Tribal Water Law: Cutting Edge Insights from Practitioners in Indian Country

Las Vegas, Nevada                  October 12-13, 2017

Conference Sponsor: CLE International

Ethical Considerations: Water as a Human Right

 

Presented by: Heather White Man Runs Him, Esq., Native American Rights Fund.

Dressed in the business attire of many varied cultures, a group of western tribal leaders, attorneys, and government officials came together to discuss tribal access to clean water. An examination through the lenses of legal-minded objectivity and humanitarian efforts for change revealed a clear and undeniable conclusion: tribal water law is an uphill battle. Most U.S. Representatives and practicing attorneys would be far from proclaiming that tribes have less right to water than other users and their right to water is legally established by the Winters doctrine. This doctrine, established in Winters v. United States, 207 U.S. 564 (1908), makes clear that Native American reservations are accompanied with the necessary water rights sufficient to fulfill the purpose of the reservation. Heather White Man Runs Him, an attorney for the Native American Rights Fund in Boulder, Colorado, presented her concerns over issues of legal ethics in the multi-faceted practice of tribal water rights settlement.

Federal Indian law is founded in international law. As such, the underpinnings of Heather White Man Runs Him’s presentation came from modern, international human rights declarations. In 1999, the United Nations General Assembly (“UNGA”) affirmed that “the rights to food and clean water are fundamental human rights” and declared their promotion a “moral imperative.” In 2010, the UNGA formally recognized the fundamental right to water and that “clean drinking water and sanitation are essential to the realization of all human rights.” In the same year, President Obama changed the position of the United States to support the UN Declaration on the Rights of Indigenous People (“UNDRIP”).

The UNDRIP recognized that indigenous peoples and individuals have the right to: (1) the full enjoyment of all officially-recognized human rights and fundamental freedoms; (2) the enjoyment of the highest attainable standard of physical and mental health; and (3) the continued enjoyment of their strong, distinctive spiritual relationship with their traditionally used or occupied lands, territories, and waters. This last item is expanded in Article 26 of UNDRIP, which recognizes the right of indigenous peoples to own, use, and develop the lands, territories, and resources that they have traditionally occupied or otherwise used or acquired.

As illustrated by these legal precedents, the federal government has twice recognized that indigenous people have the right to own and use water. This recognition represents both a right in and of itself and a necessary means by which indigenous people can enjoy other guaranteed human rights. Only 0.6 percent of the United States population lacks access to safe drinking water and wastewater disposal. However, in 2011, a grossly disproportionate thirteen percent of Native Americans lacked access to drinking water and wastewater disposal. Meanwhile, between 2008 and 2010, the U.S. Government spent more money on foreign water projects than it has on Native American water projects in the last twenty years.

Recent case law has cast doubt on the government’s commitment to these promises as well. In Standing Rock Sioux Tribe v. Army Corps of Engineers, 205 F. Supp. 3d 4 (D.D.C. 2016), the plaintiff tribe asserted the right to spiritually pure water. The facts of the case recognized the historical and contemporary use of waterways, artifacts, and landmarks in spiritual practices, and how the construction of a pipeline will irrevocably damage the usability of water for spiritual purposes. However, the court held that there was no right to “spiritually pure” water. In Hopi Tribe v. United States, 782 F.3d 662 (Fed. Cir. 2015), the tribe claimed that past executive orders and the Winters Doctrine created a fiduciary duty on the part of the government to ensure the quality of tribal waters. The U.S. Court of Federal Claims dismissed the case, and the Court of Appeals affirmed. The ongoing litigation of the Agua Caliente case in California further justifies the doubts many people harbor regarding the government’s commitment to tribal water rights. In Agua Caliente, the tribe is litigating for its right to groundwater, as well as surface water, under the Winters doctrine. Water is of paramount significance to the Agua Caliente Band of Cahuilla Indians—they live in a desert.

Heather White Man Runs Him included a discussion of the ABA Model Rules of Professional Conduct in her panel presentation. These rules make no explicit references to human rights. However, human rights issues are a driving force for many people in their decision to attend law school. Simultaneously, legal ethics do recognize inherent human dignity as a component of the attorney-client relationship. Further, while Rule 2.1 of the Model Rules of Professional Conduct only allows for moral counsel to clients, comment 2 states that “it is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice.” Comment 2 goes on to explain the close relationship between moral and ethical considerations and their influence on the application of the law.

Another presenter brought pictures drawn by Native American children to show what they thought was the true source of water: trucks. A generation of children believe that pick-up trucks loaded with water jugs is the most reliable source of water—they are being taught that they cannot rely on the land. Evidence of such skewed perceptions created by a lack of clean water further emphasizes the necessity for efficient litigation and settlement of water disputes involving indigenous people.

Heather White Man Runs Him’s presentation brought to mind questions of how one can ethically represent clients responsible for projects that damage water quality or limit peoples’ access to water. The ABA recognition of contemporary principles of ethical considerations has oscillated between being slow to change and progressing rapidly. In 2012, the ABA adopted UN guiding principles on human rights. Practitioners like Heather White Man Runs Him are at the forefront of questioning exactly how these ethical principles will be implemented.

Garrett Kizer

Image: The Cannonball River in North Dakota, near the Standing Rock. Flickr user, Jimmy Emerson, DVM. Creative Commons.


Western States Water Conference and Native American Rights Fund 15th Biennial Symposium on the Settlement of Indian Reserved Water Rights Claims

Great Falls, Montana                                              August 8-10, 2017

 

Every other year since 1991, the Western States Water Conference (“WSWC”) and the Native American Rights Fund (“NARF”) hold a symposium to discuss the complexities of settling tribal water claims and to celebrate successes from the recent years. During the three-day symposium, various panels discussed the specific details of recent settlements and the logistics of negotiating and passing Indian reserved settlements in the contemporary political climate.

The location of the WSWC-NARF Symposium changes each year to coincide with a recent settlement.[1] This year, the Symposium highlighted the passage of the Blackfeet Water Rights Settlement (“Blackfeet Settlement”).[2] Congress passed the Blackfeet Settlement as part of the Water Infrastructure Improvements for the Nation Act (“WIIN Act”)[3] as their last action of the session in December 2016. In addition to the Blackfeet Settlement, the WIIN Act approved the settlements of three other tribal water rights: the Pechanga Band of Luiseño Mission Indians, five tribes from San Diego County, California, and the Choctaw and Chickasaw settlements.[4] Representatives from the tribal, state, and/‌or federal negotiating teams of each of these settlements presented in Great Falls, Montana. Despite passage in the same bill, the Symposium presenters stressed the unique historical contexts, negotiation histories, and impacts of the four settlements. While each Indian water rights settlement is unlike any other settlement, mutual respect and cooperation by the parties are the key ingredients to any successful negotiation. In that spirit, this note will highlight the four settlements of the WIIN Act, presenting the individuality of these four historic deals and the cooperative successes of the negotiating teams from each settlement.

