Skip to content Skip to navigation

Who Owns the Aquifer? The Changing Scope of Native American Groundwater Rights – and Opportunities for Better Freshwater Management

Josie Garthwaite
Aug 3 2018

Scientists map groundwater at stake after a court decision that bolsters Native American rights to a precious resource across an increasingly arid West.

A Sinking Valley Local water agencies have pumped so much water from aquifers to supply homes, farmland and resorts in the Coachella Valley that the land is sinking. The Agua Caliente Indian Reservation, created in 1876, runs in a checkerboard pattern in the area of Palm Springs. Tim Roberts Photography / Shutterstock
 

By Josie Garthwaite

California’s Coachella Valley may be ground zero for a new chapter in water rights for Native American tribes, according to a new Stanford study published in the journal Science.

Better known for lush golf courses, glittering pools, a popular music festival and temperatures topping 120 degrees, this inland desert is also home to the Agua Caliente Band of Cahuilla Indians, which has fought since 2013 for federal courts to affirm its right to groundwater beneath its reservation. Lower courts ruled in the tribe’s favor, and in late 2017 the U.S. Supreme Court denied an appeal.

Observers immediately recognized that the decision could set a powerful precedent for tribal groundwater claims, which have suffered murky legal status for more than 100 years. But how much groundwater is at stake as tribes assert this newly bolstered right – and where these claims may clash with nontribal users in an increasingly arid West – remained uncharted until now.

Sizing up water rights

The study reveals that court decrees and settlements have resolved or proposed rights for tribes in western states to use more than 10.5 million acre-feet of surface water and groundwater annually. To put that in perspective, this would be nearly enough water to irrigate all of the alfalfa, almond and rice fields in California for a year. “It’s a major volume,” said lead author Philip Womble, a PhD student in environment and resources in the Stanford School of Earth, Energy & Environmental Sciences (Stanford Earth).

Tribal Groundwater Claims in the American West

Most unresolved Native American claims to groundwater exist in areas where there’s reason to believe major aquifers could yield significant amounts of groundwater, including in some places where nontribal wells already dot the landscape and increased pumping by tribes might disrupt their production.

Tribal Groundwater Claims in the American West

Philip Womble

Before the Agua Caliente ruling, the study shows, tribal rights exclusively for groundwater made up a small portion – 4 percent – of all tribal freshwater rights in 17 western states. Now, more tribes will likely seek to resolve their rights to control and use water from the aquifers beneath their land, according to Womble and his co-authors, who include Water in the West executive director and Woods Institute of the Environment professor Leon Szeptycki, as well as Water in the West non-resident fellows Debra Perrone and Rebecca Nelson.

This shift comes at a time when questions of who owns the aquifer and how they can use the water holds increasing urgency, as western states face the likely prospect of demand outstripping the supply of legally available freshwater in most western watersheds by 2030.

“Indigenous communities in several countries have struggled to gain rights to their natural resources,” said study co-author Steven Gorelick, a professor of Earth system science at Stanford Earth and director of the Global Freshwater Initiative. Almost half of all homes on Native American land lack adequate access to drinking water or waste disposal facilities, compared to less than 1 percent for U.S. homes overall. The Agua Caliente ruling, Gorelick said, “is a very important step forward in restoring balance to those injured Native American tribes.”

Competing for a precious resource

In the Coachella Valley, the Agua Caliente tribe has for decades purchased water from local agencies, which have pumped so much water from the region’s aquifers that the land is sinking. Now, as the next phase of Agua Caliente’s lawsuit unfolds in federal court, the tribe is seeking to have judges put a number on its groundwater rights, establishing how much water it can pump from the Coachella Valley aquifer – potentially before most other users are entitled to a single drop.

Today, the study shows, fewer than 60 tribes in the western U.S. have this level of legal certainty around their rights to fresh water from any source – whether from lakes and rivers on the surface, or from aquifers underground. Many more tribes have unresolved rights: According to the study, as many as 236 tribes in the western U.S. have lands with groundwater rights that have not been finally quantified in court or in settlements. In all, the research suggests, tribes control at least some water from so many aquifers across the West that any plan to sustainably manage water in the region would be incomplete without considering their role.

