An Overview of Indian Water Rights in California Part 3: Integrated Regional Water Management (IRWM)

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By Mike Godbe, CILS Bishop Office Directing Attorney

This is the third in a three-part series providing an overview of Indian Water Rights in California. This installment focuses on California’s Integrated Regional Water Management grant-funding system. Part 1 on state water rights and part 2 on federal reserved water rights – or Winters rights – may be found here.

A unique feature of California water law is the collaborative water management process known as Integrated Regional Water Management (IRWM).[1] While IRWM projects are a feature of California law and not necessarily a type of “water right,” the unique process presents special opportunities for both federally recognized as well as unrecognized California tribes.

The key benefit – and goal – of IRWM projects is to incentivize stakeholders, that do not often work together but share regional interests in water, to sit down at the table and collaborate on water projects that qualify for state funding.  The direct benefit is the grant funding of water-related projects that stakeholders can agree upon. However, the substantial indirect benefit of IRWM is the bringing together of diverse regional stakeholders.

Regional water management groups span multiple jurisdictions and distribute decision-making power among multiple stakeholders. These regional IRWM groups may then apply for funding for water management projects, which have historically been funded by voter-approved bond measures.

Examples of water management projects that have been funded through the IRWM process include ecosystem and habitat restoration, invasive species removal, reuse of wastewater, desalination, water use efficiency projects, and repairs and upgrades of water infrastructure, among others.

Tribal Participation in IRWM Projects

Tribal participation in IRWM groups provides a unique opportunity to participate in regional water decisions, allows tribes to ‘get in the room’ and build relationships with representatives from multiple regional agencies.

Both federally recognized and unrecognized tribes can and should participate in their regional IRWM group to increase tribal representation in regional water decisions, assist with obtaining funding for water projects that benefit their communities, and strengthen relationships with regional governments, agencies, and stakeholders. IRWM regulations do not require tribes to be federally recognized, so IRWM is a unique opportunity for unrecognized tribes to have a seat at the table, build relationships, and directly participate in regional decision-making about water management.

Tribes may benefit from IRWM in two primary ways. First, tribes can get involved with and become participating members of their IRWM Regional Water Management Group and then seek grant funding opportunities as a group. Through collaboration and participation in their local IRWM group, tribes can access grant funding as a local project proponent. Second, tribes can also be the grantee on behalf of an IRWM region.

As of this writing, stakeholders have established 48 regional water management groups covering over 87 percent of California and 99% of its population.[2] Tribes that want to participate in the IRWM process should begin by identifying the IRWM Region(s) located in their area by going to the California Department of Water Resources’ Water Management Planning Tool (interactive online map) and checking the box titled “IRWM Regions” under View Layers. Once you have identified your IRWM Region(s), you may contact one of four regional California Department of Water Resources offices (Northern Region: Red Bluff; North Central Region: West Sacramento; South Central Region: Fresno; Southern Region: Glendale).[3]

Tribes may also participate in the IRWM Roundtable of Regions[4] and reach out directly to the California Department of Water Resources’ Tribal Policy Advisor at tribalpolicyadvisor@water.ca.gov.

 

 

[1] https://water.ca.gov/programs/integrated-regional-water-management

[2] California Department of Water Resources IRWM homepage (https://water.ca.gov/Programs/Integrated-Regional-Water-Management).

[3] California Department of Water Resources regional office locations and counties supported can be found at https://water.ca.gov/Work-With-Us/Technical-Assistance

[4]  www.roundtableofregions.org

2021: Changes in DOI Leadership, a Win for Tribal Sovereignty, and More

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By Mark Vezzola, CILS Escondido Office Directing Attorney

As 2021 draws to a close, it is time to look back at the last twelve months. If you work in federal Indian law or care about Indian country, there are a number of developments to reflect on. Some changed the political and legal landscape, and a few were major news stories. Many were positive for those concerned about tribal sovereignty.

The U.S. Department of Interior (DOI) has a new leader who is already tackling often overlooked issues affecting Indian country. Deb Haaland, a former congresswoman from New Mexico and an enrolled member of Laguna Pueblo, became the first Native American Secretary of the Interior (which includes the Bureau of Indian Affairs) in March and the first-ever Native American Secretary in any presidential cabinet. Since taking office, Haaland has prioritized investigating murdered and missing indigenous women and examining abuse claims in now defunct federally-funded boarding schools.

More recently but less publicized, Charles “Chuck” Sams III became the first Native American Director of the National Park Service (also part of DOI) on November 19 with unanimous Senate support. Sams is an enrolled member of the Confederated Tribes of the Umatilla Indian Reservation with connections to the Cayuse, Walla Walla, Yankton Sioux, and Cocopah people. Sams previously served in the U.S. Navy as an intelligence specialist with experience in natural resource and conservation management. President Biden’s appointments are significant, considering Native Americans now hold two high offices in a federal agency once synonymous with assimilation.

