Tribal Rights to Groundwater: The Case of Agua Caliente

By Zablan, Zeslie | Environmental Law, Summer 2018 | Go to article overview

Tribal Rights to Groundwater: The Case of Agua Caliente


Zablan, Zeslie, Environmental Law


 I.  INTRODUCTION                                           618 II.  OVERVIEW OF THE WINTERS DOCTRINE                       621      A. Winters v. United States                            621      B. Arizona v. California                               623      C. Cappaert v. United States                           624      D. United States v. New Mexico                         626      E. Summary of Supreme Court Precedent.                 628 III. STATE SUPREME COURTS APPLYING THE WINTERS DOCTRINE TO      GROUNDWATER                                            629  IV. APPLYING THE WINTERS DOCTRINE TO GROUNDWATER IN AGUA      CALIENTE                                               630      A. The District Court's Opinion                        630      B. The Ninth Circuit's Opinion                         633      C. Discussion                                          635   V. CONCLUSION                                             639 

I. INTRODUCTION

More than 100 years ago, the United States Supreme Court established what has come to be known as the Winters doctrine, named for the seminal case in which the Supreme Court ruled that when the United States created a federal reservation of land for an Indian tribe, it impliedly reserved the amount of water necessary to fulfill the purpose of the reservation. (1) Over the past century, the Supreme Court has continually affirmed this enduring federal reserved rights doctrine, extending it to other types of federal reservations, including national monuments and national forests. (2) One California tribe's push for recognition of its right to sufficient water for its reservation lands under this doctrine has raised important issues that have yet to be resolved definitively concerning the treatment of both groundwater and water quality under Winters.

The Agua Caliente Band of Cahuilla Indians (the Tribe or Agua Caliente) have lived in the Coachella Valley since long before California became a state in 1850. (3) President Ulysses S. Grant established the Tribe's reservation by executive order in 1876, and President Rutherford B. Hayes further expanded the reservation by a second executive order issued in 1877. (4) The language of the executive orders and the government reports that preceded them indicate that in establishing the reservation, the United States sought to secure the Tribe "permanent homes, with land and water enough."" But the Coachella Valley is an arid desert, with limited surface water resources and little rainfall, making access to sufficient water a critical issue for everyone in the region. (6)

The main source of water in the region is the Coachella Valley Groundwater Basin. (7) This basin completely underlies the Tribe's reservation. (8) The groundwater basin supplies 400,000 people living in nine cities in the area and 66,000 acres of farmland. (9) As a result of such high demand, the aquifer has been in a state of overdraft for decades. (10) The Coachella Valley Water District and the Desert Water Agency (collectively, the "water agencies") rely heavily on this aquifer to supply their customers and have attempted to resolve the problem by recharging the aquifer using water imported from the California Water Project and the Colorado River. (11) Following this decision, a water quality study conducted by the U.S. Geological Survey in 2013 found higher levels of contaminants in Coachella Valley aquifers compared to the rest of California. (12) Because the inferior-quality imported water was not pre-treated, the quality of the natural groundwater has degraded. (13)

"Water, including groundwater, has always been critical to Agua Caliente ... the ancestral Cahuilla people managed water scarcity by developing naturally occurring springs and digging walk-in wells throughout the modern day Coachella Valley." (14) Today, the Tribe is a customer serviced by the water agencies and depends on groundwater supplied by the water agencies to meet its water needs. …

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