The Role of Native American Tribes in Implementing California’s New Sustainable Groundwater Management Act

By: Walter E. Rusinek | Senior Counsel |
Theodore J. Griswold | Partner |

Responding to continuing drought conditions in California that have led to the increased use of groundwater, the legislature passed and Governor Brown recently signed the “Sustainable Groundwater Management Act” and related provisions (“Act”). The Act is the state’s first serious effort to address on a state-wide basis the problem of groundwater overuse (overdraft).

The Act establishes procedures for addressing overdrafts in identified “high or medium priority” groundwater basins by requiring that, within two years, local agencies in the basin form a local “groundwater sustainability agency” (“Agency”). Within five to seven years, that Agency must prepare and implement a “groundwater sustainability plan” (“Plan”). While the Act allows local control of this process, the State Water Resources Control Board can step in to create a Plan if it is not done locally.

Briefly, the Act authorizes the Agency to require groundwater users in the basin to register their wells, monitor their pumping, and annually report the amount of water pumped. The Plan must provide information on the basin’s groundwater resources, and identify objectives to attain sustainability within 20 years, with milestone objectives to be achieved in five-year increments. The Act also grants Agencies broad authority to limit or curtail groundwater production and other powers to achieve the goals of the Plan.

Many Native American reservations in the state rely on groundwater as a source of water because they were created in areas where surface or imported water is not available. Consequently, many reservations overlie groundwater basins for which Plans will be created. The Act requires that each Agency consider the interests of all beneficial users of groundwater in the basin, including Native American Tribes. (Water Code § 10723.2). At the same time, the Act recognizes Tribal sovereignty, stating that it applies to Tribes and the federal government only “to the extent authorized under federal or tribal law.” (Water Code § 10720.3(b)). So how will it apply to Tribal governments?

The Act encourages Tribes to voluntarily participate in the preparation or administration of a Plan through a “joint powers authority or other agreement with local agencies in the basin.” (Water Code § 10720.3(c)). A participating Tribe can assist with planning, financing, and management under the Plan, and is eligible for “grants and technical assistance” to help the Tribe exercise its inherent regulatory authority to regulate groundwater use. While the Act invites Tribal participation in the Plan process, absent Tribal approval, the requirements of a Plan do not apply to a Tribe’s use of groundwater.

In addition, the Act recognizes that in any judicial adjudication of groundwater rights or in the implementation of a Plan, “federally reserved water rights to groundwater shall be respected in full” and that if there is any conflict “between federal and state law in that adjudication or management, federal law shall prevail.” (Water Code § 10720.3(d)). The Act states that this language is “declaratory of existing law.”

Arguably, this language constitutes the state’s recognition that there are federally reserved rights to groundwater. The “reserved rights” doctrine was created by the United States Supreme Court in Winters v. United States, 207 U.S. 564 (1908), when it held that water needed by the Tribe for irrigation had been reserved by the United States when it created the reservation. In its current lawsuit claiming federally reserved rights to groundwater, the Agua Caliente Band of Cahuilla Indians has argued that the language in the Act means that the issue of whether there are federally reserved rights to groundwater is “beyond dispute.” Whether the trial court will construe the language in the Act that way, or even address that specific argument, remains to be seen. The trial court’s ruling on the issue of whether there are federally reserved rights to groundwater most likely will be appealed.

The Act provides Tribes with the opportunity to participate with their neighbors in addressing the common problem of groundwater depletion. That process may provide a more cost-effective manner of resolving these difficult issues than the expert-laden litigation route. While the Act is the most-important piece of legislation concerning the regulation of groundwater ever enacted in the state, only time will tell how successful the Act will be and whether Tribal participation in the process will be effective in protecting their rights to and ability to use groundwater.

Walter Rusinek is a Senior Counsel with Procopio and a member of the firm’s Native American Practice Group. He participated in the drafting of the language of the Act concerning Native American involvement. He is the lead attorney in opposing the proposed Gregory Canyon Landfill, which would desecrate important Native American sacred sites. His practice has focused on environmental, natural resource, and Native American law in California and Arizona for nearly 25 years.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at and 619.515.3277.

