A three-judge panel of the US Court of Appeals for the Ninth Circuit [official website] on Tuesday affirmed [opinion, PDF] a lower court ruling that the Agua Caliente Band of Cahuilla Indians [official website] has federally established rights to groundwater in the Coachella Valley reservation in California. This litigation proceeded in three phases in the trial court, but the Ninth Circuit panel considered only Phase I on appeal, which raised the issue “whether the Tribe has a federal reserved right to the groundwater underlying its reservation.” The lower federal court granted a partial summary judgment motion in favor of the Agua Caliente Tribe stating that the US impliedly reserved appurtenant water sources, including groundwater, when it created the tribe’s reservation in the Coachella Valley. The appellate panel agreed, holding that state water rights are preempted by federal reserved rights. In so holding, the panel acknowledged that “there is no controlling federal appellate authority addressing whether the reserved rights doctrine applies to groundwater.” The panel also stated that it is irrelevant whether the tribe historically accessed groundwater and rejected any attempts to distinguish between surface water and ground water stating that the doctrine established by the Supreme Court in Winters v. United States [opinion] does not allow for such distinction. The panel also held that the tribe’s entitlement to state water does not subrograte or otherwise affect its federally reserved water rights. In reaching this decision, the panel refused to speculate “how much water falls within the scope of the Tribe’s federal groundwater right,” but stated that “there can be no question that water in some amount was necessarily reserved to support the reservation created.”
Contention about Native American rights and tribal sovereignty has long been prevalent within the US, with 562 federally recognized Native American tribes enjoying a degree of autonomy from federal and state governments. On Tuesday a federal judge ruled [JURIST report] against Native American Tribes seeking to stop construction on the Dakota Access Pipeline (DAPL) [fact sheet]. Judge James Boasberg of the US District Court for the District of Columbia [official website] rejected the arguments of the Standing Rock Sioux and Cheyenne River Souix [official websites] Tribes that construction of the pipeline would prevent the Tribe from practicing religious ceremonies. The UN Special Rapporteur on the Rights of Indigenous Peoples [official website], Victoria Tauli-Corpuz on Friday called [JURIST report] for the US to adopt a consistent approach to indigenous land rights in pipeline projects. The Special Rapporteur was concerned [transcript] about how indigenous peoples were not fully consulted on the DAPL, leaving them with disruptions to their land. Protesters had made camp at the site since early summer and were led in part by the Indigenous Environmental Network [advocacy website] and the Standing Rock Sioux. Conflict between protesters and police has been condemned by both the UN and the American Civil Liberties Union [advocacy website]. In November the ACLU reported that police at the Standing Rock site in North Dakota used life-threatening weapons [JURIST report] to control protesters. Earlier that month a UN rights group released a statement expressing concerns that the US government is ignoring treaty rights, as well as human rights [JURIST report] of Native Americans and others that are protesting the DAPL. In the face of these events concerning the DAPL, this Agua Caliente ruling is seen as a positive development, and a landmark ruling.