From the Klamath waters to the Western desert valleys, recent court rulings highlight the important and evolving role of tribal reserved water rights and resource management. Since time immemorial, Native American tribes throughout California and the West have perfected sustainable resource management strategies in an ever-changing climate. Their knowledge is increasingly gaining respect and being incorporated into local sustainable management plans through partnerships with tribes. In California, recent legislation and executive orders come with new requirements for tribal consultation and new hope for partnerships with tribes.
This panel from the Environmental Law Conference at Yosemite featured three experts on tribal water rights, all tribal members themselves, who discussed ongoing tribal water rights litigation in the West with a focus on recent litigation in California, and how important tribal partnerships are to the sustainable management of water resources.
Professor Heather Whiteman Runs Him is a member of the Crow Nation in Montana. She directs the tribal justice clinic and is a professor of practice at the Rogers School of Law at the University of Arizona in Tucson. She has previously worked as a senior staff attorney at the Native American Rights Fund in Boulder, Colorado. She served as the joint lead counsel for the Crow Tribe of Montana and practiced in New Mexico as an Assistant Public Defender and worked in private practice. She is admitted to practice before the State Bar of New Mexico and several trial and appellate courts.
Daniel Cordalis is a member of the Navajo Nation who practices natural resources and environmental law, working closely with several tribes to protect their water and natural and cultural resources through litigation, negotiations, land acquisition, and governance. Before starting his own practice, Daniel was an associate attorney at EarthJustice in Denver and a clerk for the Colorado Supreme Court and the Native American Rights Fund.
Anecita Agustinez is an enrolled citizen of the Navajo Nation. She was appointed tribal policy advisor to the California Department of Water Resources in 2013. She currently provides policy support and recommendations regarding tribal issues to Director Karla Nemeth. She has been actively engaged in the Department’s various divisions, assisting in tribal consultation and engagement policies. Before joining the Department, she served as the Native American liaison in the Office of Legislative and External Affairs at the Department of Health Care Services. She also previously served as the Assistant Director of the Office of Native American Affairs in the Attorney General’s Office.
The panel moderator was Yana Garcia, who serves as the Deputy Secretary for Environmental Justice, Tribal Affairs, and California Mexico Border Relations at the California Environmental Protection Agency. “I have served in this role now for several years and know firsthand that, as we grapple with the growing challenge of climate change across the state, from wildfires to drought, sea level rise and floods, our relations, and partnerships with tribes as the original stewards of our lands and resources are all the more critical,” she said.
HEATHER WHITEMAN RUNS HIM: Tribal water rights and resources in a changing climate
Heather Whiteman Runs Him began by saying that helping tribes secure their water rights is one of the most important issues she works on. The challenges associated with climate change are accelerating at an alarming pace to nearly everyone, especially indigenous peoples. The impact of climate change on tribal communities within the United States has been devastating already for many decades. It puts more pressure on the already overallocated and increasingly scarce water resources in the United States, especially in the Western US.
“Our challenge moving forward is to find ways to address the continued urban and suburban growth, financing water projects and infrastructure to assist communities into the future, managing some of the innovative water marketing arrangements in ways that promote equity, prioritizing secure water sources above and foremost to protect fish and wildlife populations, and ultimately to protect the viability of natural environments that so many of our people rely on and the habitats that so many of our resources need to survive,” she said.
She then reviewed various cases and laws regarding tribal water rights:
The Winters Doctrine developed from a Supreme Court case in 1908, which decided that when an Indian reservation is established, sufficient water was impliedly reserved to fulfill the purposes of that reservation. The priority date or the seniority of the water right is the date of the reservation’s establishment. Those dates are often among the earliest if not the absolute earliest priorities within many basins in the Western US, especially. She noted that this early priority often impacts non-Indian water users when it’s enforced.
The United States v. Winans was a Supreme Court case decided in 1905 that defined aboriginal rights, which differ from reserved rights because they have a priority date of time immemorial, and indisputably the earliest and most senior right in any basin at issue.
