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

Historical Perspective: CILS’ Protection of Tribal Court Sovereignty

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By Debra Avenmarg, CILS Eureka Office Staff Attorney

Over the years, CILS has played an important role in defending Tribal Court jurisdiction and sovereignty. One particular case that illustrates the importance of protecting Tribal Court orders from intrusion by state courts is the case of In re M.M. (2007) 154 Cal.App.4th 897.

In re M.M.: Background

In re M.M. involved a tribal child who was a dependent of the Humboldt County Superior Court in a child welfare case. After paternity testing revealed who the biological father was, the Karuk Tribe determined that the child was eligible for enrollment and intervened in the matter. The Karuk Tribe then filed a motion to transfer the case to Karuk Tribal Court. A contested hearing was held on the transfer request, along with various other issues. Ultimately, the Humboldt Superior Court granted the motion and transferred the case to Karuk Tribal Court. Before closing the case, the Humboldt Court set a hearing two weeks out to verify that the Karuk Tribal Court had accepted the case and that the transfer had been completed.  At this next hearing, it was verified that the file had been delivered to the Karuk Tribal Court, and the case was accepted by the Tribal Court within six days of ordering the transfer. The Humboldt Superior Court then closed its case.

Under California law, typically, parties have 60 days after the date of an order to file a “Notice of Appeal” to seek appellate court review of a court’s decision that they do not agree with. In the case of In re M.M., the attorney for the child did not agree with the transfer to Tribal Court and filed a “Notice of Appeal” 19 days after the order was made, which was within the usual time frame for appeal.

However, CILS, with the support of father’s counsel, argued that Notice of Appeal was not timely, and the appellate court had no authority to reconsider or undo the transfer of the case to the Karuk Tribal Court. CILS argued that once the transfer to Tribal Court was finalized and the child was made a dependent of the Tribal Court, the state courts, including the court of appeal, no longer had jurisdiction over the minor and no longer had authority to issue any decisions or orders over the minor. The time for any party to request appellate review of the decision to transfer the case and to request a stay of the transfer order, was before the Tribal Court accepted the case and the state court closed the case. Once the transfer was complete, only the Karuk Tribal Court could make decisions or orders regarding the child.

The Court of Appeal agreed with CILS and father’s counsel and concluded it had no power to compel the Tribal Court to return the case to the Humboldt County Superior Court and therefore could not provide the remedy requested by the minor’s counsel. The Court of Appeal agreed that the Humboldt County Superior Court lost jurisdiction over the dependency case when the case was transferred to Tribal Court. As a result, the Court of Appeal dismissed minor counsel’s appeal.

Outcomes and Lessons Learned

The case of In re M.M. cemented the independent sovereignty of Tribal Courts and that state courts have no authority to issue orders directing a Tribal Court to take affirmative actions.  In re M.M. provides legal authority that once a transfer from state court to Tribal Court is finalized, the decision to transfer is not appealable because the California Court of Appeal has no power over the Tribal Court to which the case has been transferred. Additionally, as a result of the In re M.M. case, California laws were amended so that courts must now advise the parties that an appeal of any order transferring a case to Tribal Court must be filed before the transfer to tribal jurisdiction is finalized, and failure to request and obtain a stay of the order for transfer will result in a loss of appellate jurisdiction. The case of In re M.M. was a huge win for Tribal Court sovereignty, and it sent a strong message to all California courts to recognize and respect that sovereignty.

CILS continues to successfully advocate on behalf of Tribes to transfer ICWA matters into Tribal Courts and protect Tribal Court sovereignty. For more examples of ways CILS has protected Indian rights, please see “25 Great Reasons to Support CILS” https://www.calindian.org/25-great-reasons-to-support-cils/

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).

Honoring Our Sisters: Rethinking Tribal Court Jurisdiction

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By Mark Vezzola, CILS Escondido office Directing Attorney

This event originally aired on July, 15, 2021.

About the Program

Please join us for a presentation on the Murdered and Missing Indigenous Women movement underway throughout the United States and Canada. Topics to be addressed include the bias that causes so many victims of violent crime to go unnoticed as well the socioeconomic, cultural, and legal factors that allow their killers and perpetrators to get away.

About the Speaker

Mark Vezzola is a Directing Attorney with California Indian Legal Services. His practice includes estate planning for individuals under the American Indian Probate Reform Act, Indian child welfare advocacy, advising Native organizations, tribal boards and committees, administering tribal elections, code drafting and defending casino tort claims. Mark currently serves as the Chief Judge of the Pala Tribal Court in Pala, California and the Chemehuevi Tribal Court in Havasu Lake, California. Mark graduated from UMass-Amherst with a B.A. in history and from UCLA with a J.D. and M.A. in American Indian Studies. During law school he clerked for the Hopi Appellate Court and interned at the U.S. Department of Justice’s Office of Tribal Justice in Washington DC.

The San Diego Law Library is a State Bar of California licensed MCLE provider. Viewing this class provides 1 Hour of [Bias] Self-Study credit.

Provider Information: San Diego County Public Law Library, Provider #11786

Handout Link

The information offered in this short video has been provided as a public service and is intended to provide basic information. This is not legal advice and is not intended to create an attorney-client relationship. The views expressed in this video belong to the speaker and are not a representation of the San Diego Law Library.

If you would like to watch more educational videos go to CILS’ youtube channel