Indian Water Rights still unresolved in federal courts

This is the fifth in a series of articles exploring a water rights case (Fallbrook Utilities v. United States) involving the Santa Margarita Watershed now before the 9th U.S. District Court. The case is affecting development in the Anza Aguanga valleys. There may be more to follow in future issues of the Anza Outlook.

The latest telephonic settlement hearing between attorneys representing the Ramona and Cahuilla Indian tribes and non-reservation residents in the Anza and Aguanga Valley Aug. 17 with a 9th District U.S. Court Magistrate and Water Master reportedly brought no further progress deciding how much ground water each party is entitled from the Santa Margarita Watershed.

The final decision by the court will determine if local developers can open or install community water systems needed for commercial and new community housing developments that would bring better economic development jobs to the area. The case has been before the federal court since 1968 with no resolution in sight.

A federal court case, Winters vs. United States decided Jan. 6, 1908, is having its effect on a similar case Fallbrook vs. United States concerning the water ownership rights in the Santa Margarita Watershed that begins in the Anza Valley winding its way westward through Temecula, Murrieta and Fallbrook to Camp Pendleton. The case was supposed to be settled in 1968 but the court has yet to decide just how much water from the watershed belongs to the Indians living on the reservations and the non-reservation residents in the western end of the watershed.

The Winters vs. United States case made it clear that Indian rights to water sources on their reservations was exclusively theirs. Still, the ruling was basically ignored while more and more non reservation settlers in the western states moved near other Indian reservation lands and began using the water from the reservations. Then in 1931 California came into conflict with Arizona over Colorado River water use. Arizona feared California would siphon off much of the rivers water above Arizona jeopardizing its growing agricultural and domestic needs. The dispute ended up in federal court.

Arizona vs. California

The Arizona vs. California ended up with a set of 11 different cases before the U.S. Supreme Court. The cases took place between 1931 and 2006. The initial case was to determine how much water from the Colorado River was Arizona entitled too. Other western states became involved in the debate over the river water and the United States government itself, who was in charge of five Indian reservations along the river. The Supreme Court then was handed the case(s).

The situation has a similarity to the Fallbrook Utilities vs. United States case as more and more principles including the Ramona, Cahuilla and Pechanga Indians came into the picture wanting to know how much water they had the right too from the Santa Margarita watershed.

The court found in the cases that the American Indian Reservations do have reserved water rights equal to the amount of water needed on the reservation to sufficiently irrigate all the irrigable reservation acreage, but it still remained the question of just how to decide what amount of water was needed to sufficiently irrigate on the acreage. William Canby, “American Indian Law.”

Arizona vs. San Carlos Apache Tribe of Arizona

This case dealt with some of the Indian tribes asserting their water rights should be adjudicated by the federal courts. The court in this case ruled that any federal legislation put on state court jurisdiction over Indian water rights was removed in McCarran Amendment. This amendment allowed the state courts jurisdiction to determine Indian water rights. Each of cases involved was later reversed and left to be reviewed later. Another delay in the Indian water rights issue.

Nevada vs. United States

This case involved water rights along the Truckee River. The defendants were non-reservation residents verses the plaintiff, the United States. It reached the Supreme Court. The residents argued the American Indian tribes were not parties to the original cause of action between the United States and non-American Indian users of th4e water. The court ruled that the Indians did have water rights to the river and were allowed to use the water in the Truckee River.

United States vs. New Mexico

Here the United States claimed to have reserved the use of the water out of the Rio Mimbres stream only where it was necessary to preserve the environment and wildlife. Here the court ruled that United States did not have the exclusive right to the Rio Mimbres stream for recreational purposes. Riverside County administers a wildlife and endangered species conservation area in the Santa Margarita watershed near Vail Lake.

Colorado River Water Conservation District. vs. United States

This Supreme Court case simply resulted in an abstention doctrine that helped prevent duplication between state and federal courts.

Cappaert vs. United States

This case involved a rare species of desert fish located in the Devil’s Hole cavern in Nevada. Devils Hole became a National Monument in 1968. Cappaerts began using water from the Devil’s Hole cavern thus lowering the water level and endangering the protected fish living in the cavern. The court ruled that the Cappaerts would be allowed limited water to pump out from the cavern assuring is the prolonged life of the fish. It found that the president had named Devil’s Hole a national monument and will always have the right to control the unappropriated water in the cavern.

United States vs. Powers

This case involved the water rights that went along with the sale of Indian reservation land allotments to non-tribal members. The non-tribal land owners argued the Indians by selling the land also sold proportion of water under or on that land and that proportion water from the water source would be theirs in perpetuity. The court agreed, the proportion of water allotment sold under that land would be owned by the new landowners and could be resold.

The disputes over Indian water rights and their right to use water on their reservations to keep them self-sustainable continues with not only cases involving Indians living on reservations a non-Indians, but even disputes between the different Indian tribes using the same water sources.

A new issue is also appearing in California. That issue involves Indian rights to store water in underground aquifers and the impact of continuing drought conditions.

This issue remains a serious problem to the future economic development of the Anza Aguanga Valley with non-reservation landowners and developers who have been unsuccessful in securing state and county permits to drill or open water wells on their land that would be used for community water systems for planned housing and commercial developments. There is a threat that this issue, unless resolved by the 9th District U.S. Court in San Diego, might go on forever.

Here is what Carl Artman, who served as the 10th Assistant Secretary-Indian Affairs at the U.S. Department of the Interior has said. “The hard reality is that yearslong litigation over Indian water rights works to no party’s benefit, exacts enormous financial costs and creates further obstacles to long-range economic planning and development.” March 18, 2008.

Artman has served as chief counsel to his own Oneida Nation. He is currently on the Earth & Water Group’s advisory board as of Feb. 25, 2016.

Editor’s note; References to some of these cases can be found in LexisNexis information services and by searching U.S. Supreme Court water rights cases.

One Response to "Indian Water Rights still unresolved in federal courts"

  1. John Parker   April 12, 2017 at 6:32 pm

    Each state has different laws pertaining to Aboriginal rights of Indians, so what happened in Arizona does not necessarily apply in California, especially Aboriginal rights to land, Minerals or water. This was addressed by federal law for California in 1851, the United States Congress passed the California Land Claims Act of 1851

    Aboriginal title in California refers to the aboriginal title land rights of the indigenous peoples of California. The state is unique in that no Native American tribe in California is the counterparty to a ratified federal treaty. Therefore, all the Indian reservations in the state were created by federal statute or executive order.

    California has experienced less possessory land claim litigation than other states. This is primarily the result of the Land Claims Act of 1851 (following the Treaty of Guadalupe Hidalgo) that required all claims deriving from the Spanish and Mexican governments to be filed within two years. Three U.S. Supreme Court decisions and one Ninth Circuit ruling have held that the Land Claims Act applied to aboriginal title, and thus extinguished all aboriginal title in the state (as no tribes filed claims under the Act). Two Deputy Attorneys General of California have advocated this view.

    Thus, California tribes had to file for aboriginal rights by 1853. Since The Anza tribe was not recognized by Executive order by 1853, they could not claim Aboriginal rights to land, minerals or water.

    See:

    http://www.heinz.cmu.edu/~kclay/papers/cla.pdf

    Reply

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