Blackfeet Settlement

Attorneys from Brownstein Hyatt Farber Schreck, the Montana Office of the Attorney General, the Department of the Interior, and the Department of Justice discussed the process of their negotiations and the logistics of the Blackfeet Settlement, while tribal leaders presented the Blackfeet historical and cultural perspectives leading up to and throughout the negotiations.

The Blackfeet Settlement represents over thirty years of litigation, discussion, and compromise in a complicated legal context. The Blackfeet initially resisted the compacting process beginning in the 1970s over concerns of tribal sovereignty and state intrusion, but after years of stilted litigation, the Tribe agreed to negotiate in the 1980s. The Blackfeet-Montana Water Rights Compact established tribal rights on all surface and groundwater within the exterior boundaries of the reservation, subject only to previously established state rights on a few rivers that support irrigation in highly profitable agricultural lands, which are protected from calls by the Tribe. There were previous decrees and even international treaties the negotiating teams had to account for in the compact as well.[5] Although overall nearly ninety-five percent of the water from six basins is now under tribal jurisdiction, it is important to give the tribe opportunities to bring drinking water to reservation communities and market water off-reservation for revenue. These future projects, however, are not strictly delineated in the compact: the parties worked hard to create sufficient flexibility for forthcoming tribal governments to meet the needs of the tribe in the future, rather than tying funding to predetermined plans.

Another unique aspect of the compact is the recognition of tribal water rights in the Lewis and Clark National Forest and Glacier National Park: the Blackfeet ceded the lands in 1895 but did not cede their reserved water rights, which are now formally protected. At $422 million in federal funds, the Blackfeet Settlement represents the largest federal allocation in an Indian reserved water rights settlement to date.[6]

The presenters again and again expressed gratitude, respect, and admiration for the hard work and dedication of the negotiating parties over the years. The negotiations were born out of contentious litigation and required deliberate cultivation of trusting relationships between the Montana Compacting Commission, tribal leaders, and federal stakeholders from various agencies. It took nearly nine years after the conclusion of negotiations between the parties in 2007 to get federal recognition in 2016.

Choctaw-Chickasaw-Oklahoma City-Oklahoma Settlement

Senior Counsel for the Chickasaw Nation discussed the particularly unique agreement—both in terms of process and outcome—between the Choctaw Nation, the Chickasaw Nation, Oklahoma City, and the state of Oklahoma that resolved long-standing questions over water rights and regulatory authority in the historic treaty areas of the Choctaw and Chickasaw nations. This settlement[7]—the first Indian water rights settlement in the state that is home to thirty-nine federally recognized tribes—came together in lightning speed compared to the usual course of Indian reserved water rights negotiations, which, in many cases, can take decades to finalize. Tribal and state officials worked through five years of state and federal litigation and negotiation to develop the plan, which allows Oklahoma City to draw water from nearby Lake Sardis for municipal use with limits to protect valuable tourist attractions and ecological resources. In return, the tribes renounced any reserved rights to the water, but gained a seat at the table for future decisions about the use of the water at the state level.

The agreement created a five-person commission, comprised of representatives from the city, state, and both tribal governments, to oversee future out-of-state transfers of water in the settlement area as approved by the state legislature, which covers twenty-two counties of southeast Oklahoma—the most water-rich region of the state. These resources are the backbone of vibrant tourism and recreation markets that generate significant economic activity in the area. Thus, this commission was also charged with ensuring that future consumptive use does not unduly compromise the recreational value of the waters. This mutual desire to protect cultural, recreational, and ecological resources formed the foundation for successful negotiation and mutual respect between the tribes and the state and city governments, who, prior to negotiations, had strained relationships.

By renouncing claims to reserved rights, the settlement came to Congress without the need for any federal appropriations. Because of this lack of financial input, the congressional review process was very quick: the negotiation team announced their settlement in August 2016 and it was approved in the WIIN Act only four months later. Counsel for the Chickasaw Nation noted that, while this settlement was particularly unique in its speed and lack of federal reserved rights, it demonstrates what parties can accomplish if they approach a common interest with creativity and a desire to negotiate a solution.

San Luis Rey Settlement

The last two Indian reserved water rights settlements included in the WIIN Act both hail from southern California. In a series of cases from the 1960s, 70s, and 80s, the La Jolla Band of Luiseño Mission Indians, Pauma Band of Luiseño Mission Indians, Rincon Band of Luiseño Mission Indians, and San Pasqual Band of Mission Indians (collectively, the “California Tribes”) challenged diversions of water from San Luis Rey River to profitable agricultural areas in Escondido and Vista. These diversions left the reservations, once abundant in water, wildlife, and vegetation, high and dry since the late 1890s. Temet Aguilar, chairman of Pauma Band of Luiseño Mission Indians, remarked on a panel focused on identification of stakeholders for successful negotiation groups, that his people watched the explosion of exceedingly prosperous agriculture and residential areas in southern California from their parched and deeply economically depressed missions. Without reliable access to water since the diversions began nearly 130 years ago, the California Tribes lacked drinking water for their peoples, water for agriculture, and water for economic development.

The California Tribes, federal government, city governments, and irrigation districts involved in litigation reached a partial settlement in 1988, which earmarked federal funds to create and operate the San Luis Rey Water Authority to regulate the river. However, questions still existed about how to allocate an already fully used river: the California Tribes received paper rights, but no wet water came to the reservations.[8] The parties persisted and eventually lined an already existing canal to prevent seepage, creating an additional 100,000 acre feet per year—more than enough to satisfy the California Tribes’ reserved rights—which now allows the California Tribes to sell excess water back to the municipalities, generating a much needed source of additional revenue. In 2014, when the parties presented this settlement to Congress hoping to access the millions of federal funds set aside in the 1988 settlement, new budgetary constraints and considerations forced the parties to comply with new requirements by amending the 1988 settlement, which ultimately passed in the WIIN Act.[9] Because the amendments made it possible to access the already allocated money, no new or additional federal funding was necessary. The 1988 fund with interest now amounts to $60 million available to the California Tribes for infrastructure.

For Aguilar and his tribal counterparts, this fight for water spanned generations. He expressed deep sadness that many of the tribal leaders who initiated the process so long ago have passed away and were not able to see the culmination of their hard work. According to Aguilar, the conclusion of their efforts reinforced his peoples’ rightful place in 21st century Southern California for generations to come. “We’re not going anywhere,” Aguilar said.