Native American Heritage Month: Celebrate it with The Cherokee Word for Water

By: Haley Buzzard | Guest Contributor
Stephanie Conduff | Law Clerk |
Theodore J. Griswold | Partner |

November is Native American Heritage Month, and this brings to mind a lesson that modern day problems can still be solved through the use of traditional concepts, and strong resolve. This lesson is brought home in The Cherokee Word for Water, a feature-length motion picture that tells the story that led Wilma Pearl Mankiller to become the first modern woman Chief of the Cherokee Nation. Inspired by the true story of the struggle and ultimate success of a rural Cherokee Nation community to bring running water to their families by using the traditional concept of gadugi – working together for the good of the community.

This story has a beginning similar to thousands of Native families during the Relocation Era. Chief Mankiller’s family was relocated from the Cherokee Nation, in Northeastern Oklahoma, to San Francisco as part of the 1950s Indian Relocation Act of 1956 (Public Law 959). This was an effort by the federal government to try to incentivize Native people to move from rural areas and Native communities to highly populated city centers in an effort to assimilate our way of life, culture, language, food sources, families in exchange for employment opportunities. Despite this terrible federal policy failure, she was constantly aware of her Cherokee way of life and other Native people and their heritage. Growing up, she invested her time building a Native community and developing her leadership skills in the Bay Area. In the 1970s she returned to her home in Oklahoma where she learned that there was a tremendous amount of work to do to help her community.

The movie is based on the true story of the Bell Waterline Project. At the time—the 1980s—many of the homes in her rural Cherokee Nation community lacked running water. Wilma Mankiller saw this as untenable, and dedicated herself to change the situation. (There is more community work to be done as we still have Cherokee Nation citizens living without running water in our communities and in other Native communities throughout Indian Country).

For the Bell Waterline Project to be successful it would require unlikely neighbors to join forces and build nearly twenty miles of waterline using a community of volunteers. Imagine a large scale construction project spanning twenty miles using elders, youth, Natives, non-Natives, borrowing used equipment, sandy terrain, rolling hills and unpredictable weather. Engineering and construction companies would balk at the challenge. But Wilma built a community. And the community built the pipeline.

In the process, they inspired the community to trust each other, and reawaken universal indigenous values of reciprocity and interconnectedness. At the service celebrating her life, the program described Chief Mankiller the way we both remember her: She was rare person, who was as comfortable in the White House as she was in a farmhouse. Wilma was not only an author, lecturer and a leader of people but also a mother, a daughter, a wife and neighbor. She was a sister and a friend. She overcame personal and professional challenges with grace the belied the difficulty of the task.

The successful completion of the waterline sparked a movement of similar self-help projects across the Cherokee Nation and in Indian Country that continues to this day. This is the purest form of self-determination. During Native American Heritage Month, we are mindful of those who came before us and created both the legal and physical infrastructure of our community here in the Cherokee Nation. Chief Mankiller wanted to be remembered as the person who helped us restore faith in ourselves [and our ways of life]. For Haley and myself, she did that. Not just in Native American Heritage Month, but each and every day. As Wilma taught us: Every Day is a Good Day.

The Wilma Mankiller Foundation

The Wilma Mankiller Foundation, a fund of Tulsa Community Foundation, seeks to continue Wilma Mankiller’s legacy of social justice and community development in Indian Country. The mission of the Foundation is to support and promote culturally appropriate community and economic development projects in Native communities, to advance educational and women’s leadership opportunities for Native people. Chief Mankiller agreed and summed that up by simply stating public perception drives public policy. Those perceptions caused Chief Mankiller to view the The Cherokee Word For Water as her chosen legacy, not because she wanted a movie about herself, but rather she felt this movie could influence public perception as well as the Native self image. She also wanted people everywhere to be inspired to trust their own thinking to solve community problems together. Any profits from the film will go back to the foundation to support economic development and education throughout Indian Country. The Cherokee Word For Water demonstrates the positive attributes of modern Native communities and provides positive role models for Native youth in the mainstream media.

We encourage you to preorder this film today. It is a way to support Indian Country. It is a great addition to your DVD collection, a gift for a friend or a donation to school or community library. Maybe you could host a Native American Heritage Month watch party with friends? We will be having one…

You can preorder the film here:

Haley Buzzard-Hamilton is a citizen of the Cherokee Nation and Kickapoo Tribe in Kansas. She graduated from DePaul University with a Master of Public Service. She also attended Haskell Indian Nations University. Buzzard worked for the Cherokee Nation government and Cherokee Nation Businesses. She is a passionate and energetic leader dedicated to working with Native people to create change in communities, supporting community relations at the local, state, and federal levels. She is especially thankful for the leadership and mentoring of strong Cherokee women including that of Wilma Mankiller, Sharon Blackfox, Maggie Studi, and Barbara Starr-Scott.

