Environment | Law | National

Agua Caliente Band seeks support at critical stage in water rights case

Monday, November 2, 2015

A view of the Agua Caliente Reservation in southern California. Photo from Facebook

A major water rights case is attracting attention in Indian Country out of concern that a negative ruling will harm hundreds of tribes.

The Agua Caliente Band of Cahuilla Indians celebrated in March when a federal judge confirmed that the tribe reserved its rights to groundwater on the reservation. But the victory was short-lived because two water agencies in southern California have taken the case to the 9th Circuit Court of Appeals.

The tribe is now seeking support from its brothers and sisters in hopes of helping the court understand why the outcome is so important. With more than 100 tribes in California alone, plus dozens more in Washington, Montana and other western states, a negative ruling could affect pending and future water disputes in a part of the country where the natural resource is so scarce.

"Water is very important to all of us," National Congress of American Indians President Brian Cladoosby, whose own community, the Swinomish Tribe in Washington, could be one of those affected, said at the organization's annual conference in San Diego, California, last month.

Agua Caliente Band Chairman Jeff Grubbe speaks at the National Congress of American Indians annual convention in San Diego, California, on October 22, 2015. Photo by Indianz.Com

Water always has played a significant role in Agua Caliente history and culture, Chairman Jeff Grubbe said at the conference. He urged tribes to sign onto a brief that will be presented to the 9th Circuit as the case proceeds.

"Our ancestors relied on the surface and groundwater to sustain life," said Grubbe, who noted that European settlers named cities in and around the reservation after natural springs and other water landmarks. "My ancestors built vast irrigation ditches to move water in the harsh desert landscape in order to grow crops."

The surface versus groundwater issue is a key component of the appeal to the 9th Circuit. According to the Desert Water Agency and the Coachella Valley Water District, the tribe only secured rights to surface water but not groundwater when president Ulysses S. Grant first created in the reservation in the late 1800s.

Tribal advocates are worried that the distinction -- if accepted by the 9th Circuit -- would seriously erode the U.S. Supreme Court decision in Winters v. US, a case from 1908 that still forms the basis of Indian water rights claims today.

Water flows through the Coachella Valley in southern California. Photo from Coachella Valley Water District / Facebook

"The timing of the Agua Caliente case is really, really important," attorney Amy Cordalis, a member of the Yurok Tribe in California, said during a panel discussion at NCAI. "We're going to have to fight like we always have for every single drop of water."

Loretta Tuell, a member of the Nez Perce Tribe of Idaho, which also falls in the 9th Circuit, agreed. If the Agua Caliente Band survives the appeal and proceeds to a quantification of its groundwater rights, she believes the case could help others in the region.

"It can really build a framework for other tribes to use," said Tuell, a former senior staffer for the Senate Indian Affairs Committee.

The Department of Justice is backing the Agua Caliente Band, a sign of the high stakes in the case. A positive ruling at this stage could lead to a settlement, something that the water agencies have been reluctant to consider, at least in their public statements.

A water tank maintained by the Coachella Valley Water District, one of the defendants in the Agua Caliente Band's water rights case. Photo from Facebook

Since 1978, the United States has reached just 33 water rights settlements with 36 tribes, according to a September 2015 report from the Congressional Research Service. The pace picked up after President Barack Obama took office -- there have been six since 2010 -- but litigation, political issues and funding restrictions can slow down the process.

“We’re working at roughly the rate of one settlement a year," Steve Moore, an attorney with the Native American Rights Fund who has worked on water cases for decades, said at NCAI. “You have to take the long view of this."

Of the 33 settlements, only three have been with California tribes. That leaves potentially more than 100 disputes in the state that could be resolved in or out of court.

"It really is a powerful way for tribes to assert their sovereignty over water," attorney Catherine Munson, who is representing the Agua Caliente Band, said of the water rights settlement process.

The Department of Justice has assigned teams to work on two tribal settlements in California. As of July 2015, there were 19 such teams across the nation, according to the Congressional Research Service. Nearly all of them -- 16 total -- are for tribes in the 9th Circuit.

Turtle Talk has posted briefs from the case Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District.