The US Congress passed the McCarran Amendment in 1952 during what Indian law practitioners call ‘the Termination Era.’ “This was when the US really set a course to limit or end indigenous peoples’ unique property rights and political status in many areas of the US,” said Ms. Whiteman Runs Him. “The McCarran Amendment granted state courts jurisdiction to adjudicate federal reserved water rights, although it was unclear whether Congress intended to include Indian reserved rights in the waivers of the US sovereign immunity for state adjudication of federal reserved water rights. The US Supreme Court ultimately ruled that the McCarran Amendment did apply and included Indian reserved water rights in Arizona v. San Carlos Apache Tribe in 1983. Because adjudication in state courts is often not an attractive prospect to many tribal peoples, this has led to a focus on negotiation and settlement of tribal water rights instead of lengthy and costly litigation. However, tribes are often still forced to litigate when negotiations are not possible or when reasonable minds cannot come to an agreement.”
In Arizona v. California in 1953, it was established that all reservations, regardless of how the reservation was established, whether it’s by treaty, by statute, or by executive order – all have reserved rights to water. The case also recognized the quantified rights to the Colorado River’s main stem for several of those tribes.
Determining water quantity and water quality of tribal water rights
Even though there’s been a focus on negotiated settlements, many tribes have been forced to litigate, so decisions are being made. More detailed questions about the nature of tribal water rights continue to evolve as courts refine their analysis of these issues. As tribal leadership and tribal advocates hone in on the priorities of indigenous peoples in planning and protection regarding water resources and water infrastructure.
“The most critical questions that I see today are how to determine the quantity of water to which tribes are entitled within their right, and what quality of water is required to fulfill that right,” said Ms. Whiteman Runs Him, noting that two federal courts have ruled on the question of quality.
In the United States v. Anderson, the Eastern District of Washington in 1982 ruled that the temperature of water for fish habitat had to be maintained within a specific range and that non-Indian activities that impacted the water temperature and rendered it unsuitable for fish could be enjoined to protect the tribal right that requires that specific temperature range. “Now, if you think that temperature is an element of water quality, and I do, then this is a case about water quality,” she said.
In the US v. Gila River Irrigation District, the federal district court in Arizona enjoined non-Indian agricultural practices that rendered water too saline for use on downstream tribal farmers’ crops. “Without question, the protection of the quality of water to fulfill the tribal water right was at issue in that case and went to support tribal crops and farming practices, so a very strong case that dealt with the quality element of the water right in that case and upheld the tribe’s right to water of a specific and suitable quality for their uses,” she said.
Tribal water rights and groundwater
Another critical question in the West is whether surface water and groundwater are treated the same or not for the purpose of applying the Winters Doctrine. “The Winters case, of course, dealt with surface water, and most states regulate groundwater and surface water differently,” she said. “But for the purpose of determining a water right for a homeland for a land base that’s intended to support a people into the future, would that type of division between surface and groundwater be logical? Would it be humane? It is moral?”
Many reservations are located in arid regions with little to no surface water. Groundwater is increasingly important as a water source to which tribal water rights can be fulfilled, and several negotiated settlements include groundwater within their provisions. Ms. Whiteman Runs Him pointed out that groundwater is critical to human existence, and groundwater is either a primary or a sole supply of drinking water across most of the US.
“Tribal peoples are no exception; they have a right to subsist,” she said. “So why should groundwater not be subject to a reserved rights analysis? Did tribes and the US agree to establish reservations in areas where there was little to no reliable surface water resource and no right to sufficient water to fulfill the reservations’ purpose? This seems unlikely.”
She noted that a handful of state courts have ruled over the decades that groundwater can be a source through which tribal reserved rights are fulfilled with only one court, the Wyoming Supreme Court, notably declining to hold. Still, in that case the reservation at issue was on a land base with fairly abundant surface water resources from which to fulfill the tribal right.
The Agua Caliente case
In 2013, the Agua Caliente Band of Cahuilla Indians in California’s Coachella Valley sued two water agencies, asserting its reserved right to the aquifer underlying its reservation and also requesting that the water agencies cease some activities, such as artificial recharge with imported Colorado River water that tribe claimed harmed the quality of the aquifer water.