Speaking of DOI,  President Biden restored over 1 million acres to Bear’s Ears National Monument in October, just four years after President Donald Trump drastically reduced the sacred, culturally rich site by a whopping 85 percent. Trump’s 2017 proclamation, praised by local landowners and oil companies and criticized by Indian country, met with lawsuits over whether a president possesses the power to reduce the size of a national monument. Bear’s Ears, which is sacred to the Hopi Tribe, the Navajo Nation, the Ute Indian Tribe of the Uintah and Ouray Reservation, the Ute Mountain Ute Tribe, and the Pueblo of Zuni, all of whom have ancestral ties to the region, remains a lightning rod for the national debate over presidential authority.

What kind of year-in-review would this be without a few major court decisions? Last term, the U.S. Supreme Court issued a favorable ruling for Indian country in a significant case about tribal jurisdiction. The conservative majority court unanimously held in United States v. Cooley, 593 U.S. ___ (2021) that tribal governments possess the power to temporarily stop, and if necessary, search non-Indians traveling on public rights-of-way through reservations for suspected violations of federal and/or state law. The holding confirmed what many tribal attorneys already believed and reinforced the idea that tribes require such power to protect their communities.

The outlook for Indian law in 2022 is less certain. In April, the Fifth Circuit Court of Appeal issued a 325- page ruling in Brackeen v. Haaland, 994 F.3d 249, holding certain parts of the federal Indian Child Welfare Act (ICWA) unconstitutional while keeping other parts intact. While the Fifth Circuit’s decision has no direct bearing in California, the showdown between pro-ICWA tribes and anti-ICWA states and non-Indians appears destined for the U.S. Supreme Court, which could issue a ruling with long-lasting and wide-ranging impacts on tribes. The Native American Rights Fund has already mobilized tribes to sign an amicus brief framing the history and purpose of ICWA for the justices. Stay tuned for more developments.

On a positive note, 2021 brought much new talent and experience to each of CILS’s four offices, enabling us to serve more individuals, tribes, and organizations in 2022.

Respect for California Tribal Court Orders and Avenues for Tribes to Purchase Land

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By Kia Murdoch, CILS Sacramento Office Staff Attorney

CILS has been tracking bills in the California legislature that are relevant to our community. In July 2021, two bills passed that are exciting steps forwards for California tribes:

AB 627

Tribal Courts in California decide various cases, including family law cases such as dissolution of marriage, and issue orders regarding child support, spousal support, and the division of assets and benefits. Specifically, a Tribal Court may order the division of retirement benefits and other deferred compensation benefits. However, before the passage of AB 627, there was no federal or state law requiring a state court to recognize and enforce the Tribal Court on the division of these orders. Additionally, employers were not required to abide by a Tribal Court order regarding the division of retirement benefits unless a state court granted recognition and enforcement to the Tribal Court order. This bill created several problems for tribal members who chose to file their divorce in their Tribal Court: (1) the process to petition the state court to request recognition and enforcement of such a Tribal Court order is expensive and often takes months to resolve; and (2) state courts could decide not to recognize the Tribal Court order, forcing the parties to have to file a new divorce petition in state court to address the limited issue of dividing retirement or deferred compensation benefits.

AB 627, signed into law on July 9, 2021, established procedures for California courts to recognize Tribal Court family law orders involving the division of retirement and other compensation benefits. This means that the process to have a Tribal Court order regarding the division of benefits recognized in state court will be much simpler, more efficient, and less expensive.  This bill significantly reduces the burden on tribal members who need to enforce a Tribal Court order regarding the division of retirement benefits. It is also an important step in further validating the role of Tribal Courts in resolving family law issues for their members.

Now that AB 627 is signed into law, the Judicial Council of California will be creating state court forms that tribal parties can fill out and jointly file to obtain recognition of their Tribal Court family law order by a state court.

AB 1180

Before the passage of AB 1180, any local agency able to acquire and hold land (such as cities, counties, housing authorities, etc.) was able to transfer anything deemed “exempt surplus land” to another local, state, or federal agency. AB 1180 added federally recognized Indian tribes to the definition of agencies who may purchase “exempt surplus land.”

This bill is a major step for federally recognized California tribes, providing a meaningful avenue for acquiring lost ancestral territory. Local agencies must take inventory once a year of any land it holds in surplus. They are encouraged by law to dispose of surplus land by making it available for public entities to purchase through specific procedures outlined in the Surplus Land Act. However, local agencies can also designate land as “Exempt Surplus Land,” which can be bought by a small list of local, state, or federal agencies without going through the purchasing procedures under the Surplus Land Act.