Pechanga Settlement

The final Indian reserved water rights settlement passed in the 2016 WIIN Act resolved the oldest civil lawsuit in the country. In 1951, the federal government sued thousands of landowners and several Indian tribes in the Temecula Valley of Southern California to secure its exclusive use of the Santa Margarita River for the Camp Pendleton military base. In 1963, a federal court issued a decree affirming—but not quantifying—many rights including tribal reserved rights. In 2007, the Cahuilla Band of Indians, the Ramona Band of Cahuilla Indians, and the Pechanga Band of Luiseño Indians all filed motions to quantify their reserved rights in the watershed. Being a particularly complicated lawsuit, a technical consultant addressed the Pechanga settlement on a panel dedicated to the importance of technical information in legal negotiations.

The Cahuilla and Ramona are still negotiating, but the Pechanga received nearly 5,000 acre feet of quantified reserved rights and $28 million in federal appropriations to build necessary infrastructure to bring that water to the people as part of their settlement approved in the WIIN Act.[10] The parties reached their settlement in 2008, just one year after the Pechanga moved for quantification, but the arduous process of federal approval took another eight years. The agreement is a unique collaboration between the sovereign Tribe and local state water providers to manage water in the basin: the Tribe agreed that water allocated to them by the eastern water district outside this settlement would count towards its reserved rights. Individual allotees are also protected and may access the high-quality groundwater for drinking or agricultural uses.

Overall, the WIIN Act put the cherry on top of the Indian water rights sundae of the Obama Administration: under the policy directives of President Barack Obama, twelve Indian water rights settlements were completed during his tenure, more than any other administration to date. While the quantity is impressive, the quality of each settlement is what really matters: water is a vital component to public health and economic development that is at the heart of many tribes’ quest for recognition of their reserved rights, and negotiations serve as a means for tribes to access necessary resources while developing positive relationships with state and federal counterparts.

Aubrey Ryan Bertram

Image: Badger Creek in Lewis and Clark National Forest. Flickr user, Forest Service Northern Range. Creative Commons.

       [1].    This year’s symposium was held in Great Falls, Montana, about two hours southeast of the Blackfeet tribal headquarters of Browning, Montana. The early August symposium coincided with peak tourist season in Glacier National Park, which is adjacent to the Blackfeet Reservation in northwest Montana. The busy tourist season precluded available hotel and conference space on the reservation.

       [2].    Water Infrastructure Improvement for the Nation Act, Pub. L. No. 114-322, §§ 3701–24, 130 Stat. 1628, 1814–45 (2016) (“WIIN Act”).

       [3].    Id.

       [4].    See generally WIIN Act §§ 3401–13, 3605–08, 130 Stat. at 1755–71, 1793–14; Because of the federal oversight of tribes’ limited sovereignty and tribal interests, Indian reserved water rights settlements must be approved by congressional legislation, per Congress’s plenary power over Indian affairs. United States v. Kagama, 118 U.S. 375 (1886).

       [5].    Birch Creek, which is the southern boundary of the reservation, is subject to a 1908 decree contemporaneous with Winters, but it failed to recognize the Blackfeets’ reserved rights. Conrad Investment v. United States, 161 F. 829 (9th Cir. 1908); The St. Mary River and the Milk River are subject to the 1909 Boundary Waters Treaty, Treaty between the United States and Great Britain relating to boundary waters between the United States and Canada. U.K.-U.S., Jan. 11, 1909, 36 Stat. 2448.

       [6].    The Blackfeet Settlement allocates $420.2 million from the federal government. The Confederated Salish-Kootenai Compact, approved by the Montana state legislature in 2015 and currently pending before Congress, asks the federal government to invest $2.3 billion dollars. See Corin Cates-Carney, Interior Balks at Cost of CSKT Water Compact, Mont. Pub. Radio (June 29, 2016), http://mtpr.org/post/interior-balks-cost-cskt-water-compact.

       [7].    WIIN Act § 3608, 130 Stat. at 1796–14.

       [8].    WIIN Act § 3605, 130 Stat. at 1793–94.

       [9].    Id.

     [10].    Id. §§ 3401–13, 130 Stat. at 1755–71.


35th Annual American Bar Association Water Law Conference

       Los Angeles, California                           March 29, 2017

The Future of Indian Water Right Settlements in an Age of Uncertainty

 

Jennifer Gimbel, a senior research scientist at Colorado State University, moderated the panel discussion entitled, “The Future of Indian Water Right Settlements in an Age of Uncertainty.” Gimbel began her introduction by acknowledging that certainty is the main goal when identifying water rights; states and water users want to know what belongs to Indians and how they want to use it. Gimbel introduced two of the most pressing sources of uncertainty—funding and resources.   Over the last few years, states “ponied up” a considerable amount for successful settlements. Nonetheless, states want to maintain control over water, making it difficult to determine how water rights should be administered.

Pamela Williams, Director of the Secretary’s Indian Water Rights Office in the U.S. Department of Interior (“Department of Interior”), began her discussion by quoting Secretary Ryan Zinke:

I believe Indian water right settlements are a critical part of the United States government’s responsibility for tribes across the country. During my time as a Montana congressman, I fought [to ratify] the Blackfeet Nation’s water compact because water is both life to the Tribe and also a key resource for the surrounding community. Not only is water an economic driver, it is an important component of [Blackfeet Nation’s] culture and traditions. As Secretary of the Interior, I recognize the importance of maturing these resources.

Williams then said that water right settlements are not over, they will continue. By Williams’s count, over the past thirty years, Congress enacted thirty-one settlements. The Department of Interior is “hard at work” on the eighteen settlement negotiations in place and are implementing the recently enacted settlements.

Williams continued by discussing the way in which the Department of Interior handles Indian water right settlements. A group called “Working Group on Indian Water Right Settlements,” which is composed of high-level decision makers, including all assistant secretaries and the Solicitor, makes recommendations to the Secretary of Interior regarding Indian water right settlements. The Secretary’s Indian Water Rights Office coordinates Indian water rights settlements through teams in the field that include representatives from, inter alia, the U.S. Bureau of Indian Affairs, the U.S. Bureau of Reclamation (“Reclamation”), the Solicitor’s Office, and the U.S. Department of Justice.

In 1990, the Criteria and Procedures for Participation of Federal Government in Negotiating for Settlement of Indian Water Rights Claims was published in the Federal Register. Williams clarified that these Criteria and Procedures are not regulations, but rather they are guidelines agencies and administrations follow to determine what settlements it will support and the extent of federal contributions. Since the 1990 publication, every administration has applied the Criteria and Procedures with varied interpretations. Williams acknowledged that some individuals think they are poorly written, while others think they are a masterpiece of flexibility.