Stephanie Conduff is a citizen of the Cherokee Nation. She graduated from the University of Oklahoma College of Law. She is especially thankful for the leadership and mentoring of strong Cherokee women including that of Wilma Mankiller, Gina Olaya, Paula Ragsdale, Cara Cowan Watts, and Melanie Knight. Women in leadership roles can help restore balance and wholeness to our communities.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at and 619.515.3277.

Aviation in Indian County: Seminole Tribe of Florida

By: Sandra L. Shippey | Partner |
Theodore J. Griswold | Partner |
Stephanie Conduff | Law Clerk |

Seminole Tribe of Florida Chairman James E. Billie, an ex-military and licensed pilot, used to land his plane on a desolate reservation road. His airplane allowed him to travel independently to and from the Seminole Tribe of Florida reservation as he worked to develop Tribal businesses. My, how things have changed. Today that road has become the Big Cypress Airfield. Privately owned by the Seminole Tribe of Florida, the airfield employs 18 staff members and is buzzing with 3 winged aircraft – including a 13 passenger Gulfstream IV – and 4 helicopters, and it is growing. It seems Chairman Billie was onto something.

The Seminole Tribe has begun to realize the business and governmental benefits of having its own airfield on its Reservation. Other tribes may want to take notice.

The operational costs of the Big Cypress Airfield are limited and the benefits substantial. The Tribal airfield uses existing reservation land, so there was no acquisition cost and no lease. Likewise, state property taxes on the airfield itself are not an issue and there are no state property or use taxes on the aircraft. Oh, and parking is free.

Many reservations struggle with a geographic challenge of isolation from business centers. The Seminole Tribe has mitigated this issue by making travel more efficient and flexible. The Big Cypress Airfield allows Tribal business leaders to use the Seminole Tribe’s own aircraft to visit its off-reservation business operations, conduct business, and attend intergovernmental meetings without being tied to a commercial airline schedule. This becomes important when Tribal executives are running both a business empire and a Nation. The Seminole Tribe has more than 4,000 citizens and booming businesses including the Hard Rock International purchased in 2007 from the Britain-based company Rank Group plc for an estimated $965 million. The unprecedented deal now includes 191 venues in 59 countries, including 145 Hard Rock Cafes, 21 Hard Rock Hotels and 10 casinos.

In addition, the Seminole Tribal government generates billions of dollars in economic impact in Florida and elsewhere through vendor contracts and indirect spending spun-off from its gaming and governmental operations, as well as its other business interests. For this tribal government, the efficiency of using its Aviation Department to fly Tribal executives to and from the Reservation is a valuable business tool for saving time and increasing revenues.

Tribal governmental services can be more efficient and immediate with the availability of aircraft. When West Nile virus was detected at the Brighton Reservation, the Seminole Tribe’s Aviation Department was able to immediately ramp up mosquito control with the Bell 206B helicopter through aerial applications of mosquito control throughout the reservation. Tribal citizens were quickly protected from encephalitis and other mosquito-borne illnesses.

The Big Cypress Airfield has long been used as a home base for fire suppression efforts. The Seminole Tribe, in conjunction with the Bureau of Indian Affairs, has created a fire suppression and response program that extends beyond the reservation jurisdictional boundaries. By servicing the surrounding community, the Tribe ensures the safety of both Native and non-Native communities.

The Aviation Department also supports the Seminole Police Department in providing aerial security on and off the reservation. During the Super Bowl activities at the Seminole Hard Rock Hotel, the Department provided aerial support for security and traffic control.

The Tribe also holds open houses at Big Cypress Airfield to inspire and attract Native youth to careers in aviation.

Tribal airfields and aircraft are not reserved for the largest of Tribal Nations. The benefits of a tribal airfield along with the right aircraft can assist even moderate sized reservations shorten the distance from the reservations to economic centers and the use of aircraft on and around the reservations can better serve tribal citizens. Does your reservation have a dusty road waiting for a new use?

A special thanks to Clinton A. El-Ramey, Director of the Aviation Department, at the Seminole Tribe of Florida, for his public service to Indian Country and the United States.

Sandy Shippey is co-chair of Procopio’s Aviation Practice Group and a member of the Native American Practice Group.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at and 619.515.3277.