New CILS Project: Assisting Native Vets in Upgrading Military Discharge Status

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By Jay Petersen, CILS Sacramento Office Senior Staff Attorney

CILS Sacramento is launching a new project, The Military Discharge Upgrade Project (MDUP), to help Native veterans with less than honorable military discharge histories improve their discharge classification.  Successful discharge upgrades usually qualify veterans for most or all the benefits otherwise unavailable to them. The MDUP will allow qualifying vets to restore access to medical coverage, pensions, home loans, and educational opportunities.

MDUP is an outgrowth of CILS’ expungement project, Native American Record Clearing (NARC), initiated in the northern Sacramento Valley that now assists Native people statewide clear their conviction records. Both projects offer tremendous benefits to qualifying Natives especially by expanding opportunities for employment and easing successful re-integration into their communities.

Native people have played an important role in the United States military having one of the highest representations of all races in the armed forces. California is home to more than 52,600 Native veterans, more than any other state. Women represent twelve percent of this total number. (Native women serve at a 33% higher rate than women of any other race).

Service, honor, and sacrifice are key elements in Native culture. Less than honorable discharges can stigmatize Native veterans and make their re-entry into their communities even more difficult. About 10% of veterans separate from the military with less than an honorable discharge. While we do not have access to statistics confirming the number of Native veterans with less-than-honorable discharges, we estimate that the percentage of discharges among Native veterans likely exceeds this 10% rate.

When veterans separate from military service (i.e., is discharged), they are assigned a discharge rating based on their work performance. The discharge rating affects veterans’ access to life-long medical care, disability compensation benefits, educational benefits, home loans, and pensions. Discharge ratings can also affect veteran post-service employment prospects. Much like criminal convictions, less than honorable discharges can be used to arbitrarily screen out applications for otherwise qualified job applicants.

Veterans with less than honorable discharges are seven times more likely to be homeless. Substance abuse disorders are diagnosed in nearly half of less than honorably discharged Native veterans. This percentage is almost double the rate found among all discharged veterans.

The Discharge Process 

When a veteran believes a discharge rating does not fairly reflect their service performance, the veteran can seek a discharge upgrade.  There can be time limits within which upgrades must be requested.  But veterans should not assume that because many years have passed since their separation from the military that they cannot upgrade their discharge rating.

A veteran can seek a discharge upgrade in two ways:

  • Most commonly, veterans can upgrade their discharge status through the Discharge Review Board (DRB) that is part of their military service branch. Veterans must apply to the DRB for a discharge upgrade within fifteen years of their service. Upgrade applications can be based on legal and factual errors that occurred during the discharge process and policy changes that apply retroactively. Applications can also be based on equitable grounds that show the discharge was inconsistent with disciplinary standards at the time or that the same discharge decision would not be reached today under current policies and procedures. Veterans with a court-martial history are ineligible for a discharge upgrade through a DRB.
  • Veterans with a court-martial history can apply for a discharge upgrade through their service branch’s Board for Correction of Military Records (BCMR). This upgrade process is similar to a clemency petition. A BCMR can also decide some cases beyond the fifteen-year time limit governing the DRB.

 CILS Services in the Military Discharge Upgrade Project

The upgrade process can take anywhere from several months to two years to complete.  Unfavorable upgrade decisions can be challenged in federal court. Under this Project, CILS attorneys and outreach staff will help Native veterans navigate all aspects of the upgrade process by evaluating the merits of a discharge upgrade effort, helping to select an upgrade path, providing self-help guidance materials, and, where appropriate, by providing direct representation through the upgrade process. To qualify for our free legal services Project, the veterans must be low income but can earn up to 200% of the federal poverty guidelines.

MDUP is a statewide project that will combine outreach efforts with those of our newly funded and expanded criminal record clearing project. We will also target homeless and women’s shelters, veterans’ outreach projects, health centers, residential treatment programs, and re-entry programs throughout the state. CILS has secured pro bono commitments from the San Francisco and Palo Alto offices of a major private law firm to assist with direct veteran representation. We also hope to secure additional funding for a full-time attorney through a law school social venture project fund.

For additional information about the MDUP and the expanded NARC project, please contact Jay Petersen in the CILS Sacramento Office at 916-978-0960 and 800-829-0284.

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

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).

An Overview of Indian Water Rights in California – Part 1 California State Law

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By Mike Godbe, CILS Bishop office Staff Attorney

California faces record-low snowpack, with 94.7% of the state currently in Severe Drought and 85.4% in Extreme Drought.[1] It is critical for California Indian allotment owners and tribes to take stock of their water rights.

California Indian allottees and tribes must navigate an especially complex landscape when it comes to their water rights. They have federal “reserved” water rights protected under the commonly known Winters rights doctrine. Yet these Winters rights exist alongside the complex hybrid state water law system that combines elements of both the riparian and prior appropriation systems for water allocation and determining landowners’ water rights.

This is Part 1 of a 3-Part overview of Indian Water Rights in California.  It covers water rights under state laws generally, as well as, under California’s unique hybrid system. Part 2 and part 3 will discuss the federal Winters doctrine and opportunities for tribes to engage with regional stakeholders via California’s Integrated Regional Water Management (IRWM) projects.

State Laws East and West of the Mississippi River

State water law across the United States generally fits into one of two categories, either “riparian” or “appropriative” (aka “prior appropriation”) systems. California blends the two with a hybrid system. While the water itself is a “public good” (coming from Roman Empire law), the right associated with water is usufructuary, which is a fancy way to say a right to use.