Williams then discussed a recent development regarding negotiating water rights settlements. In February 2015, Representative Rob Bishop, Chairman of the United States House Natural Resources Committee, sent a letter to the Department of Interior and the Department of Justice outlining the process that the House Resources Committee would follow when entertaining Indian water rights settlements. Specifically, he requested a formal statement from the Department of Interior and Department of Justice affirming post-settlement compliance with his additional criteria that emphasize compliance with the 1990 Criteria and Procedures focusing on financial aspects of settlements. The Department of Interior complied and provided statements on binding water right settlements, including the four passed in the 114th Congress. Those four included Blackfeet Water Rights Settlement Act – a “tremendous victory” – Pechanga Band of Luiseno Mission Indians Water Rights Settlement Act, amendments to the San Luis Rey Indian Water Rights Settlement Act, and Chocktaw Nation of Oklahoma and the Chickasaw Nation Water Settlement. Williams noted the Bishop process is functioning—although it is not followed in the Senate, it is followed in the House.

Vanessa Ray Hodge, an attorney at Sonosky, Chambers, Sachse, Endreson & Perry, continued the discussion by focusing on the Criteria and Procedures applied to Indian water rights settlements. The 1990 Criteria and Procedures purport to guide Indian water rights settlement negotiations. Hodge noted that the sixteen criteria were developed in response to a Federal executive branch desire to have a more principled negotiating role and intended to outline general policy goals that water settlements should reflect. These include substantive goals such as federal waivers, legal claims, appropriate financial contribution (including federal government and non-Indian parties), and procedural goals such as how to budget the settlements, types of funds to create settlement, and calculating infrastructure cost.

At the time the 1990 Criteria and Procedures were developed, Congress passed few settlements. Indian water rights settlements significantly increased and, over time, the Department of Interior and Department of Justice developed a specific approach to their application of criteria and procedures for settlements. Hodge opined that Department of Interior generally applies those procedures to all Indian water rights settlements, notwithstanding factual histories or circumstances related to individual tribes and their specific negotiations. In that regard, Hodge believes that, although the 1990 Criteria and Procedures are useful, they should be updated to reflect a more holistic approach to Indian water rights settlements.

Maria O’Brien of Modrall Sperling in Albuquerque, NM, took a step back from the technical discussion and first asked, “Why should we care about Indian water rights settlements?” The answer, she said, “Start[s] with the premise that Indian water rights require a source and certainty of access to supplied water to sustain homelands and economic development.”

Indian water rights settlements play a significant role by acting as a mechanism for solving a “complex conquest over water.” Thus, O’Brien continued, irrespective of ever-changing administrations, we will continue needing Indian water right settlements. Conflicts over water are consistent, and a myriad tribes throughout the United States are still without water rights settlements.

Settlements allow flexible, creative approaches and solutions to issues involving infrastructure and water allocation—issues that could not be addressed by simply quantifying Indian water rights in the context of litigation. Settlements, as opposed to litigation, unite states, the federal government, tribes, and other significant water users, which can provide varied resources not limited to financial contributions, such as modeling resources and technical assistance. These broad contributions enable the settlements to move forward and solve disputes over Indian water rights as well as local concerns about the water supply in a way that is not possible when resorting to litigation.

O’Brien then discussed a recent success in Indian water rights settlement arena — Oklahoma’s first Indian water right settlement between Choctaw Nation of Oklahoma and Chickasaw Nation. Congress enacted this Indian water right settlement in December 2016, after five years of negotiation. It started with litigation, but Oklahoma and the Tribes decided to “roll up their sleeves” and reach a settlement. The federal government participated in the negotiation and was instrumental in its success. O’Brien considers every settlement to be unique, and in this one, Oklahoma and the Tribes needed work through policy issues that sourced their mutual conflict for many decades. Although settlements are unique, common issues do prevail, such as a mutual desire to reach a resolution and identify core principles at issue. It can take a substantial amount of time for parties to articulate their individual needs. Even so, settlements are favored over litigation because they encourage resolution rather that frame settlements as purely adversarial.

Next, Williams discussed the way in which the federal government funds these settlements. In 2009, from the same Omnibus Appropriations bill that enacted the Navajo Water Rights Settlement Act, Congress created a reservation settlement fund that is apportioned from the Bureau of Reclamation fund containing billions of dollars. The reservation settlement fund only applies to settlements with a Bureau of Reclamation component and does not relieve financial pressure on the Bureau of Indian Affairs. The reservation settlement fund is intended to last until 2029 and provide roughly $120 million per year for certain identified settlements. These include the Crow and Blackfeet Tribes in Montana that settled for roughly $400 million each, and the Navajo Tribe in Arizona that settled for one billion dollars.

Finally, O’Brien extended the dialogue by differentiating the types of available funding. She first explained that congressionally enacted settlements rely on discretionary funding which only authorizes appropriations for each individual settlement. This discretionary funding is given to the Bureau of Indian Affairs and the Bureau of Reclamation (when projects involve a water settlement component) when the agencies ask for funds in their programmatic budget to fulfill financial obligations when settlements are enacted.

On the other hand, the 2010 Claims Resolution Settlement Act provided mandatory congressional funding for Indian water rights settlements enacted under this statute. For Congress to appropriate mandatory funding, it must find a same-year offset, meaning Congress reallocates funding from one program into another needing the mandatory funds. One of the first Indian water settlements receiving mandatory funding was the Crow Tribe Water Rights Settlement Act, which is almost fully funded, unlike the discretionary funding for the Pechanga and Blackfeet Tribes water rights settlements which are funded over time.

 

Gia Austin

Image: Lake Powell and Grand Staircase-Escalante as seen from space. Flickr user NASA, not copyrighted.


Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262 (9th Cir. 2017) (holding: (i) the United States impliedly reserved a water right when establishing the Agua Caliente Reservation; (ii) the Tribe’s implied federal reserved water right extended to groundwater; and (iii) the Tribe’s state water entitlements to groundwater did not disqualify its implied federal reserved water right).

The Agua Caliente Band of Cahuilla Indians (“Tribe”) inhabited the Coachella Valley prior to California’s Admission to the Union in 1850. Two Presidential Executive Orders issued in 1876 and 1877 established the majority of the Agua Caliente Reservation. Today, the United States holds a series of lands that that are “interspersed in a checkerboard pattern” in trust for the Tribe.

The Coachella Valley contains an arid southwestern dessert. Rainfall averages three to six inches per year and the Whitewater River System, the only source of surface water, produces a fluctuating annual supply between 4,000 and 9,000 acre-feet that primarily occurs in winter months. Currently, the Tribe receives surface water from the Whitewater River System consistent with the Whitewater River Decree, a 1983 California Superior Court adjudication that addressed state-law water rights for river system users. The adjudication resulted in a state court order that allotted water for the Tribe’s benefit, primarily because the United States, as holder of partial Agua Caliente Reservation lands in trust, participated in the adjudication on the Tribe’s behalf. However, the adjudication reserves only a minimal amount of water for the Tribe, providing enough to irrigate nearly 360 acres of the reservation’s approximately 31,369 acres. Additionally, the river system peaks in the winter months, which leaves the allotment filled outside of growing season.