The case was trifurcated with phase 1 determining whether there was a reserved right to groundwater. In the ruling on Phase 1, the court held that the reservation did include a reservation of groundwater sufficient to fulfill the reservation’s purposes. The water agencies appealed the ruling and the Ninth Circuit reviewed the District Court’s ruling and stated, ‘while we are unable to find controlling federal appellate authority exclusively holding that the Winters Doctrine applies to groundwater, we now expressly hold that it does.’
After the decisive and historic ruling in phase 1, the trial then proceeded to phase 2. The water agencies raised several defenses: the doctrine of unclean hands, the doctrine of latches, and the doctrine of balancing of the equities, but the court ruled that those defenses were not applicable to a tribal water rights claim, basing its ruling on very strong and long-standing precedent. Phase 2 of the Agua Caliente litigation then included the questions of whether the tribe owns the pore space in the aquifer below its whether its reservation, whether there is a water quality component to the tribe’s federal reserved water right, and what standard should be applied to quantify the tribe’s reserved water right.
“The water agencies with some new legal hands-on board after phase 1 raised standing at this point, arguing that the tribe lacked standing to bring its claim against the water agencies,” said Ms. Whiteman Runs Him. “The court ruled against the tribe at this stage as to standing, which was problematic in a few ways and presented the tribes with some challenges going forward when they seek to establish water rights and protect water resources.”
In this ruling, the statements by the court underscored the difficulty of establishing the right going forward. The court notes that ‘although non-use does not destroy the tribe’s federal reserved water right, it affects whether the tribe has the standing to adjudicate this scope, extent, and character of that right.’
“So without establishing and quantifying a right, asking the tribe to show injury would require the expenditure of vast resources and in many cases, a large amount of construction and decades of work in order to suffer the type of injury that the court apparently contemplates here,” she said. “The court further states that the tribe must provide evidence of injury to its ability to use sufficient water to fulfill the purposes of the reservation. So how does a tribe establish standing? How do we avoid the quandry and sort of chicken and egg dilemma that this court’s analysis and ruling puts tribes into?”
“The court went on further to state that the court finds that to satisfy the injury and fact requirement for standing to quantify its Winters right, the tribe must provide evidence that defendants actually or imminently harmed the tribe’s ability to use sufficient water to fulfill the purposes of the reservation,” she said. “In the Agua Caliente case, the tribe had documented the years of contaminant levels and years of overdraft of the aquifer, and ultimately that was not enough in the court’s view. So what is required to meet the court’s demand for actual and imminent harm to the tribe’s ability to use sufficient water to fulfill the purposes of the reservation? It will be interesting to see how that standard will be developed as this case and similar cases continue forward.”
Ms. Whiteman Runs Him then noted other tribal rights cases currently being litigated:
The Gila River Indian Community v. Cranford was filed in 2019. “The Gila River case is basically a request to enjoin nontribal groundwater pumping activity where the water at issue is hydrologically connected to the Gila River water that the tribe has a decreed right to,” she said. “That case continues to move forward, the initial motion to dismiss was denied; the defendants asserted that the federal court didn’t have jurisdiction and that was decided against the defendants.”
In the Ak-Chin Indian Community v. Maricopa-Stanfield Irrigation & Drainage District filed in March of 2020, the tribe is asking the court to enjoin defendants from changing the quality of the tribe’s water by adding water from a different source. “The tribe is asking to ensure that the tribe receives the water that it agreed to in the settlement and related contracts suitable for specific use from specific sources,” she said.
In conclusion …
“There are many different approaches to resolving water disputes; many unsettled issues and questions in defining and developing tribal water rights,” Ms. Whiteman Runs Him said. “Tribes have options about how they assert their right. There are many pressures; the pressures aren’t necessarily a matter of the tribes’ choice, but the tribes’ ability to respond to the factors of climate change. The factors that cause climate change continue to evolve, and our legal options continue to evolve as well. In the end, it’s probably cooperation and innovation that will help the indigenous peoples in the US secure a safe and secure water future to meet our needs into the future and the needs of our future generations.”
