the reservation, and the question arose whether the Indian reservation possessed water rights through which it could restrain other appropriators. In response to this question, the Court held the reservation did possess water rights because, in setting aside the Fort Belknap Indian reservation, the federal government reserved water sufficient to fulfill the purpose of the reservation. In other words, if by treaty the United States reserved land to provide a tribal agricultural homeland, the resulting Indian reservation and its occupants would possess federal reserved water rights to the quantity of water necessary to fulfill that agricultural purpose. Later courts, such as Arizona v. California, 373 U.S. 546 (1963), clarified that these rights apply to waters appurtenant to the reservation and have a priority date commensurate to the date of the treaty or other federal action reserving the lands.

In addition to reserved water rights, tribes have invoked aboriginal water rights carrying a priority date of time immemorial. The key Supreme Court case supporting such rights is United States v. Winans, 198 U.S. 371 (1905). While Winans was not a water rights case, it contains a principle of Indian law applicable to water rights, namely that treaties and other federal actions are not a grant of rights to the Indians, but rather a grant of rights from them. Thus, according to Winans, tribes retain rights that they did not explicitly cede in a treaty or other agreement. In the case of Winans, these retained rights included hunting and fishing.

The central case recognizing the Winans principle with respect to water rights is United States v. Adair, 723 F.2d 1394 (9th Cir. 1983). There, the Ninth Circuit held the Klamath Tribe of Oregon possessed aboriginal title to certain lands, hunting, and fishing rights, and “by the same reasoning, an aboriginal right to the water used by the Tribe as it flowed through its homeland.” Id. at 1413. While the Klamath Tribe ceded title to most of its ancestral lands by treaty, the Tribe retained exclusive use and occupancy rights. Relying on Winans, the Adair court found that there was “no indication in the treaty, express or implied, that the Tribe intended to cede any of its interest in those lands it reserved for itself.” Id. at 1414. Thus, the court held, the Tribe possessed a continuing water right on the Klamath Reservation to support its hunting and fishing lifestyle. This right, the court explained, carried a priority date of “time immemorial.” Id.

Reserved and Aboriginal Rights in Agua Caliente

The Agua Caliente Band of Cahuilla Indians (“Agua Caliente” or “Tribe”) is a federally recognized tribe with a reservation in southern California’s Coachella Valley. The Tribe has used and occupied the land constituting and surrounding their current reservation for generations. The Tribe’s ancestral homeland in the Coachella Valley forms part of the Sonoran desert, where water is scarce, particularly in California’s current drought. In 2013, the Agua Caliente sued the Coachella Valley Water District and the Desert Water Agency seeking, among other requests, a declaration that the Tribe possesses both federal reserved and aboriginal rights to the Valley’s groundwater. This lawsuit began in the United States District Court for the Eastern District of California.

The parties to the suit agreed to break the action into three phases. Phase I, which was decided in March 2015, addressed two primary legal questions: (1) whether the Agua Caliente held federal reserved rights to groundwater under the Winters doctrine, and (2) whether the Tribe held aboriginal rights to groundwater. The court held the Tribe’s federal reserved water right included a right to groundwater. The court found the reservation’s purpose was to provide a tribal homeland, and thus the Tribe possessed a federal reserved water right sufficient to fulfill that purpose. The court reasoned that this right extended to the groundwater beneath the Tribe’s land as an appurtenant source of water. See Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, Case No. EDCV 13-883-JGB, 2015 WL 1600065 (E.D. Cal., Mar. 20, 2015) at 7-10 (hereinafter “Agua Caliente”). Because the extension of the Winters doctrine to groundwater has not been settled by the U.S. Supreme Court, this constitutes a major victory for the Tribe.

The Eastern District, however, denied the Tribe’s aboriginal rights claim. This section recounts the parties’ arguments in this case.

i. The Parties’ Arguments

The aboriginal rights arguments in Agua Caliente centered on federal statutes enacted in the wake of California joining the United States. In 1848, Mexico ceded land that would become the State of California to the United States in the Treaty of Guadalupe Hidalgo. Shortly thereafter, in 1850, California was admitted to the Union and became a state. And just one year later, the U.S. Congress passed the Act of 1851, which sought to protect the property rights of former Mexican citizens and to settle land claims in California. The Act required those claiming property rights to file their claims within two years.