This inconsistent and “virtually nonexistent” surface water supply causes the Tribe to predominantly rely on groundwater for all consumptive use on the reservation during the year. Therefore, almost all regional water is sourced from the Coachella Valley Groundwater River Basin, the aquifer underlying the valley. The Tribe, however, does not pump groundwater on its reservation, but purchases groundwater from the Coachella Valley Water District and the Desert Water Agency (“water agencies”).

Over concern for diminishing groundwater resources, the Tribe filed an action for declaratory and injunctive relief against the water agencies in the United States District Court for the Central District of California. The Tribe requested a declaration that it had a “federally reserved right and an aboriginal right to the groundwater underlying the reservation.” The district court later granted the United States’ motion to intervene as a plaintiff to support the Tribe’s allegation that it had a reserved right to groundwater.

The parties divided the litigation into three phases. With respect to Phase I, the only phase relevant for this case, the district court held that “the reserved rights doctrine applied to groundwater and that the United States reserved appurtenant groundwater when it established the Tribe’s reservation.” Subsequently, the district court certified its order for interlocutory appeal and the water agencies petitioned the Ninth Circuit Court of Appeals for permission to hear the appeal. The court, on de novo review, addressed the only issue on appeal: whether the Tribe had a federal reserved right to the groundwater underlying its reservation. In so doing, the court approached its analysis in three steps.

First, the court determined whether the United States impliedly reserved water when establishing the Agua Caliente Reservation. This question is two-pronged: (1) whether water is reserved if a reservation’s primary purpose anticipates water use; and (2) if so, whether the Agua Caliente Reservation’s primary purpose contemplated water use.

The court began its analysis by examining the Winters doctrine, and found that it established that “federal reserved water rights are directly applicable ‘to Indian reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams.’” However, the Winters doctrine is limited to certain situations; it reserves water necessary to accomplish the purported means of the reservation and reserves water if it is appurtenant to the withdrawn land. Following that understanding, the court differentiated the parties’ and the district court’s application of the Winters doctrine that specifically addressed whether the Tribe’s reserved right extended to groundwater from the more overarching issue concerning whether the mere existence of a federal reserved right depended on the Agua Caliente Reservation maintaining an implicit right to use water.

The court then evaluated the first prong when addressing the Tribe’s implied reserved right to water. The court invoked United States v. New Mexico and reasoned, “the federal purpose for which land was reserved is the driving force behind the reserved rights doctrine.” Further, that the New Mexico Court patterned a consistent conclusion whenever the reserved water rights doctrine is raised—an insufficient water supply defeats the purposes of the reservation. Therefore, the court adopted New Mexico’s holding that water is reserved when the reservation’s primary purpose foresees water use. The court then evaluated the second prong, whether the Tribe’s primary purpose contemplated water use. To answer this question, the court synthesized the Executive Orders establishing the Agua Caliente Reservation and Supreme Court precedent to conclude that “the primary purpose underlying the establishment of the reservation was to create a home for the Tribe, and water was necessarily implicated in that purpose.” Therefore, the United States impliedly reserved water for the Tribe.

Second, the court addressed whether the Tribe’s implied reserved water right extended to the Agua Caliente Reservation’s underlying groundwater. The court reiterated the Winters doctrine requirements and determined that although the Tribe met the first requirement that the reservation’s purported means necessitated water use, the second requirement that unappropriated water must be appurtenant to the reservation remained. To find a resolution, the court reasoned that appurtenance is not limited to surface water and extrapolated from Supreme Court precedent that the United States can protect groundwater and, along that vein, impliedly reserved water may include appurtenant groundwater. Further, the court considered the Tribe’s reliance on groundwater when reasoning that the minimal surface water availability conditions the Tribe’s survival on groundwater access. From this line of reasoning, the court clarified that the Winters doctrine purported to provide sustainable livelihoods to Tribes inhabiting reservations in arid areas, like the Agua Caliente Reservation, and included access to both appurtenant surface water and groundwater. Therefore, the Tribe’s implied reserved water right included groundwater.

Third, the court addressed whether the above two holdings withstood the water agencies’ arguments that: (1) the Tribe received water pursuant to California’s correlative rights doctrine; (2) the Tribe did not need a federal reserved right to groundwater in light of its allotted surface water from the Whitewater River Decree; and (3) the Tribe never drilled for groundwater on its reservation. The court rejected each in turn. First, federal water rights, such as the implied federal reserved water right, preempt state water rights. Second, New Mexico did not inquire into the current necessity of water, it focused on whether the reservation’s inception purported such a necessity. Third, lacking historical access to groundwater on the reservation did not foreclose the Tribe’s current access to groundwater. Therefore, compounded with the federal primacy of reserved water rights, the Tribe’s implied federal water right to groundwater remained intact.

Accordingly, the court affirmed the district court holding that the United States impliedly reserved appurtenant groundwater when creating the Agua Caliente Reservation.

                                                                                                        Gia Austin

Image: Santa Rosa and San Jacinto Mountains National Monument, California. Flickr User Bureau of Land Management, Creative Commons.


Recently, a court in India has made a dramatic decision to give rivers legal rights in an attempt to curb pollution. While India’s Supreme Court overturned the ruling as legally unsustainable in July, this continues a global trend of recognizing the rights of water sources as opposed to just those that use the water. Potentially, this trend could come stateside, offering a unique way for Native American tribes to protect waters they consider sacred.

 

The Rights of Rivers in India

The high court in Uttarakhand, India, where the Ganges River originates, recently granted the Ganga and Yamuna rivers and their tributaries rights as “living entities.” This gives the river and its tributaries, regarded as holy by millions of Hindus, the same rights as people, making the harming the river equivalent to harming a person. The ruling also appoints three officials to represent rivers as legal guardians. In theory, these guardians may then sue on behalf of the rivers for damages since their title gives them legal standing,

This is the court’s most recent attempt to address the pollution problem affecting rivers that supply water for forty percent of India’s population. Critics, including the courts, have called national government efforts ineffective at slowing the estimated two billion liters of waste entering the river each day. Economic development and population growth are primary culprits for this waste.

To support its decision, the Uttarakhand court cited a recent New Zealand law that also grants a river the same legal rights as people. The Whanganui iwi Tribe worked with the government to recognize the Whanganui River and grant it protections as an ancestor. Similar to the court ordained decision in India, this law also appoints legal guardians charged with protecting the river. The river has the same protections from harm as a Whanganui iwi tribal member.