These unresolved groundwater claims span large swaths of Arizona, Oklahoma, South Dakota and Utah, and smaller clusters can be found in all other western states except Colorado. Most of them exist in areas where there’s reason to believe major aquifers could yield significant amounts of groundwater, including in some places where nontribal wells already dot the landscape and increased pumping by tribes might disrupt their production.

Ripple effects for laws and markets

Before the Agua Caliente ruling in late 2017, tribal rights exclusively for groundwater made up a just 4 percent of all tribal freshwater rights in 17 western states. Philip Womble
Before the Agua Caliente ruling in late 2017, tribal rights exclusively for groundwater made up a just 4 percent of all tribal freshwater rights in 17 western states.  Philip Womble
 

“Court disputes usually focus on the specific facts of a given case,” said Womble, who specializes in water policy in the Emmett Interdisciplinary Program in Environment and Resources (E-IPER) at Stanford Earth. He is also an attorney. His team has captured a bigger picture that could help inform decisions about groundwater management throughout the U.S. and in other countries that recognize indigenous community water rights, including Australia, Canada, Chile and New Zealand.

“Even though a U.S. court decision clearly isn’t binding in another country,” Womble said, “it could provide a persuasive precedent that courts confronting this issue in other nations might look to.” Historically, he said, courts in Canada and Chile have adopted some terminology and approaches from U.S. water law.

Already, Gorelick added, the study results suggest that the creation of market-based systems for renting water rights could work to indigenous communities’ advantage. “With this ruling,” he said, “Native American tribes with higher priority rights are now in the driver’s seat to potentially benefit from participating in water markets.”

Water in the West is a program of the the Bill Lane Center for the American West and the Stanford Woods Institute for the Environment. Steven Gorelick also is Stanford’s Cyrus Fisher Tolman Professor and a senior fellow at the Stanford Woods Institute for the Environment. Leon Szeptycki also is the Professor of the Practice at the Stanford Woods Institute for the Environment. Additional co-authors are from the University of California, Santa Barbara, the University of Washington Law School and Harvard Law School. The research was funded by the Switzer Foundation and the Stanford Interdisciplinary Graduate Fellowship.

and the west logo

 

 

Read Next in ...& the West

Strawberry Fields Forever? Thirsty Baja Turning to Seawater to Grow Lucrative Crop

An arid region 180 miles south of Tijuana is the crossroads where strawberries, economics, and groundwater meet.

Back to main page

 

 

 

 

Reader Comments

Submit your own thoughts and questions by using the form at the bottom of this page. Entries will be reviewed and posted as we get them.

Submit a Comment

We'd like to know what you think. We will not share your email address or add you to any lists. If you'd like to be notified about new blog posts and news from the Center, you can join our mailing list.

You will receive emails no more than once a week. We will not share your information.

 

...& the Best

Western Articles and Media Elsewhere
Compiled by Felicity Barringer and Carolyn P. Rice

Articles Worth Reading: Feb. 11, 2019

New Restrictions on Colorado River Withdrawals in Dry Times Are Close, but the federal Bureau of Reclamation says, in effect, “close only counts in the game of horseshoes.” The Arizona state legislature met the bureau’s deadline as it agreed to the drought contingency plan formulated by all three states in the river’s lower basin, but the final deals with Native tribes and with California’s Imperial Irrigation District aren’t done yet. The arguments go on. Cronkite News

Native Trout Are Making a Comeback in Colorado, but It’s Taken Decades. As the West was colonized, so were its streams; native fish suffered as non-native ones were introduced. The native greenback cutthroat trout was mistakenly declared extinct in 1937, but its history turns out to be much more complicated. Today, the subspecies survives, but barely, and scientists do not agree on a solution for the fish’s future. Biographic