East of the Mississippi River, where water is more plentiful, water rights are generally established under riparian systems. These Riparian systems rely on the connection between surface water and the land that borders or surrounds that surface water, with all adjacent landowners having a riparian water right to reasonably use the water. . In riparian states landowners may additionally withdraw groundwater[2] from underlying aquifers, however, the laws regarding what those landowners may do with pumped groundwater vary from state to state (e.g. in Arkansas, landowners may pump without limit, but the water must be put to beneficial use and the right to the appurtenant groundwater cannot be sold separately from the land). Riparian water rights are not generally quantified, but rather everyone with a riparian interest in the water (i.e., persons whose land touches water) has the right to reasonably use the water for a beneficial purpose. In times of shortage, the riparian interest holders must share equally in the shortage. If a person or tribe obtains land with riparian water rights, they step into the shoes of the prior landowner and interest holder.  They will have an equal interest that is not junior to the interests of riparian owners who owned their land first. Riparian rights do not depend on historical or continued use of the water.

West of the Mississippi, where it is generally much dryer, states use the system of “prior appropriation” to determine landowners’ water rights. The connection to or proximity of the land to surface water does not matter and water rights can be sold independently from the land. A catchphrase for “prior appropriation” systems is, “first in time, first in right.” Prior appropriation systems aim to reward and incentivize the investment of energy and effort it often takes to move water from where it is to where it is needed, such as for agriculture or mining. It comes out of the same 19th-century capitalism that incentivized European settlers to move westward in search of property and profit, usually by dispossessing and waging violence on native peoples. In contrast to riparian systems, senior interest holders generally take their full share before junior interest holders take anything when water is in short supply (‘first in time, first in right’) and when this happens it is known as “curtailment”.  Under appropriative systems, one’s right to water may be lost through non-use (“use it or lose it”).

California’s Hybrid System

California developed a hybrid system that incorporates elements of both the riparian systems and appropriative systems in the late 19th century. The historical development of this hybrid system resulted from the California Supreme Court seeking to address a conflict between miners (appropriators) and people who possessed land dating back to before California statehood that acquired their land title from Mexican Land Grants (riparians). As is often the case, California Indians were usually excluded from consideration and suffered as a result. For example, the Nüümü people (Paiute-Shoshone) of Payahuunadu (the “land of flowing water”, what is today known as the Owens Valley in eastern California) built and maintained complex networks of irrigation ditches for agricultural purposes, which under California’s appropriative system should bestow on them the most senior water rights (‘first in time, first in right’).[3] However, these appropriative rights are not currently recognized, in part because forced relocation and violence perpetuated by the U.S. Army, miners, and settlers disrupted the Nüümü’s continuous and beneficial use of the historically diverted water in the irrigation ditches.[4]

By the late 19th century, California Courts had recognized both riparian rights, drawing upon English common law, and appropriative rights.  The Court resolved the above-described dispute by establishing a hybrid system in which riparian rights are senior to appropriative rights in times of shortage, and later appropriators are subordinate to prior appropriators. Thus, riparian rights were upheld while also recognizing appropriative rights.

Though largely outside the scope of this introductory post, California’s complex water system becomes even more complicated when we move from the system determining water rights to regulating the water rights of individuals.  Different regulatory structures and administrative agencies oversee the use of surface water and groundwater, and the latter is regulated under the relatively new Sustainable Groundwater Management Act (SGMA).

In our next installment, we will cover federal reserved water rights (Winters doctrine). In our third and final installment, we will cover certain legally created entry points under California law for (both federally recognized and unrecognized) tribes and other stakeholders to obtain funding for water-related projects.

[1] https://www.drought.gov/states/california

[2] The right of a landowner in a riparian state to pump groundwater under her land is not a “riparian” water right. Rather, it is a right to groundwater within a state that has a “riparian” system. Landowners in riparian states whose land touches surface water will have both a riparian right to the surface water as well as a non-riparian right to the groundwater.

[3] http://www.oviwc.org/water-crusade/

[4] https://www.nps.gov/museum/exhibits/manz/print_version.html

CALIFORNIA INDIAN LEGAL SERVICES ANNOUNCES NEW ADVISORY BOARD

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Escondido, CA – January 11, 2016: The CILS Board of Trustees selected Jim Ham, a former member of the Board of Trustees and law partner at Pansky Markle Ham LLP, and Mary Ann Andreas, the Vice Chairperson at Morongo, as Co-Chairs of the newly formed Advisory Board.

“The next several years promise to be exciting ones for CILS,” said Dorothy Alther, Executive Director of CILS. “The organization will continue to have a positive impact on the communities we serve and the Advisory Board will play a central role in this important work.”

Jim Ham, Co-Chair of the CILS Advisory Board stated, “This board was established to provide non-policy support to both the Board of Trustees and Staff, particularly in the areas of resource development and public relations. The Advisory Board’s purpose is to lend expertise and experience to CILS, represent CILS in the community, contribute to CILS’ financial development and involve others in the positive work of CILS.”

The Advisory Board will include individuals with strong reputations and leadership experience within Indian Country, senior law firm management, former Board and staff members, and other interested and engaged individuals who have a firm commitment to the work and values of CILS in improving the quality of life for all California Indians.

Interested in helping CILS defend cultural traditions, protect the integrity of Native American families and communities, and champion human right? CILS is looking for additional Advisory Board members.