DANIEL CORDALIS: The Yurok Tribe’s water rights
Daniel Cordalis began by presenting a map of the Klamath River Basin, noting that the Yurok Tribe is located at the northwesternmost reach of that basin. The Yurok Reservation stretches one mile on either side of the Klamath River for 45 miles from the mouth of the river at the Pacific Ocean up to where the Klamath River meets the Trinity River, which is the largest tributary to the Klamath and there the Hoopa Valley Tribe are located.
The Yurok Tribe has relied on the Lower Klamath River since time immemorial; it is the tribe’s ancestral territory, although Mr. Cordalis noted that this narrow stretch along the river is but a fraction of that. The Yurok Tribe is a fishing tribe; the Klamath River at one time was the third-largest producing salmon river in the US but is no longer, but the Yurok people are salmon people undoubtedly.
The Yurok reservation was established in 1855 by Executive Order. “Some of you might be familiar with California’s history with tribes and the lack of ratified treaties that leads to most tribes have executive orders. The tribe actually had a signed treaty with US Government just a handful of years before that, but it didn’t make it in DC in a favorable way.”
As a tribe that is living on the Klamath River and has had its reservation established exactly along that stretch, the tribe has fishing and water rights that ensure that the tribe has a right to continue their fishing way of life and their fishing practices. So as tribal advocates, how do we make sure that the tribe is able to protect and retain those rights? He said.
In 1905, shortly after the passage of the Federal Reclamation Act, the Klamath Irrigation Project was created, forever reshaping the hydrology of the basin. Where there were at one point two large lakes and a lot of wetlands and marshes, there’s now Upper Klamath Lake and a series of diversions that move water to 200,000 acres of irrigated land. Below that are a couple of national wildlife refuges and then four hydroelectric dams on the Klamath River as it flows towards the Pacific Ocean.
Mr. Cordalis said the problem really comes from two things: 200,000 acres of irrigated agriculture that divert a lot of the water and the four dams on the Lower Klamath River that impair the water quality of the water in the river as it flows to the ocean.
“So now, instead of having a free-flowing river, like most Western Rivers, we have a system really heavily managed by the federal government and the Bureau of Reclamation,” said Mr. Cordalis. “From our point of view, Reclamation’s job primarily is to manage it first for agriculture and second for everything else.”
Three tribes have reservations within the basin: the Klamath Tribes in Oregon, the Yurok Tribe, and the Hoopa Valley Tribe, and all are salmon tribes. He explained that only the Klamath Tribes have an adjudicated water right because they were part of an Oregon adjudication completed in the last five years and is still currently on appeal in state court.
“The Yurok Tribe and the Hoopa Valley Tribe have recognized fishing water rights on their reservations, but it’s yet to be determined what that means because we just don’t have how much quantity of water we need to support the tribal rights there,” Mr. Cordalis said. “So somewhat in place of the tribe’s water rights, the Endangered Species Act has come in. In 1997, coho salmon were listed under the ESA. The chinook salmon, the king salmon, are not doing at that well but managed to stay off the list, but in the last five years, things have not been going with them, and there are concerns.”
So the tribes advocate for the rights of fish through the Bureau of Reclamation and other agencies. Still, Reclamation doesn’t really understand what the tribal water rights are if they don’t see a piece of paper that says how much water they have to deliver.
“What they do have are determinations through biological opinions, primarily, and other species related documents, salmon recovery plans, of what the fish need to survive,” Mr. Cordalis said. “Right now, that’s how the river is being managed for fish is through the Endangered Species Act. But the existence and the non-extinction of fish is not what a tribal water right is. A tribal water right that supports a commercial, subsistence, and a cultural fishery is not merely a fishery something barely more than extinction.”
So the tribe has been trying to fight back by filing endangered species related lawsuits against the Bureau of Reclamation because this fishery in the last 5, 10, even 20 years has really been suffering. In the last five years, the tribe has had one year where they have been able to have a commercial fishery, and that was in 2019.