Coachella argued that the 1851 Act required all claims to land to be submitted, and that the Agua Caliente’s failure to submit a claim within the two-year period set forth in the Act meant that any claims to the land were extinguished in 1853. Likewise, Coachella argued that the record lacked sufficient factual support for Agua Caliente’s aboriginal groundwater rights claim. In particular, Coachella emphasized the lack of evidence that Agua Caliente reservations had any wells in use, but rather that they only used surface water.

Agua Caliente countered that the 1851 Act did not extinguish their aboriginal rights. Agua Caliente did not dispute that they failed to file a claim in the two-year window of the Act. Instead, they argued that the Act, which on its terms pertained to “each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government,” Plaintiff’s Brief at 20 (citing An Act to Ascertain and Settle the Private Land Claims in the State of California, 9 Stat. 631 (March 3, 1851)), did not apply to them because their claim to land did not stem from the Spanish or Mexican government. Rather, they claimed aboriginal rights based on use and occupation since time immemorial, and did not rely upon title derived from the Spanish or Mexican government. To buttress this argument, Agua Caliente also pointed to an 1853 Act passed by the U.S. Congress to transfer California lands in which the United States retained a proprietary interest to the United States. Because this 1853 Act included an exception for “land in the occupation or possession of any Indian tribe,” the Tribe argued that this provision explicitly recognized as valid the kind of aboriginal title that they asserted. In making this argument, Agua Caliente also attempted to distinguish a series of U.S. Supreme Court cases finding aboriginal rights to be extinguished by the Act of 1851. It did so on the ground that those U.S. Supreme Court cases addressed “Indian land rights that fell within the purview of the 1851 Act,” but that Agua Caliente’s land rights did not fall within the purview of the 1851 Act.

Likewise, because an 1850 law passed by the U.S. Congress created a treaty commission for the purpose of clearing aboriginal title claims of non-missionized Indians, Agua Caliente argued that they did not fall within the scope of the Act of 1851. The Act of 1851, their argument went, did not apply to Indians outside the zone of missionization because the 1850 Act covered their claims. Agua Caliente also noted that they had negotiated a treaty with the United States in 1852 that set aside a reservation, but that they were not notified of the U.S. Senate’s failure to ratify the treaty for some time.

Finally, Agua Caliente argued that even if their aboriginal land rights had been extinguished by the 1851 Act, they subsequently reestablished title by continuing their exclusive use and occupancy of the land and water on their ancestral lands.

ii. The Court’s Ruling

The court’s ruling on summary judgment granted the Agua Caliente federal reserved rights to groundwater, but denied the claim for aboriginal groundwater rights. It rejected both of Agua Caliente’s aboriginal rights arguments, finding that the Tribe’s failure to file a claim in accordance with the Act of 1851 extinguished any aboriginal water rights. Moreover, the court held that even if the 1851 Act did not extinguish these aboriginal rights, the establishment of a reservation in 1876 “effectively re-extinguished that right.” Agua Caliente at 13.

Although the court did not explicitly address Coachella’s argument that no factual support demonstrated groundwater use in the relevant time period, the court did note that aboriginal rights to groundwater are not founded upon use of groundwater itself, but rather derive from a right to occupancy. See Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, Case No. EDCV 13-883-JGB, 2015 WL 1600065 (E.D. Cal., Mar. 20, 2015) at 13 fn. 12 (“[N]o such freestanding aboriginal rights exists, all derive from a right to occupancy.”). Accordingly, proof of actual groundwater use was not necessary.

The court’s decision to deny aboriginal rights to Agua Caliente relies fairly heavily on U.S. Supreme Court precedent regarding the Act of 1851. Although the argument that an aboriginal right does not stem from Spanish or Mexican authority and that property rights not stemming from Spanish or Mexican authority are not covered by this Act appears persuasive on its face, past U.S. Supreme Court decisions have interpreted the Act of 1851 as requiring tribes claiming aboriginal land rights to have filed a claim pursuant to the Act to preserve their occupancy rights. The main case finding otherwise, Cramer v. United States, 261 U.S. 219 (1923), upon which Agua Caliente relied heavily, contains some language favorable for the Tribe. See, e.g., id. at 231 (“The Indians here concerned . . . and their claims were in no way derived from the Spanish or Mexican governments.”). Nevertheless, while the U.S. Supreme Court has not affirmatively stated that all aboriginal land claims in California fall within the ambit of the Act of 1851, the Ninth Circuit in U.S. ex rel Chunie v. Ringrose, 788 F.2d 638 (9th Cir. 1986), effectively interpreted the line of U.S. Supreme cases as doing just that. The Chunie court distinguished Cramer on the ground that the tribe in that case did not occupy the land in question at the time of the Act of 1851. Interestingly, the Eastern District did not address Agua Caliente’s argument about the 1850 treaty commission, so the court’s exact perception of that argument remains unclear. Nevertheless, the Eastern District did not find it persuasive enough to rule in the Tribe’s favor on the aboriginal water rights claim.