In July 2017, the Supreme Court of India reversed the ruling at the urging of the local state government in Uttarakhand. The Court cited complications in implementing the law across jurisdictions, since the Ganges runs through much of India. And it noted the ruling would allow actions against the river, such as murder or wrongful death claims for people killed in floods. Despite this setback, the ruling remains an novel solution to a severe problem.

 

Rights of Water Sources in the U.S.

The idea of granting legal rights to inanimate objects, specifically natural resources, is not alien to the United States. There are advantages to granting a water source specific rights, discussed at length by Cristopher Stone, Professor of Law at the University of Southern California, in a 1972 journal article. Stone argued giving an entity like a river judicial standing, or a right to sue for a perceived harm, would allow for greater justice for ecological harms. For example, if a polluter dumps in a river, the only current avenue for recovery is for those non-river entities harmed by the pollution to sue. If pollution doesn’t significantly bother a downstream user, or that user is a polluter itself, that individual may not ever bring a suit and the harm would go unchecked. A river could sue for the entirety of harms suffered.

U.S. Supreme Court Justice Douglas agreed with Stone, in a dissenting opinion also authored in 1972, Sierra Club v. Morton.  His dissent cited public concern for nature and ecology, and called for those with a meaningful relation to water to be able to speak for it. He used the analogy of ships and corporations, both of which have legal personality that grants them rights in litigation. While stirring, this view has failed to gain traction in the following decades.

A likely cause for this is that it could be politically unpopular. The Blaze, a conservative U.S. news source, pushed back against the New Zealand law. Ironically, it attacks the law for one of the same reasons Stone argued natural resources should have standing. The Blaze article is concerned with giving rights to non-living entities, when New Zealand does not recognize rights for unborn children because it does not ban abortion. As Stone himself recognized, there is difficulty in getting Americans to accept an inanimate object has standing. As an example, he cites the backlash from corporate personhood, a debate that still goes on. And at a more technical level, water as a commercial commodity with multitudes of competing interests and disagreement over what constitutes “public interest” and “beneficial use” in the American West’s established prior appropriation system complicates matters.

 

Recognizing Sacred Sources: Difficulties and Consequences

However, there is one avenue where an attempt to give a water source standing could arise, mirroring New Zealand’s legislative approach. America could potentially work to recognize water sources as having rights as a sacred part of Native American history and culture. University of Montana Profess of Law Michelle Bryan recently explored this possibility and its challenges in a Natural Resources Journal article.

Indigenous groups across the world treat waters as sacred in several ways. Like the Maori, water sources can have spiritual significance and consider the sources as an ancestral member of the tribe. Alternatively, the waters can have ceremonial value, or locational significance to a tribe, such as for a creation story. Unfortunately, there is little legal protection for sacred water on a global scale. Tribes have few alternatives to protect what they have not legally been appropriated. These sources can be “vulnerable to diversion, consumption, contamination, and other impacts that damage the very essence of what makes them sacred.”

Recognizing sacred water rights challenges the traditional prior appropriation schematic factors of: beneficial use, diversion, seniority, abandonment, and public interest. First, sacred water currently lies outside accepted ideas of beneficial use. Second, since sacred waters’ value exists typically in place as part of the source, it is difficult to show diversion. Third, these rights would likely be subject to senior, preexisting rights. Fourth, where use is difficult to show, rights are subject to abandonment, or the idea of “use it or lose it.” Finally, many states require water uses promote public interest, which is vague, but seems to prefer economic benefit over social utility.

States sometimes have statutes that define in-stream uses like fishing rights to avoid diversion and abandonment by non-use. And several federal doctrines offer some relief for tribes. The Winters Doctrine, for example, reserves water rights for tribes that vest upon creation of the reservation, in amounts “sufficient to fulfill the purposes of the reservation.” This water reservation is independent of both beneficial use and loss by non-use. The Winters decision allows relating back water use to creation of the reservation, which can give tribes a higher seniority than water rights holders who perfected their rights after reservation creation. Unfortunately for tribes, fixing these rights can be limited to Practically Irrigable Acreage, the minimum water the tribe needs to sustain itself agriculturally.

Success stories are rare. For example, members of several Native tribes were unable to show sufficient harm to their religious practices to prevent construction of a solar energy facility that would cut off their access to the Salt Song Trails in the Southwestern United States. Professor Bryan notes the difficulties coupled with a lack of state and federal support means the stars must align to protect a water source as sacred to a tribe. And other rights holders understandably get nervous when their rights could disappear or reprioritized.

Bryan suggests negotiating treaties with tribes, like the New Zealand legislature did creating their law, that recognize sacred waters as a right inherent to the river itself and not with people. This would be a resurgence of the arguments put forward by Stone and Justice Douglas. However, negotiations would be a long process. It is also possible to protect water within our current system. Recognizing sacred waters as a legitimate public interest and beneficial use are key steps in this direction.

Bryan may underestimate the usefulness of the Winters Doctrine. She notes examples of tribes using it are becoming rarer, but perhaps this is because they haven’t fully explored its usefulness. However, at least one state has recognized an avenue to use the Winters Doctrine to preserve sacred water sources.

A 2001 Arizona Supreme Court decision involving the Gila River (In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source) recognized that the act of measuring a tribe’s minimal need by the Practicably Irrigable Acreage standard is antiquated. Instead, the court suggested several factors to consider in deciding what a tribe needs, notably including a tribe’s history and culture. If their culture considered a water source sacred, they could reserve the minimum amount needed to preserve that source, potentially a significant amount. This would allow relating the right back to creation of the reservation, jumping other appropriators with junior rights.

If you close your eyes, you can almost hear other appropriators crying “foul!” Significantly appropriating a source this way would likely be a tough pill for courts to swallow, as well. But the threat of such a possibility could bring parties to the negotiating table. Tribes could have more bargaining power to be a part of the water allocation process, representing the tribe or river.

In Arizona, Rod Lewis, a Native American attorney involved in the Gila River adjudication has gained a seat on the Central Arizona Water Conservation District Board. He will have a voice for the tribe in state water allocation. From such a position, tribes could influence state water boards to further protect sacred waters, possibly influencing a formal recognition of sacred water as a beneficial use or as part of the public interest.

Recognizing sacred rights could have had implications for the Standing Rock and Cheyenne River Sioux protesting the Dakota Access Pipeline beneath Lake Oahe in South Dakota. Perhaps if the tribes could have sued not as themselves, but on behalf of the lake, they could have showed a greater potential for damage. The Tribes may have had a better shot at getting an injunction halting the pipeline if they could argue standing on behalf of this waterway.