“The tribe’s interests are that they are a salmon people that are unable to fish for economic purposes which they always had,” said Mr. Cordalis. “There was one year where we closed the subsistence fishery because there wasn’t enough fish. So we have salmon people who cannot be salmon people. And so what happens when you have a tribe that has reserved water rights to support its fishery, that are senior to everyone but other tribes we share with water rights, but we’re not getting the water we need? It’s really a devastating issue that we’re facing up here on the Yurok reservation. So all our work as lawyers has been, how do you quantify, how do you look at what a water right should be for a tribe who is so interested in the survival and the health of the fishery?”
He acknowledged there are a lot of things going on that are outside of the control of the Klamath Basin, such as ocean conditions. But what can be controlled? “We can control how much water gets into the river, and we can control water quality. So we have done a lot of work trying to remove the dams. The tribes have been extremely up in front, along with California and the state of Oregon, trying to get those four dams out, which will open up half the basin to salmon and anadromous fish. We’re looking at trying to get better quality of water and more water in there to support the fish.”
Climate change impacts are already being felt. Last winter, there was below-average precipitation, but even so, the water didn’t show up in the rivers. “It’s similar to what’s happening in the Colorado River basin is where you have a general drying of the land within the basin that just soaks up the water. If you have a lot of snowmelt, where does it go? It goes into the ground, then hopefully it goes to the river, but if there’s not enough in the ground, it’s not going to show up in the river, and that’s what we’re seeing.”
There’s been continuous litigation between tribes who want the water in the river to protect the fish and the Bureau of Reclamation and the Klamath irrigators. “Other political forces are at play too, which exacerbated all of those, but that’s really where we are in the Klamath River basin and for the Yurok Tribe, is looking for ways to push that forward,” Mr. Cordalis said. “It’s a different approach than a lot of the cases that Heather discussed. It’s fascinating work and it’s really about how do you protect resources and tribal lifeways at the same time.”
ANECITA AGUSTINEZ: Building Tribal partnerships
Anecita Agustinez serves in the role of policy advisor to the California Department of Water Resources. In her presentation, she discussed the importance of developing tribal partnerships and incorporating tribal ecological knowledge into state policy and the importance of consultation and including tribal engagement and participation in various state programs.
As tribal policy advisor, Ms. Agustinez works with California tribal governments and tribal citizens from throughout the state concerning the many programs and projects that the Department is responsible for. Those programs include management and maintenance of one of the country’s largest water infrastructure projects, the State Water Project, and the possible construction of the Delta Conveyance Project, the single tunnel conveyance system recommended by Governor Newsom the California Water Resilience Portfolio. The Department also maintains and operates the various dams and hydro facilities along the State Water Project delivery system and administers various bond programs such as Prop 1 and Prop 68, as well as the Sustainable Groundwater Management Act.
“In each of these programs and projects, the state must develop guidelines and regulations, and oftentimes the importance of understanding how tribal water rights and tribal sovereignty fits into these various programs is often overlooked,” she said. “Tribal participation and the acknowledgment of tribal water rights are essential in working towards ensuring careful stewardship of our increasingly scarce water resources through sustainable water management practices.”
Tribal governments have a unique status due to their sovereignty and the regulatory powers over the groundwater under their trust lands. “Comanagement means seeking out partnerships with the tribes who are culturally affiliated within jurisdictional areas,” said Ms. Agustinez. “To determine which tribes claim an ancestral tie, relationships and communication must be developed, since it’s the tribes themselves who define what their cultural resources are. They also define what their traditional use of land is. By doing so, you respect tribal sovereignty.”
State agencies are working with tribes to define beneficial use and incorporate tribal cultural use and traditional use practices into that very definition. However, she acknowledged it’s an ongoing process and yet to be fully completed.
Tribal partnerships are needed, and co-management practices and communication protocols need to be developed to ensure all beneficial users’ concerns within a watershed, within a groundwater basin. Within your jurisdictional area of management are included, she said.
“The relationships you create through good co-management practices and communications will allow you to identify the water needs of all beneficial users and the water that is currently used or will be used by tribes,” Ms. Agustinez said. “It’s important to understand what those tribal water uses are, which will include municipal, commercial, agricultural, domestic, and subsistence use. You must also take into consideration that water use practices by tribes have been developed over thousands of years, and tribes have long-term basin and hydrological knowledge based on best practices and management of their land. Including the public lands that many GSAs preside over, which are lands that have been taken out of tribal control.”