The Eastern District’s assertion that the creation of a reservation for the Tribe in 1876 reservation extinguished aboriginal rights, however, appears inconsistent with prior case law on aboriginal water rights. As put forward in Winans, reservations are not a reservation of rights to tribes, but rather a reservation of rights from them—a reservation of those not granted. Accordingly, the Ninth Circuit in Adair, 723 F. 2d at 1414, noted, concerning the aboriginal water rights it found to exist for the Klamath Tribe, “[t]he rights were not created by the 1864 Treaty, rather, the treaty confirmed the continued existence of these rights.” The Eastern District here, citing Hagen v. Utah, 510 U.S. 399, 412 (1994) instead explained that reservation means “the United States withdraws land which it then ‘set[s] apart for public uses.’” The Eastern District used this statement to support the assertion that “an aboriginal right of occupancy is fundamentally incompatible with federal ownership.”  Agua Caliente at 13. This assertion, of unclear origin or legal underpinning, contradicts Adair, which recognized a continued aboriginal right of occupancy on a federal reservation. Adair, 723 F. 2d at 1414.

Conclusion

First, in our estimation, the Eastern District should have refrained from foraying into the counterfactual that the Tribe might have reclaimed its aboriginal title between the Act of 1851 and the 1876 establishment of its reservation. Alternatively, just as the Ninth Circuit did in Adair, the court could have conducted a robust interpretation of the executive order that established the reservation in 1876 to determine whether or not it reserved any remaining aboriginal rights. We feel that it is a legal error to conclude that a reservation automatically extinguishes any aboriginal rights that may exist without even examining the text of the order establishing the reservation. However, because the Tribe has elected not to appeal the aboriginal rights portion of this ruling, the order and its flawed reasoning will remain on the books.

Case law surrounding the presence of aboriginal water rights remains murky. Although Agua Caliente ultimately prevailed on their reserved water rights claim in this case, recognition of aboriginal rights can be crucial to tribes, primarily when 1) a federal reserved rights claim is not available; or 2) the priority date guaranteed by a reserved right is not early enough to preserve a tribe’s access to water. Given the lack of clarity in aboriginal water rights, erroneous decisions in this arena are not surprising. Appellate courts should work to make the law here more clear when the opportunity to do so arises to provide better guidance to lower courts attempting to make sense of the confusing state of the doctrine.

Although this piece has focused on the legal underpinnings of aboriginal rights, it is worth acknowledging that, from the perspective of basic fairness, these legal underpinnings are themselves seriously flawed. During this time period, eighteen tribes in California negotiated treaties with the United States that were never ratified. No one bothered to notify the tribes of this fact. Combined with the Act of 1851, these actions left many California tribes homeless. On top of this, these tribes had to endure state-sanctioned attempts to get rid of the Indian population. There are some tools within the law, such as aboriginal water rights, that can be used to advance tribal interests, but that does not change this country’s history of using the law itself to subjugate the people who have lived here the longest, a history that is still present in certain strains of modern legal doctrine.

Richard Griffin and Claudia Antonacci, JD Candidates, Stanford Law School, Class of 2017

Image: Warner’s hotsprings and the village of Aqua Caliente, California ca. 1900.  Flickr user Ashley Van Haeften, Creative Commons.

SOURCES:

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

Arizona v. California, 373 U.S. 546 (1963).

United States v. Winans 198 U.S. 371 (1905).

United States v. Adair, 723 F.2d 1394 (9th Cir. 1983).

Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, Case No. EDCV 13-883-JGB, 2015 WL 1600065 (E.D. Cal., Mar. 20, 2015).

An Act to Ascertain and Settle the Private Land Claims in the State of California, 9 Stat. 631 (March 3, 1851).

U.S. ex rel Chunie v. Ringrose, 788 F.2d 638 (9th Cir. 1986).

Agua Caliente Memorandum of Points and Authorities in Support of Motion for Summary Judgment on Phase I Issues.

Coachella Valley Water District Memorandum of Points and Authorities in Support of Motion for Summary Judgment or in the Alternative, for Partial Summary Judgment.

United States Bureau of Indian Affairs, Who We Are, http://www.bia.gov/WhoWeAre/RegionalOffices/Pacific/WeAre/.


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.