In sum, giving water sources legal rights has moved from a hypothetical in law journals and dissenting court opinions to real statutory and common law around the globe. Perhaps it’s time America considered weaving it into its own system.

Michael Larrick

Image: “Indian at Sacred Lake” by Eanger Irving Couse, Wikimedia Commons.

 

Sources

Michael Safi, Ganges and Yamuna rivers granted same legal rights as human beings, The Guardian (Mar. 21, 2017, 7:44 AM), https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings?CMP=share_btn_link.

Dr. Afshan, Save The Ganges River, Scientific India (Jul. 24, 2014), http://www.scind.org/36/Social-Issues/save-the-ganges-river.html.

Eleanor Ainge Roy, New Zealand river granted same legal rights as human being, The Guardian (Mar. 16, 2017, 12:05 AM), https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being.

Cristopher D. Stone, Should Trees Have Standing? Toward Legal Rights For Natural Objects, 45 S. Calif. L. Rev. 450 (1972), available at https://isites.harvard.edu/fs/docs/icb.topic498371.files/Stone.Trees_Standing.pdf.

Sierra Club v. Morton, 405 U.S. 727, 741 (1972), available at http://caselaw.findlaw.com/us-supreme-court/405/727.html.

Justin Haskins, Crazy environmentalism: New Zealand law gives river human rights – but not unborn babies, Blaze (Mar. 18, 2017, 10:55 AM), http://www.theblaze.com/news/2017/03/18/crazy-environmentalism-new-zealand-law-gives-river-human-rights-but-not-unborn-babies/.

Michelle Bryan, Valuing Sacred Tribal Waters Within Prior Appropriation, 57 Nat. Res. J. 139 (2017), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2803691.

In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source, 35 P.3d 68 (Ariz. 2001).

Jack Newsham, Feds Blast Tribal Claim To Holy Site At Solar Power Plant, Law360 (May 9, 2016, 9:37 PM), https://www.law360.com/articles/794209/feds-blast-tribal-claim-to-holy-site-at-solar-power-plant

Dianna M. Náñez, Gila River member becomes 1st Native American to have a vote on Arizona water board, The Arizona Republic (Apr. 3, 2017, 6:02 AM), http://www.azcentral.com/story/news/local/arizona-water/2017/04/03/gila-river-member-becomes-1st-native-american-have-vote-arizona-water-board/99826278/.

Jeff Baenen, Company: Oil in pipeline under Missouri River reservoir, Assoc. Press (Mar. 27, 2017, 11:57 PM), http://bigstory.ap.org/article/9f3a519d5a2c4d9090c51b7bd8deab25/company-oil-pipeline-under-missouri-river-reservoir.


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

The Agua Caliente Band of Cahuilla Indians (“Agua Caliente”) holds impliedly reserved water rights in the Coachella Valley in Southern California.  President Ulysses S. Grant established the Agua Caliente’s reservation by Executive Order in 1876.  Today, water in the Coachella Valley is scarce, and the Agua Caliente seeks to satisfy the tribe’s needs by asserting that the tribe’s reserved water rights include the right to groundwater resources.  However, controlling law is unclear on the issue of whether tribal reserved water rights extend to groundwater.  State supreme courts are split on the issue.  The U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”) will be the first federal court of appeals in forty years to address the issue.  Specifically, the Ninth Circuit will consider whether when the government created Agua Caliente’s reservation the government impliedly reserved rights to groundwater in the context of California’s correlative water rights framework.

Background on Federal Reserved Rights to Water

Federal law provides a framework for Native American tribes’ possession of water rights.  These tribal water rights impliedly arise from the establishment of the reservation.  The reservation grant thus provides a property right to the land and an implied right to sufficient water to fulfill the purposes of the reservation.  Winters v. United States was the seminal case that established the implied reservation doctrine.  The Supreme Court held in Winters that the Fort Belknap tribes gained the right to use unappropriated water from the Milk River for the reservation needs.

Tribal reserved rights vest at the creation of the reservation and hold priority over those of future appropriators.  Tribes do not abandon the reserved rights by nonuse.  Further, most federal reservations predate, and therefore hold priority over, state water law rights.  Prior court decisions further explain the application of Winters to groundwater.

Tribal Reserved Rights to Groundwater Recognized by Litigation

The Agua Caliente court found persuasive that every court, with the exception of the Wyoming Supreme Court in a 1989 decision, that has addressed the issue of whether Winters extends to groundwater held in the affirmative.  Many courts declined to directly address the issue, but acknowledged the possibility that Winters could encompass groundwater.  The cases that have previously recognized tribal reserved rights to groundwater are not abundant, but they followed one of two lines of reasoning.  Some courts relied on the hydrologic interrelationship between groundwater and surface water to find that Winters applies to both.  Other courts took a logical approach and reasoned that groundwater should be available to fulfill a water reservation along with surface water.

In In re Gila River System & Source, the Arizona Supreme Court was the first court to expressly hold that the federal reserved rights doctrine extended to groundwater.  The Gila court’s 1999 opinion acknowledged that the hydrological connection between groundwater and surface water is such that groundwater pumped from a distance may significantly diminish the surface flow.  Nonetheless, Gila deemed the distinction between groundwater and surface water as insignificant for purposes of applying the reserved rights doctrine.  Even though the Gila court expressly extended the reserved rights doctrine to groundwater, it restricted tribal rights to groundwater.  Gila limited tribal reserved rights to groundwater to “where other waters were inadequate to accomplish the purpose of the reservation.”

In 2002, the Montana Supreme Court recognized a tribal federal reserved right to groundwater in Confederated Salish & Kootenai Tribes v. Stults.  In Salish, the court prohibited the state agency from issuing water use permits until the Confederated Salish and Kootenai Tribes quantified their water rights.  Like Gila, the court noted that the groundwater must be necessary to fulfill the purposes of reservation, but refrained from determining whether the groundwater at issue met this standard.  Instead, the court ruled that the tribes’ federally reserved water rights included groundwater.  The court’s holding was rooted in logic.  The court failed to find a reason to exclude groundwater from the tribes’ reserved water rights, so it refrained from limiting the tribes’ rights in such a way.

The hydrological connection between groundwater and surface water formed the basis of the Ninth Circuit’s extension of Winters to groundwater in United States v. Orr Water Ditch Co.  In that case involving the Pyramid Lake Indian Reservation, the court reasoned that the reciprocal hydraulic relationship between groundwater and surface water is such that allocations of groundwater would predictably affect the surface water in a nearby flowing river.  Further, the court interpreted the decree that reserved water in the Truckee River included a right to groundwater if the Pyramid Lake Paiute Tribe needed groundwater to fulfill the purpose of the reservation.  The court additionally held that because the tribe’s decreed rights were the two most senior water rights in the Truckee River and those rights extended to groundwater, other users’ allocations of groundwater may not adversely affect the tribe’s right to the surface water.