What is the effect of your current water management practices?
What is its effect on neighboring tribal trust land, sea-land, and ancestral land?
Do you have a communications plan that includes relationships and partnerships with your tribal partners?
And are tribal concerns considered in your management actions?
What are the effects of groundwater pumping or surface water diversion activities conducted off the reservation by municipalities or others?
What are the effects on cultural resources?
Do water infrastructure projects have potential negative impacts on traditional cultural resources?
“The tribes who are the first inhabitants of this land practiced land management, and we refer to that practice as tribal knowledge, traditional knowledge, or traditional ecological knowledge, or sometimes simply as TEK,” said Ms. Agustinez. “Tribal ecological knowledge is being recognized as a scientific practice, and traditional practitioners of tribal ecological knowledge are also being recognized rightfully as cultural keepers and recognized climate science professionals.”
“We are in unprecedented times and have a duty to protect cultural resources that allow for tribes to exercise their traditional uses of the land. Tribal governments, tribal communities, and the other underrepresented communities have experienced economic and physical displacement as a result of historical underinvestments and inequitable planning decisions made by others for them.”
Tribal governments are not subject to state reporting requirements as a sovereign nation. Many tribal governments have their own water codes, and many have developed their own well standards and water quality monitoring practices. These practices are starting to be included in the development of climate change adaptation strategies, and state agencies are including TEK into sustainability plans, such as prescribed burning practices for fire suppression, forest management, and emergency response.
“TEK is being recognized as an important component for sustainable land management and restoration policies,” said Ms. Agustinez. “Partnerships with tribal communities will allow local agencies to share information with tribes, and you will be able to share in the long term the hydrological basin and knowledge that has been learned over centuries of practice with your tribal partners.”
She pointed out that with SGMA, Tribes are well aware of the SGMA language which reads, ‘federally reserved rights to groundwater shall be respected in full.’ Therefore, in order to have an adequate GSP, you cannot have a blind spot to whether local tribes have federally reserved groundwater rights or not, she said.
Tribes have an expectation to participate in their GSAs, which they can do either through JPAs or with MOUs with local agencies in the basins. Although it’s a great theory, Ms. Agustinez said that it’s quite difficult in practice.
“Many tribes do not look at JPAs as something that they wish to participate in, and also, even though MOUs have been developed and agreed upon, some of the participants in those MOUs have difficulties in executing those in the final implementation, or they get totally scrapped and pulled off the table when its time to come to implementation with tribes,” she said. “Understanding of tribal governance structure is very important in establishing those relationships, and also for tribes to also be involved in GSA governance structures so that tribes can be a true partner in the governance structure that is developing the GSPs.”
Tribes are also fully aware of the requirement for tribes to participate in financing in groundwater sustainability planning. “SGMA requires that any exercise of regulatory authority, enforcement, or collection of fees needs to be pursuant to the tribe’s authority as a sovereign nation, and not pursuant to the authority granted under SGMA. That is a conversation that is very difficult to have for many tribes and partners in GSAs and GSP planning have,” she said. “When it comes to tribal water rights, many people at the table cringe because they want to know, has it been quantified? So this is very new for many of these GSAs to deal with, and also tribes themselves who have yet to quantify a lot of their tribal water rights.”
She presented a slide showing some of the state policies concerning tribal consultation, noting that many tribes themselves have developed their own consultation policies. She pointed out Executive Order N-15-19 by Governor Newsom that recognizes the century of prejudicial policies against California Native Americans, which was the first public apology on behalf of California for the many instances of violence, maltreatment, and neglect afflicted upon tribes; it also reaffirmed and incorporates Governor Brown’s Executive Order B-10-11 which established the principles of government to government consultation.
