Introduction
The purpose of this Study is to provide a current review of the factual and legal status of water rights possessed by California Indian tribes as well as individual Indians (allottees) with interests in allotted trust lands (allotments). This Study will present a framework for analyzing California Indian water rights and offers suggested strategies for California tribes and allottees on how to protect and secure their rights.
This study builds on the work CILS commenced in 1990 and 1991. Under contract with the Bureau of Indian Affairs (BIA), CILS prepared a final “California Indian Water Rights and Reconnaissance Report” in 1991. The report provided historical information on the majority of federally recognized California tribes at that time, as well as a reconnaissance-level analysis of tribal water rights. The principal author of CILS’ 1991 report was Attorney Margaret B. Crow Rosenfeld. The CILS report was only made available upon request to the Department of Interior. The BIA assumed the responsibility of distributing copies of the report but never made the report public beyond providing copies upon request.
This Study stands on the shoulders of the 1991 report, expanding and deepening the treatment of relevant topics and updating legal authorities. The Study also covers new features of California state law that tribes, including unrecognized tribes, may want to participate in, for example, Tribal Beneficial Uses, Integrated Regional Water Management projects, and the Sustainable Groundwater Management Act. Most importantly, the Study is publicly available, and accessible via a dedicated subdomain of CILS’ website: www.water.calindian.org. The use of a dedicated subdomain allows users to search the content of the Study, and only the Study. CILS’ goal is to keep this resource up to date and current as best we can. Your comments, input and feedback are appreciated and can be submitted to water@calindian.org.
For a variety of reasons, the subject matter of this Study is unique when compared to water regimes in other states. Our research confirmed that in the realm of the legal history of federal-Indian relations in California, the exception is often the rule. The desire to simplify and categorize is thwarted by the unique circumstances of the interaction between the federal government and California Indians. From the repudiation and sealing of the eighteen treaties, to the relatively large number of public domain allotments, to the lingering effects of the termination period, the legal history differs significantly from that which is familiar to practitioners of Indian law in other states. Indian water rights issues cannot be meaningfully analyzed without an understanding of this historical and legal context.
As we prepared this Study, multiple actors within California are in the process of determining what sustainable yields of groundwater will be under the California’s 2014 Sustainable Groundwater Management Act (SGMA). Currently, plans for the majority of California’s groundwater basins have not been finalized which provides tribes an opportunity to participate in the SGMA process.1
The uniqueness of California set it apart from other states and tribes, the legal structure of allocating California water rights utilizes both a prior appropriation system and a system of riparian and correlative rights.2 Additionally, California contains nearly one-fifth of all federally-recognized tribes in the country, and nearly one-third of all federally recognized tribes in the contiguous lower forty-eight states.3 Unlike many Indian reservations in the United States, reservations in California were not created by treaty. Additionally, California’s state government has recently passed laws regulating groundwater4, introduced the concept of Tribal Beneficial Uses into the regulatory regime overseeing water quality, and created systems for integrated water management that can bring together multiple stakeholders, including tribes that are not federally recognized. These differences combine to create complex and challenging questions regarding strategies, best practices, and the legal status of Indian water rights in this state – questions to which there is no single, simple answer.
Purpose
Water is a scarce and sacred resource for many tribal communities. In 2016, the Lakota phrase “Mni Wiconi,” or “Water is life” was heard in many tribal communities as a call to protest the Dakota Access Pipeline on the Standing Rock Sioux Tribe’s reservation in the Dakotas. When looking at this Study, CILS sought to update its original 1991 Reconnaissance Report and make it accessible beyond a legal audience. The purpose of this updated and expanded Study is to create a useful tool for California’s indigenous people. The Study was written so that readers can focus on the sections relevant to them.
During the course of creating both the 1991 report and this Study, CILS compiled a significant amount of historical information that may be useful for assessing and utilizing water rights. CILS hopes to compile that data into an accessible and public-facing database that will supplement the Study and exist as a free tool via this website. In the meantime, CILS will make primary source documents available as capacity permits via hyperlinks in the footnotes.
Currently, CILS is implementing a 2023-2028 Strategic Plan.5 CILS envisions a future where all Native Americans have access to services and resources to thrive. CILS’ mission is to protect and advance Indian rights, Indian self-determination, and tribal nation-building. A primary goal of CILS’ is to meet client needs and provide high-quality, high-impact services at no or low cost. This Study is in line CILS’ Strategic Plan by providing free publicly accessible information to help California Native Americans navigate this complex and increasingly important area of law.