In New Mexico ex rel. Reynolds v. Aamodt, a New Mexico district court extended Winters to groundwater for hydrological reasons.  This case involved the Pueblo Indians’ prior right to water in a Rio Grande tributary for domestic and irrigation uses.  The decree gave the tribe water rights appurtenant to its irrigated acreage.  The court held that water rights appurtenant to the tribe’s land included groundwater because groundwater and surface water were physically interrelated, and therefore both were appurtenant to the tribe’s land.

Tribal Reserved Rights to Groundwater Recognized by Settlement

Indian Tribes have entered into settlement agreements to resolve disputes over federally reserved rights to groundwater.  Many of these settlement agreements expressly recognized tribal federally reserved rights to groundwater.

For example, a 2007 settlement agreement between the United States, the Lummi Indian Nation, and the State of Washington recognized the tribe’s right to groundwater on the Lummi Reservation in Northwest Washington.  The agreement resolved a water rights case in which the U.S. District Court for the Western District of Washington held that Winters rights on the Lummi Reservation extend to groundwater.  The agreement gave the Lummi the right to groundwater on the Lummi Peninsula.  Specifically, the agreement allocated the right to use 120 acre-feet per year of groundwater to the State of Washington, Department of Ecology, and the remainder of the groundwater to the Lummi.  The Lummi gained the exclusive right to regulate the use of groundwater underlying the reservation, and the agreement prohibited groundwater withdrawal unless the Lummi had authorized the withdrawal.

In addition to court settlements, state and federal settlement acts have resolved disputes over groundwater rights.  Many of these settlement acts recognize a tribal reserved right to groundwater.  One such federal settlement act is the Snake River Water Rights Act of 2004.  This act resolved water rights disputes between the Nez Perce Tribe, the State of Idaho, and private water rights holders.  The settlement act clarified water rights in the Snake River Basin in Idaho, and it allocated to the tribe the right to groundwater.  Focusing on the hydrological connection between groundwater and surface water, the settlement quantified the tribe’s right to surface water and stated that the right extends to the groundwater source beneath.

Limitations on Use of Tribal Reserved Rights to Groundwater

Several courts that recognized tribal reserved rights to groundwater placed limitations on the rights.  Federal reservation grants originally derived from the idea that the water is impliedly reserved to the extent that the water is necessary to fulfill the purpose of the reservation.  The Ninth Circuit has broadly defined the purpose of the reservation as it relates to water rights in order to provide a home for native peoples.  Courts that analyzed groundwater in the context of Winters considered whether groundwater was necessary to fulfill the reservation’s purpose.  The reservation grant itself thus set an initial, and broad, limitation on groundwater rights.  Courts have limited tribal reserved rights to groundwater based on quantity, pumping maximum, purposes of groundwater usage, sales outside the reservation, and necessity.

The Nevada Supreme Court limited the quantity of groundwater allocations on the Pyramid Lake Indian Reservation in Pyramid Lake Palute Tribe of Indians v. Ricci.  The court established the limitation on groundwater as the amount of water in the Orr Ditch Decree adjudication.  The court held that while the decree impliedly gave the Pyramid Lake Palute Tribe a right to groundwater, the decree restricted that right to the tribe’s personal yield of water as set forth in the decree.  Because the specified amount of water in the decree represented the tribe’s full adjudication, the tribe had no right to groundwater in excess of that amount.

In a 1990 settlement agreement between Idaho and the Shoshone-Bannock Tribes, the tribes discussed the right to water under, arising on, flowing across, adjacent to, or otherwise appurtenant to the reservation.  The agreement limited the tribes’ respective rights in terms of necessity: the agreement restricted the tribes’ use of groundwater to instances where their diverted water from other sources was insufficient.  If the one of the tribes diverted less than the agreed-upon quantity, the tribe had the exclusive right to divert groundwater.

A settlement contract between the Jicarilla Apache Tribe and the United States limited groundwater rights with regard to the effect on the surface water sources.  The contract addressed water rights in the Navajo River, Navajo Reservoir, and San Juan-Chama Project.  Under the contract, the tribe had the express right to adjudicate water rights from either the groundwater or surface water.  The tribe gained the right to lease its water off-reservation, but the contract prohibited the tribe from withdrawing groundwater if doing so would adversely impact the surface water source.  As an additional measure relating to the protection of surface water sources, the contract required the tribe to implement a conservation program.

Previous Cases and Potential Guidance to Examining Agua Caliente Defendants’ Arguments

The Agua Caliente court distinguished the water at issue from other cases recognizing tribal reserved right to groundwater.  Many prior cases focused on the hydrological connection between surface water and groundwater to extend Winters to groundwater.  However, Agua Caliente did not involve hydrologically connected groundwater and surface water.  The defendants in Agua Caliente argued that the tribe did not need groundwater to fulfill its reservation’s purpose, so Winters did not apply.  Various courts have previously considered this argument, but each court implemented a somewhat different solution.  Nonetheless, reference to the history and trends of previous cases may help define and clarify the scope of the reserved rights doctrine in relation to the Agua Caliente groundwater.

Daphne Hamilton, J.D., University of Denver College of Law, 2016

Image: Cahuilla Tewanet Vista Point, Santa Rosa / San Jacinto Mountains, California.  Flickr user Tony Webster, Creative Commons.

 

Sources:

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

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

Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981).

Confederated Salish & Kootenai Tribes v. Stults, 59 P.3d 1093 (Mont. 2002).

In re Gila River Sys. & Source, 989 P.2d 739 (Ariz. 1999).

In re Snake River Basin Water System, 764 P.2d 78, 81 (Idaho 1988), agreement ratified by Snake River Water Rights Act of 204, Pub. L. No. 108-447, 118 Stat. 2809.

New Mexico ex rel. Reynolds v. Aamodt, 618 F.Supp. 993, 1010 (D.N.M. 1985).

Pyramid Lake Palute Tribe of Indians v. Ricci, 245 P.3d 1145 (Nev. 2010).

United States v. Orr Water Ditch Co, 600 F.3d 1152 (9th. Cir. 2010).

United States ex rel. Lummi Indian Nation v. Washington, Dep’t of Ecology, (W.D. Wash. Nov. 20, 2007) (approving settlement agreement).

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

Settlement Agreement: Contract between the US and the Jicarilla Apache Tribe (Dec. 8, 1992).

Royster, Judith V., 47 Idaho L. Rev. 255, Conjunctive Management of Reservation Water Resources: Legal Issues Facing Indian Tribes (2011).

The 1990 Fort Hall Indian Water Rights Agreement (Jul. 10, 1990).

 


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.