On September 25, 2020, which is California Native American Day, Governor Newsom unveiled a statement of administration on policy on native ancestral lands. “Everyone who works in state government and especially if you work with tribes, you must educate yourself on California’s history from a tribal perspective,” she said. “In recognition of this and other past injustices, this new policy directs every state agency to give California Native Americans the opportunities to access, co-manage and acquire lands on the ownership and control of the state of California. The state and our local partners who managed state-owned land will be learning how to understand, interpret, and implement this new policy. The purpose of the policy is to partner and facilitate tribal access and co-management of state-owned or controlled lands to facilitate access to sacred sites and cultural resources and to improve the ability of tribes to engage in traditional and sustenance gathering, hunting, and fishing, and partner with California tribes on land management and stewardship using traditional ecological knowledge.”
“So I’m looking forward to working with our tribal partners on the future implementation of this policy on ancestral land, especially as it relates to the land under the jurisdiction of the Department of Water Resources,” concluded Ms. Agustinez.
QUESTIONS AND ANSWERS
Question: Moderator Yana Garcia asked both Ms. Whiteman Runs Him and Mr. Cordalis what are the emerging issues they think will arise in the next couple of years as climate change impacts intensify?
Ms. Whiteman Runs Him said the issues of water shortages will be an ongoing issue. “We’ve always had the issue of overallocated basins, but the degree to which there are competing interests fighting over the same resources is becoming increasingly alarming. So I think water planning continues to be important … To me, the most important development in that area is the inclusion of tribal stakeholders at every step of the planning processes, evaluating water resources, and determining long-term goals with other stakeholders. In the past, tribes have been left out; they didn’t have a seat at the table. Increasingly we are seeing that all stakeholders see the necessity of inclusion, and so hopefully, that trend will continue. And hopefully, the tribes are continually able to secure their water rights in ways that ensure that their perspectives and demands are met and listened to. To me, that’s probably the most important trend that I see, and the most important ongoing need is for everybody to be heard and everyone’s voice and state to be respected.”
Mr. Cordalis agreed. “The Colorado River basin, the Klamath – they were just totally developed. Where are the tribes? We’re the most senior water rights holders. So what does that do? To me, it’s going to force us to look more carefully at where the water is going. I hope it does. We have had reckonings with energy. Where does our energy come from? How do we use our energy? What about our water? Is it right to use water to grow feed for animals for other things to shipped overseas … we need to understand the value of water better than we ever have and we just don’t right now. So that’s one.”
“On the ground, we need increased technical capacity at the forefront,” he said. “Looking at how we measure what water is available and how much water is being diverted. We’re still manually opening headgates and closing them, and we’re generally guessing how much water is going out there. We have so much water wasted in ways it should not be. There just has to be a better accounting of our water. It’s part and parcel with how we need to view the resources, and I think it has to be a critical next step.”
Moderator Yana Garcia noted that California has several positive trends with new policies that really put tribal partnerships front and center in how we’re approaching much of our work across state government. As we’re working with local partners to implement some of these new policies, are there any best practices or words of advice that you would uplift for some of our local colleagues and our state colleagues?
“Understanding communication protocols is very important, and tribes themselves have consultation policies, so if you represent an agency or some type of local government, first determining who are your tribal neighbors and what is their ancestral land,” Ms. Agustinez said. “The trend that I didn’t speak about was land acknowledgment throughout California, and that’s a very good start because that requires you really to have an authentic land acknowledgment; you’re not just listing out the series of tribes that have historically been involved or have ancestral tribes, you’re actually working with the tribal citizens who are those descendants and asking them to help you develop a true land acknowledgment policy. It would be a great opportunity to create some partnerships and understanding from that cultural and social avenue. Then from that relationship development, you can start the more difficult discussions on what is the political, economic, and social relationship that you need to have to implement policies. I think those are the first steps.”
“Also, make sure that you understand not only these state policies but if you are a local government, that you will look at SB-18 and other state policies that require consultation outside of state agencies for working with tribes,” she continued. “Get familiar with the Native American Heritage Commission’s consultation list, because I mentioned California Native American Tribes, and in California, that means every tribe in California, regardless of being federally recognized or non-federally recognized. We don’t make that distinction, and Governor Newsom’s are very clear on that, starting with Executive Order B-10-11 and N-15-19.