Protecting Tribal Uses: Cultural Activities and Subsistence Fishing to Become Beneficial Water Uses

California Moves to Develop Beneficial Use Definition for Tribal Cultural Uses and Subsistence Fishing

By: Gabriela Rios | Law Clerk | gabriela.rios@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Yesterday, on February 16, the State Water Resources Control Board (SWRCB) passed a resolution that will direct staff to develop beneficial use definitions pertaining to tribal traditional, cultural, and subsistence fishing as part of a statewide water quality control planning process. More information, including the resolution the SWRCB is considering is available here and here.

The process of including tribal cultural uses and subsistence fishing in the list of beneficial uses began many years ago and was one of the goals of the 2013 California Tribal Water Summit. The inclusion of tribal cultural uses and subsistence fishing in the list of beneficial uses is an important step to protecting tribal resources and the cultural practices associated with those resources. However, as the SWRCB emphasized, the passage of the resolution is just the first step. The beneficial use definition would still need to be adopted into the statewide plan and actual implementation would require regional water boards to amend their water quality control plans to include the new designations, if applicable. A timeline for Beneficial Use Definition Development is available here.

In the realm of water quality, the importance of beneficial uses cannot be overstated. Beneficial Uses are the kinds of activities that a waterbody can be used for and they “form the cornerstone of water quality protection under regional Basin Plans. Once they are designated, water quality objectives can be established and water quality programs can be implanted to protect these uses.” Water Quality Control Plan Los Angeles Region at 2-1. The State Water Board established a uniform list of beneficial uses in 1972 (amended in 1996) and it did not include tribal cultural uses of subsistence fishing. Of the nine Regional Boards in California, only the North Coast Regional Water Board’s basin plan explicitly lists a beneficial use that pertains to the cultural and traditional rights of indigenous people. Its beneficial use definition, which was the basis for the SWRCB’s recommended definition reads: “Uses of water that support the cultural and/or traditional rights of indigenous people such as subsistence fishing and shellfish gathering, basket weaving and jewelry material collection, navigation to traditional ceremonial locations, and ceremonial uses.

There are also three tribal water quality plans in California that have definitions for tribal cultural uses, the Big Pine Paiute Tribe of Owens Valley Plan has, I believe, the broadest and most fitting definition: “Cultural Beneficial uses of waters that support the past and present indigenous culture and way of life for the Big Pine Paiute Tribe.” This definition recognizes that the tribe does not have a static culture, but a vibrant, dynamic culture that is ever changing, yet grounded in something uniquely indigenous and central to the Paiute Band.

It is important that tribes and tribal individuals be actively involved in order to ensure that the definition used will protect tribal resources and individuals as they utilize those resources. Although there may be similarities among the indigenous peoples in California, it is important that the definition used is broad enough to capture the unique aspects of each of the 100 plus tribes and the resources their cultures depend on.

Gabriela is a citizen of the Cahuilla Band of Indians and currently clerking for Procopio. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and was recently admitted to the State Bar of California.

Ted Griswold

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