IN PALM SPRINGS, one of the hottest regions in California, precious groundwater has been depleted for decades to build lush golf courses, swimming pools and tract homes. Now the local American Indian tribe is pressing for a right to help manage that water.
The Agua Caliente Band of Cahuilla Indians, which owns two casinos in the popular desert tourism region, has been buying water for decades from the two government water agencies that manage local groundwater, the Desert Water Agency and the Coachella Valley Water District.
Now the tribe wants to be able to tap into the aquifer itself and help manage it. At a hearing in October before the Ninth U.S. Circuit Court, the tribe asserted it has a “federally reserved” right to directly access the region’s groundwater, even though it has never done so.
The tribe claims the two water agencies have damaged the aquifer by depleting it for unsustainable development and by bringing in saltier water from the Colorado River to refill it.
The water agencies, in turn, warn ominously that if given a role in managing the groundwater, the tribe could use the water for any purpose it wants, even a water bottling operation, although the tribe has not stated any particular plans for the water.
The case before the federal appeals court could set a national precedent for tribal access to groundwater. Remarkably, no federal court has ever ruled on the issue. To help shed more light on the case, Water Deeply recently spoke with Barton H. “Buzz” Thompson, an expert on water law, a professor of natural resources at Stanford Law School and a senior fellow at the Woods Institute for the Environment.
Water Deeply: Why is this case significant?
Barton H. Thompson: This case is important because it will help clarify what rights, if any, Indian tribes enjoy in groundwater as a matter of federal law.
The federal government has held that Indian tribes enjoy federal rights – what are frequently known as Winters rights – to water for use on their reservations (arising from Winters v. U.S., a 1908 Supreme Court case). The federal government has also held that other federal reservations, like national parks or national forests, also enjoy a similar form of federal reserved water rights.
The Supreme Court has never explicitly addressed the question of whether any of those rights – either Winters rights or other forms of federally reserved water rights – apply to groundwater. And the states and lower courts have taken divergent positions on that question.
Water Deeply: The defendants claim the Agua Caliente tribe might somehow disrupt responsible management of the region’s groundwater. Is there any reason to be concerned about that?
Thompson: I have several thoughts on that. Indian tribes around the United States have frequently managed their water quite well. And if that is a concern, then the answer is for the federal government to ensure they have the resources to manage the groundwater effectively.
Water Deeply: Legally speaking, does it matter if a tribe has never used its groundwater?
Thompson: No. Winters rights, as well as other federally reserved water rights, are not lost by failure to use it. The doctrine of prior appropriation in Western states does have a use-it-or-lose-it provision. But that has never been an element of federally reserved water rights. Indian tribes always have the right to begin using federally reserved water, even if they have never used their water before.
Water Deeply: What was the significance of Winters v. U.S. in 1908?
Thompson: In 1908 the U.S. Supreme Court decided by an 8–1 vote that when the federal government set aside reservations for Native American tribes, the federal government also implicitly reserved sufficient water to meet the needs of those reservations. Those “Winters rights” are superior to any state-recognized water rights that arose subsequent to the creation of the Indian reservation.
The Winters case dealt with the Fort Belknap Reservation in northern Montana. The Indian tribe had decided to begin new agriculture operations – specifically, growing sugar beets. But there were other water users who claimed state water rights and who were senior to the date when the Indian tribe began to develop its new agricultural system. So those water rights holders claimed that as a matter of state law, they enjoyed superior rights to the Indian tribe.
The Supreme Court, however, said that the Indian tribes enjoyed federal rights. And again, those federal rights are superior to any state rights attained subsequent to creation of the reservation. So that permitted the Indian tribe to effectively leapfrog over those state water-right holders who were objecting to the Indian withdrawals from the river.
Water Deeply: It’s interesting that the government, and the Supreme Court, recognized this Indian right to water so early on. Is that because water is essential to life?
Thompson: I think there were two things that strongly motivated the Supreme Court in the Winters case. The first thing was the recognition that a lot of Indian reservations are useless without water. And so if, in fact, Indian tribes want to develop viable economies, they need water to do it.
The second thing that I think motivated them is that federal treaties with Indians are meant to be interpreted in ways which are favorable to the Indian tribes. And if you stop to ask the question, when Indian tribes agreed to give up large territories in favor of the reservation to which they were relegated, is it really reasonable to assume they gave up the water that was necessary to utilize those reservations? If you stop to think about that, you almost inevitably have to conclude that the tribes would not have given up the water necessary to use those reservations.
Water Deeply: Will the change in presidential administration have any influence on this case?
Thompson: I think that it is unlikely to have any bearing on the case. Because the right is the right of the Indian tribe, not the federal government. So the federal government does not have the authority to waive the tribe’s right. And, in fact, the federal government has a fiduciary obligation to represent the tribe and to support the tribe. So if the federal government did not, it could be sued for a violation of its fiduciary obligations.
I think we have very little sense of what positions the Trump administration will take with respect to Native American rights. I could easily imagine the Trump administration could be quite supportive of Native American reservations that are interested in developing their natural resources.
I’m thinking specifically of the Crow Reservation in Montana. The Crow Nation has been very interested in developing its coal resources. It seems unlikely that a Clinton administration would have been particularly receptive to the Crow Nation’s interest in developing its coal, because of concerns about climate change. One can imagine the Trump administration being actively helpful to the Crow Nation.
The other thing I would say is, Native American nations are not monolithic in what they want to do, or in their position on various issues. So again, it’s very difficult to think about how President-elect Trump, who is a New Yorker, may approach various Native American issues. I know he has had experience with Native American nations in connection with gambling casinos. There he probably viewed the Native American nations as competitors. But how he would view a case like this is just, I think, impossible to predict.
Water Deeply: Is there any legal relevance in this case to the conflict over the Dakota Access Pipeline, where the Standing Rock Sioux tribe fears pollution of groundwater?
Thompson: I do not see any connection between the two. In this case, it’s really a question of what type of water rights the tribe enjoys. Whereas in the Dakotas, the question is the right of the tribe to protect sacred lands that are actually off of their reservation but are still central to their culture and their spiritual beliefs.
But I will say, the answer the Ninth Circuit provides in the Agua Caliente case will be directly relevant to other tribes that may want to use groundwater to meet their needs or to protect groundwater resources under their lands. And the case may be indirectly relevant to other federally reserved water rights.
I separate out Indian tribes from other federal lands because courts could well decide that Indian tribes enjoy stronger or broader federally reserved water rights than other forms of federal reservations. That, again, is an open question. The federally reserved water rights, although similar, are really stemming from slightly different legal theories.
Federally reserved water rights for other forms of reservations, like national parks or national forests, arise from the assumption that Congress, when it creates a national park or other form of reservation, must implicitly be also reserving water for those federal lands. You could imagine a court saying the Native American reservations have a stronger form of reserved water right than the federal government enjoys for its own reservations.
Article by: Matt Weiser
Published by: News Deeply, Nov 29 2016
Read original here.