Context & Definitions
Water as a Property Right
Water rights are a form of property. Water rights under state law in California are usufructuary rights2, meaning that the owner has a right to use that water, but does not own the water itself, and the right is not an unlimited right.3 The California Constitution requires all use of water to be “reasonable and beneficial.”4 State law differentiates between different types of water (e.g., surface water running through one’s property, percolating groundwater appurtenant to one’s property, appropriated surface water, and underground streams and rivers).
However, for tribes and individual Native Americans with an allotment, federal law determines such tribes and individuals’ water rights. Such water rights are associated with Indian trust lands and referred to as Winters (a.k.a. “reserved”) water rights. A Winters or “reserved” water right is the right to enough water to fulfill the purpose for which the federal government reserved the land. For this reason, such rights are also known as “implied” water rights. Winters rights are property rights; in the context of Winters rights appurtenant to Indian trust land, water rights are property rights that the federal government has a trust responsibility to those interests as a fiduciary.5 Unlike appropriative rights under state law, Winters rights do not require a showing of beneficial use and are not lost through non-use.
Water as a Cultural Resource
While water is a property right, it is also a cultural resource. In 2018, California implemented a process of officially recognizing the cultural aspects of water as an official Tribal Beneficial Use.6 A key strategic consideration for tribes is working with California Regional Water Boards to recognize specific cultural practices and resources within a watershed7.
Water as an Assertion of Sovereignty
Water is a critical resource necessary for economic development and the continuation of traditional ways of life; protecting water is a core responsibility of a sovereign government. Tribal assertion of sovereignty over water is necessary to continue protecting tribal sovereignty at large.
Definitions
| Term | Definition |
| Allotment | “Allotment is a term of art in Indian law… [i]t means a selection of specific land awarded to an individual allottee from a common holding.” Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 142, 92 S. Ct. 1456, 1466, 31 L. Ed. 2d 741 (1972) |
| Appropriative Rights | “An appropriative right is the right to take either surface or subsurface waters in excess of waters reasonably and beneficially used by riparian or overlying owners for use with nonriparian or nonoverlying land or for the public water supply. It is established pursuant to statute by the actual taking of water for nonriparian or nonoverlying uses.” 3 Cal. Real Est. § 9:29 (4th ed.) |
| Assignment | “The legal concept of assignment refers to the transferability of all types of property…” Amalgamated Transit Union, Loc. 1756, AFL-CIO v. Superior Ct., 46 Cal. 4th 993, 1001 (2009). |
| Groundwater Adjudication | “When water users within a basin are in dispute over legal rights to the water, a court can issue a ruling known as an adjudication. Adjudications can cover an entire basin, a portion of a basin, or a group of basins and all non-basin locations between. The court decree will define the area of adjudication. The court typically appoints a watermaster to administer the court’s decree.” Accessed at California Department of Water Resources, Adjudicated Areas, on May 22, 2023. |
| Groundwater | There is no agreed upon definition of groundwater, but the United States Geological Survey defines it as “Groundwater is water that exists underground in saturated zones beneath the land surface. The upper surface of the saturated zone is called the water table.” USGS, “What is Groundwater” accessed at What is groundwater? | U.S. Geological Survey (usgs.gov) on May 19, 2023. |
| Indian Country | “Except as otherwise provided in sections 1154 and 1156 of this title, the term “Indian country”, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.” 18 USC 1151. Accordingly, “Indian Country” includes all trust lands, as well as any fee land or rights of way inside the bounds of any Indian reservation. |
| Overlying Right | “An overlying water right is analogous to the rights of a riparian owner in a stream. It is the right to extract and use water underneath the land that flows beneath, or percolates to, the surface for use on the surface of the land. The right is based on ownership of the land and is appurtenant to the land.” 3 Cal. Real Est. § 9:29 (4th ed.) |
| Priority Date | ‘The rights of appropriators among themselves, unlike those of riparian or overlying owners, are subject to a rule of priority, and “senior appropriators—those who acquired their rights first in time—are entitled to satisfy their reasonable needs, up to their full appropriation, before more junior appropriators become entitled to any water.”’ 3 Cal. Real Est. § 9:32 (4th ed.) |
| Public Domain Allotment | Public Domain Allotments (PDAs) “are tracts of land reserved from federally controlled territory in the United States held as trust or restricted fee parcels by Native American persons who do not live on reservations.” Rubin, Erin The Yale Law Journal Forum, “Water Rights of Public Domain Allotments,” February 17, 2023. |
| Riparian Rights | “A riparian right is the right of a landowner to take water from a stream that abuts his or her land for use on the riparian land. The riparian right must be exercised for use in relation to the riparian land, and not for export to other lands. Riparian rights only arise from a natural watercourse and not an artificial channel or body of water, such as an artificial, man-made lake or pond.” 3 Cal. Real Est. § 9:29 (4th ed.) |
| Safe Yield | Safe yield is generally considered equal to the average replenishment rate of the aquifer from natural and artificial recharge. Evaporation, transpiration and basin outflow are also factored in to replenishment rates. Accessed at Safe Yield – Water Education Foundation on May 22, 2023 |
| Surface Water | “Water diffused over the surface of land, or contained in depressions therein, and resulting from rain, snow, or which rises to the surface in springs, is known as ‘surface water.’”
Contra Costa Cnty. v. Pinole Point Properties, LLC, 235 Cal. App. 4th 914, 928, 186 Cal. Rptr. 3d 109, 119 (2015) |
| Sustainable Yield | “Sustainable yield” means the maximum quantity of water, calculated over a base period representative of long-term conditions in the basin and including any temporary surplus, that can be withdrawn annually from a groundwater supply without causing an undesirable result. Cal. Water Code § 10721(w) (West). |
| Tribal Beneficial Use | Tribal Beneficial Uses are a group of beneficial uses that can help protect activities specific to Native American cultures and their uses of California waters, including the consumption of non-commercial fish or shellfish. Tribal Beneficial Uses can also be referred to as cultural uses of water. Accessed at Tribal Beneficial Uses – Cultural Uses of Water | California State Water Resources Control Board on May 22, 2023. |
| Trust Land | “[A]ny lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.” 25 U.S.C.A. § 2703(4)(B) (West) |
Methodology
Due to the unique nature of California water law and the increased complexity of tribal water rights within that California system, a standard methodology was used for this report. From that methodology, a framework for reviewing matters related to Winters rights and assessing tribal and public domain allotment owner water interests in California. This methodology and framework combine for a holistic approach to understanding and strategizing around California tribal water opportunities
This study began with a review of the pervious study drafted in 1991. Topic areas were then assigned to various contributors to update the 1991 study and add topics and details that are relevant to current issues in California water and federal Indian Law.
Each section’s research utilized legal research software to update the law, regulations, and secondary sources. California Indian Legal Services in partnership with several individuals and organizations including Carbon A List, Owens Valley Indian Water Commission, UCLA, Stanford University, and the Bureau of Indian Affairs, provided research, drafting, and review contributions.
While there are a multitude of methods and issues around water, tribes, and California, this team focused efforts on Winters rights and the strategic importance of water rights to tribes, while briefly addressing adjacent issues.
Assumptions
The core assumption of this work was that the legal landscape surrounding Winters rights in California changed significantly since the previous study. This assumption was largely validated as the team tackled challenging issues including new California groundwater regulations and recent caselaw.
