Jeff Grubbe, the chairman of the Agua Caliente Band of Cahuilla Indians, speaks at the 1st annual Kewet Native American Learning Day and Market at Palm Springs High School in Palm Springs, California, on November 18, 2017. Photo: City of Palm Springs

Environment | Law | National

Agua Caliente Band clears big hurdle in battle to protect groundwater in California

Monday, November 27, 2017

In a big win for the Agua Caliente Band of Cahuilla Indians, the nation's highest court has rejected a challenge to the tribe's historic water rights ruling.

Without comment, the U.S. Supreme Court on Monday denied petitions in Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians and Desert Water Agency v. Agua Caliente Band of Cahuilla Indians. The action, which was announced in an order list, solidifies the tribe's right to tap into groundwater on its reservation in southern California.

Yet the saga, in many respects, is just beginning. The federal courts must still determine the exact quantity of the tribe's rights and whether the tribe is entitled to a certain quality of water, issues that will be examined in the next phases of litigation.

Still, the tribe can rest easy knowing that it was able to turn back a challenge that could have put those efforts to an early halt. A slew of state governments and non-Indian interests -- fearful of the precedent in the case -- were hoping the Supreme Court would take notice and curtail ongoing and future claims to water needed for daily life and commerce on reservations.

But with Indian Country at its side, the tribe will be able to capitalize on a decision that resolved a seemingly simple question. Tribes need water -- groundwater as well as surface water -- to survive, the 9th Circuit Court of Appeals ruled in March.

"Everybody knows groundwater is part of the tribal right," Nathan Small, the chairman of the Shoshone-Bannock Tribes, said at the annual convention of the National Congress of American Indians last month.

Indianz.Com SoundCloud: 9th Circuit Court of Appeals Oral Arguments in Agua Caliente Band of Cahuilla v. Coachella Valley Water District October 18, 2016

The Department of Justice intervened on behalf of the tribe during the Obama era. The Trump administration has continued that support, submitting a brief in opposition to the state and non-Indian interests as the petition was considered by the Supreme Court.

"The tribe has used both surface and groundwater on the lands for domestic, agricultural, stock-watering, and other purposes since before the reservation was established," government attorneys wrote in the brief.

Though the tribe already began preparations this summer for the next phases of the case, the presence of the United States sets the stage for potential negotiations in California. Talks could lead to a settlement and open the doors for others to secure their rights.

California is home to more than 100 tribes and the largest Native American population in the nation. Most tribes in the state have not yet quantified their water rights so they have been paying close attention to the dispute.

"The purpose of the Indian reserved rights doctrine is to meet the water needs of the reservation, and that purpose plainly implies sufficient water to meet those needs, including groundwater when necessary," a coalition of California tribes wrote in a brief when the case was still being weighed by the 9th Circuit.

In addition to California, the 9th Circuit covers Alaska, Arizona, Idaho, Nevada, Montana, Oregon and Washington. All are states with a significant number of tribes -- some with water settlements in various stages of development -- so the Agua Caliente ruling is seen as a major advancement towards future agreements.

Water flows through the Coachella Valley in southern California. Photo: Coachella Valley Water District

So far, the Coachella Valley Water District and the Desert Water Agency, the entities being sued by the tribe, have not committed to negotiations. They have defended their handling of the water supply on and near the Agua Caliente Reservation even as they said the tribe is only entitled to surface water on its homelands. The 9th Circuit pointed out that surface water is "minimal or entirely lacking for most of the year" in the region.

“We are disappointed in the decision because we believe the water in this valley is a shared resources that belongs to everyone,” John Powell, Jr., the president of the Coachella district, said in a statement on Monday. “The tribe has always had access to as much water as they requested, but now they have secured a water right that is superior to every other resident and business in the Coachella Valley.”

"This case could completely change water management in our area," said Desert Water President Jim Cioffi. “We will continue to protect the interests of the community through this lawsuit and any efforts to divvy up local groundwater rights.”

The seminal tribal water rights case is Winters v. U.S., which originated in the 9th Circuit. In 1908, the Supreme Court determined that tribes are entitled to sufficient water for their reservations.

The Supreme Court's 1963 ruling in Arizona v. California, another 9th Circuit case, also declared that water is "essential" for life in Indian Country.

9th Circuit Court of Appeals Decision:
Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District (March 7, 2017)