Adding federally recognized tribes to the list of agencies who may purchase “Exempt Surplus Land,” AB 1180 has made it significantly easier for Tribes to buy land from local agencies. Thanks to the efforts of Tule River Tribe, the primary sponsor, and source for AB 1180, the bill was signed into law on July 9, 2021.

Other Bills We Are Watching

The following bills are still in the Legislature, but if passed, will affect California Tribes:

  • AB 516: Proposes excused absences for students to attend cultural ceremonies or events.
  • AB 798: Adds federally recognized Indian tribes to the list of public agencies that own and operate ambulances, allowing tribes to certify and license their ambulances and ambulance drivers. Under this law, tribal ambulances and drivers will no longer be subject to inspection and approval by California Highway Patrol or treated as privately-owned ambulances.
  • AB 873: Eliminates the tribe’s share of costs related to agreements between CDSS & tribal child welfare services, making agreements that include access to federal funding (such as Title IV-E) more accessible to tribes.
  • AB 945: Proposes creating a Task Force to study how to comprehensively implement all aspects of existing law related to wearing traditional tribal regalia or recognized objects of religious or cultural significance as adornment at school graduation ceremonies.
  • SB 712: Proposes to prohibit local governments from adopting or enforcing a resolution or ordinance that would prohibit the local government from conducting a fair evaluation of a fee-to-trust application by a federally recognized tribe based on the merits of the application.

An Overview of Indian Water Rights in California – Part 2 Federal Winters Rights

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By Mike Godbe, CILS Bishop office Staff Attorney

This is the second in a three-part series providing an overview of Indian Water Rights in California. This installment focuses on federal reserved rights, also known as Winters rights. Part 1 on state water rights may be found here.

The Winters doctrine is a federal common law doctrine that establishes that an American Indian tribe has the right to access enough water to meet the needs of the tribe, even where there is no treaty provision expressly recognizing such a right. The doctrine states that when the United States withdraws land from the public domain to establish an Indian reservation, the federal government implicitly reserves the amount of water necessary to fulfill the purpose of the reservation. The doctrine is based on the idea that when Congress reserved lands for the Indians, it did so to ensure that the land would be useful and sustain the tribal community.

The Winters doctrine derives its name from the 1908 Supreme Court case Winters v. United States. The Court held that the federal government had transitioned the Fort Belknap tribal members in Montana from a nomadic lifestyle to an agricultural and pastoral way of life. As demonstrated in Winters and subsequent cases, the purpose of creating a reservation is a question of Congressional intent, inferred based upon the specific legal documents and facts surrounding the creation of the reservation.

In creating the Fort Belknap Reservation, Congress sought to force the A’aninin (Gros Ventre) and the Nakoda (Assiniboine) people to give up large areas of land that they moved freely in and make them into farmers confined to a much smaller area. The Winters doctrine holds that, by reserving federal land for this purpose, Congress impliedly reserved the water rights necessary for the purpose (agriculture).  Ironically, the case that enshrined federal reserved water rights for Indian people came about in the same federal policy era that oversaw the reduction and breaking-up of tribal land and tribal governments. Such are the paradoxes and contradictions contained within the long history of Federal Indian Law.

Courts have noted that reservations were created to serve as homelands for tribes and thus require enough water to account for “changing circumstances” and “meet[ing] future as well as present needs.” Some courts have taken this rationale to heart, for example, by holding that the purpose of reservations is to be construed liberally, such that the “purpose” of a reservation is amenable to modern policies of self-determination.[1]

Because Winters rights are implied as those rights reserved to effect Congress’s purpose, they do not apply to situations where Congress explicitly provides for a tribe’s water rights when it creates a reservation. The idea here is that it is not necessary to envision what Congress intended with regard to water rights when Congress has expressly stated its intensions.

In 2017, the 9th Circuit Federal Court of Appeals ( includes California) held that the Winters doctrine applies to groundwater.[2]

Winters rights contain features of both riparian and appropriative water law systems (see Part 1 of this series). In a riparian systems, Winters rights are not lost through non-use. Under an appropriative systems, the tribe’s priority date will correspond to the date the reservation was created, which can be junior or senior to neighboring water interests. Although Winters rights are federal and thus generally superior to state-law-created water rights, it is an established understanding that Winter rights do not trump the superior rights of prior appropriators under state law.[3]

Winters Rights and  Allotments

Allotments are federal lands held in trust for individual Native Americans rather than for tribes. There are generally two types of allotments: 1) those that were created from former tribal lands and are within the boundaries of the reservation that was broken up (as initiated by the General Allotment Act or “Dawes” Act of 1877), and 2) ones that were created from the public domain, and exist separately and independently from any tribe’s reservation (“public domain allotments”).

