By: Aaron Fournier | Intern | aaron.fournier@procopio.com
Summer Carmack | Intern | summer.carmack@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com
The Ninth Circuit ruled in favor of Tribes and their treaty and water rights in two separate and significant cases last year and, as expected, both cases were appealed to the U.S. Supreme Court. Last November we posted (see post here) about one of these cases, Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District (849 F.3d 1262 (2017)), in which the Court upheld the Ninth Circuit’s decision by denying certiorari. Earlier this month (on June 11, 2018) the Court affirmed the other Ninth Circuit decision, United States v. Washington (9th Cir. 2017) 853 F.3d 946, with a split 4-4 opinion (see the Court’s opinion here). Both decisions affirm water and treaty rights of tribes and establish tribes as key decision makers in the water use context.
In Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District the Ninth Circuit (and later the Supreme Court, which concurred by declining to hear the case) held that the federal “reserved rights” doctrine for water, as established in Winters v. United States, 207 U.S. 564 (1908), applies to both surface water and groundwater. Agua Caliente also affirms that (1) the application of the “’primary-secondary use’ distinction” from United States v. New Mexico, 438 U.S. 696 (1978) is appropriate when determining “how much water is reserved” and does not infer a deferral to state water law on the part of Congress (849 F.3d 1262, 1268-70 (emphasis in original)); (2) because the Tribe’s water rights are federally-reserved, they cannot be lost through non-use; and (3) the Tribe has reserved water rights if the “water was envisioned as necessary for the reservation’s purpose at the time the reservation was created.” (Id. at 1272). Therefore, because the Agua Caliente reservation was established for “the permanent use and occupancy of the Mission Indians[,]” that purpose could only be fulfilled if the rights to the groundwater underlying the reservation were granted appurtenant to the reservation land. Id. at 1265 (quoting Exec. Order of May 15, 1876).
In United States v. Washington, the Ninth Circuit held that a treaty guaranteeing tribes the continued right to gather fish from rivers was violated by the state’s installation and lack of maintenance of culverts along these rivers. The Tribe argued that the culverts were decreasing the amount of fish in the rivers by impeding the movement of the fish, thereby depriving them of their treaty rights, while the state argued that the treaty did not guarantee there would be fish in the river. The Ninth Circuit held that the Tribe’s belief that an adequate amount of fish would be available to them in the rivers, though not explicit in the treaty, was reasonable and the state violated the treaty by building culverts that prevented the fish from freely moving up and down the river. The Supreme Court let this decision stand through affirmation by an equally divided court.
Both decisions increase the likelihood of tribes being invited to the table when project and land use decisions affecting water are made by state, county, and city governments. The two cases help establish tribes as essential partners for local governments by affirming that tribes have a vested interest in making land use decisions. The Court has implicitly supported tribal water and treaty rights two times this term. This could be the beginning of a new era of federal support for tribal treaty rights, which is something others have noticed (see Culverts Win May Indicate A New Era For Tribal Treaty Rights here). Regardless, these decisions provide notice to state and local governments that tribes should be included in discussions regarding decisions affecting water use both above and below the ground. It will be interesting to follow the next two phases of litigation in the series of three for Agua Caliente, whether the tribe (1) owns the beneficial interest in the groundwater aquifer beneath its reservation; (2) is entitled to water of a certain quality, in addition to quantity; and (3) the quantity of groundwater rights the Tribe is entitled to put to use.
Aaron Fournier is a member of the Chickasaw Nation in Oklahoma, and a rising 3L at the University of Oklahoma’s College of Law. He is a former Udall Foundation Intern, working in the office of the Assistant Secretary for Indian Affairs. Aaron is a recipient of the 2018 Procopio Native American Law Student Internship.
Summer Carmack is a rising 3L at University of Montana’s Alexander Blewett III School of Law, where she is an American Indian Law Certificate student focusing her studies in tribal economic development, sovereignty and natural resources. She is on staff of the Public Land and Resources Law Review. Summer is a recipient of the 2018 Procopio Native American Law Student Internship.
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.
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