Courts have conclusively held that Winters rights apply to allotments within the bounds of reservations, that the priority date extends back to the earlier creation of the reservation – not the creation of the allotment, and that allottees are entitled to a fair share of the tribal reserved water rights proportional to the relevant size of the irrigable lands of the allotment to that of the entire reservation. Colville Confederated Tribes v. Walton, 647 F.3d 42, 53 (9th Cir. 1981).

In contrast, we can find no case law explicitly applying Winters rights to public domain allotments. However, considering the purpose of public domain allotments, federal case law regarding the reserved rights doctrine applying to allotments within reservations, and the historical use of public domain allotments to provide land for the allegedly “landless Indians,” there is a strong argument that the Winters doctrine also applies to public domain allotments. Indeed, it has been found to apply to all other land held in trust for Indian people.

What’s Next

In part 3 of this series, we will explore California’s Integrated Regional Water Management system under California law and how it can create opportunities for both recognized and unrecognized tribes to engage with other stakeholders and obtain funding for water-related projects.

[1] In re Gila River Sys. & Source, 35 P.3d 68, 77 (Ariz. 2001).

[2] Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, 849 F.3d 1262 (9th Cir. 2017).

[3] See Arizona v. California, 373 U.S. 546, 600 (1963); Cappaert v. United States, 426 U.S. 128, 138 (1976); see also Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, 849 F.3d 1262, 1268 (9th Cir. 2017).

What Constitutes a Tribal Constitution?

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By Mark Vezzola, CILS Directing Attorney Escondido Office

Before 1934, most Indian tribes did not have written laws and certainly not constitutions. There are exceptions, however. The Cherokee Nation adopted its first constitution in 1827, establishing a three-branch system of government not unlike that of the United States. That does not mean tribes were without law before European colonization and American expansion; tribes, depending on their size and traditions, governed through councils of elders or individual leaders to ensure communal safety, protect resources, and punish wrongdoers.

How and why, then, did tribes begin adopting written constitutions when unwritten rules and social norms worked for millennia? After a dark period that saw the end of the Indian wars and the advent of boarding schools, Bureau of Indian Affairs Commission John Collier, an appointee of Franklin Roosevelt, worked behind the scenes on the Indian Reorganization Act (IRA). The far-reaching 1934 law ended the allotment of Indian land, authorized the Secretary of Interior to take land into trust for tribes, and attempted to rebuild tribal self-government. The Act represented a compromise between progressives who supported tribal sovereignty and those who felt threatened by it.

To promote what he considered modernized, effective government, Secretary of Interior Harold Ickes created a model tribal constitution and dispatched federal agents to Indian reservations across the country to promote it. Elections, an unusual way for most tribes to pass or change laws, gave tribes the opportunity to decide if they would accept the IRA and its constitutional governments. As an enticement, congress appropriated millions of dollars in loans available only to those tribes that adopted the IRA. About 177 did just that, while 81 tribes rejected the IRA altogether. Some believe that tribal members who did not vote in IRA elections counted as “yes” votes by federal officials.[i]

The constitutions offered to tribes under Collier’s “Indian New Deal” did not look like the United States constitution. Generally, BIA agents presented tribes with boilerplate forms that included one executive branch of government, usually a tribal council, to pass laws and negotiate contracts. They did not create tribal courts or legislatures (which were not prohibited either), perhaps because tribes were not yet accustomed to developing written laws or ensuring BIA control over tribal governments. Maybe the biggest difference between tribal constitutions and those of states was the requirement for the Secretary of Interior to approve tribes leasing their land and hiring an attorney.

Over time, tribal constitutions evolved from boilerplate forms into more complex bodies of law reflecting the tribe’s customs and preferred styles of self-governance. The constitution of the Mandan, Hidatsa, and Arikara Nation of North Dakota, for example, authorizes its tribal court to hear suits under the Indian Civil Rights Act of 1968. Others do not. Section II of the Hopi Constitution and By-Laws outlines enrollment criteria for tribal members. The Mississippi Band of Choctaw Indians dictated the frequency and timing of elections in its constitution. Keep in mind; not all tribes have constitutions. Some, like the Navajo Nation, opted against it.

Tribal constitutions are as diverse and fascinating as their origin history. Although they initially did not reflect traditional governance, they marked a huge leap away from the assimilationist policies of the previous last century.

[i] See Pevar, Stephen L. The Rights of Indians and Tribes, Oxford University Press, 2012, p. 86.