Ranchers in Montana Want Consumers to Know Where Beef Comes From. The U.S. imports roughly 10 percent of its beef -- from countries like Canada, Argentina and Uruguay -- but it doesn’t have to be labeled as such. Country of origin labeling, Montana ranchers argue, will help consumers make more informed choices--and think it will be good for business. If passed, a bill in the Montana State Senate would require this labeling, as well as prohibit labeling as “meat” the cell-based meat now grown in vitro in laboratories. That decision which could be detrimental to this nascent industry. Civil Eats

Sustainable Development and Gentrification Do Not Have to Go Hand in Hand. An affordable housing project in an industrial, low-income neighborhood of Portland could show the country how green infrastructure can help alleviate poverty and keep communities intact. This project includes weatherization of mobile homes and sustainable landscaping. High Country News

We Need Maps to Comprehend the Scale of the Grand Canyon. Be careful, though–some maps are more attractive than they are accurate. As the iconic national park’s 100th anniversary approaches, listen to the Science Friday podcast explore the history of Western mapmaking through the lens of the maps of the Grand Canyon. Science Friday

Art Installations Thrive in the Coachella Valley. Desert X, a biennial art exhibit, opened this past weekend. It showcases art in mediums that range from fabric to cell phone, all to connect people with the valley and its human history. Explore some of the installations in this photo gallery. The Desert Sun

Articles Worth Reading: Jan. 28, 2019

Wildfires Can Cause Thunderstorms, and the world is witnessing more of these as fires become more common and more intense. Scientists still struggle to understand the exact mechanisms behind the storms, but the effects have become clearer. Lightning can spark additional fires, and winds can hamper firefighting efforts. Particles and gases in the clouds can affect weather patterns on the same scale as small volcanoes. Mother Jones

A Surprising Source of Pollution Sits on the Ocean Floor off of California’s Central Coast: Golf Balls. The little spheres from coastal golf courses release chemical pollutants and break down into bits of plastic that can enter the food chain. A local teenager and a Stanford University scientist found and began to remove golf balls from the waters off of Pebble Beach by the thousands, but more keep falling in. NPR

Mapping as a Way of Creating Indigenous Dialogue Around Place and Art: Jim Enote, an indigenous farmer and museum director, says that because most maps use colonial names, borders, and ideas of space, expanding the definition of maps has been a necessary part of his process. National Geographic

Decrepit Dams in Washington State May Flood Towns Downstream. A recent wildfire made the landscape more prone to runoff, and the dams cannot store the increased winter rainfall associated with a warmer climate. Attempts to repair and modify the dams have highlighted the financial and political challenges of managing remote wilderness. as local agriculture and salmon habitat rely on the shrinking summer water supply. The Seattle Times

Animals From Insects to Wolves May Suffer From Construction Along the U.S.-Mexico Border. Physical barriers and habitat loss can separate animal populations and limit migration. Over 1,500 native plants and animals in the region could be affected by construction of a wall, according to a 2018 report signed by nearly 3,000 scientists. The New York Times

Articles Worth Reading: Jan. 15, 2019

Pacific Northwest Farmers Have Silos Full of Unsold Legumes. The price of garbanzo beans fell by more than half after changes to U.S. trade policy and sanctions on China last year reduced exports. Farmers had already expanded their production, and now they must find a way to pay their debts. Oregon Public Broadcasting

The City of Spokane Is Trying to Clean Up Its Groundwater, which has been polluted by industrial toxins since World War II. Washington state has recently increased the strictness of its water quality standards, but implementation of these standards faces financial, political, and technological challenges. The pollution has accumulated to dangerous levels in the Spokane River fish, which is of particular consequence to the diet and health of the indigenous Spokane people. High Country News

Is Hunting Elk Out of Season Illegal for A Member of the Crow (Apsáalooke) Tribe? The state of Wyoming imprisoned Clayvin Herrera for hunting elk, but the Crow argue that the conviction violates their treaty with the U.S. The case of Herrera v. Wyoming was heard in the Supreme Court last week, and it draws attention to the complexities and contradictions of legal relationships between the U.S. and tribal nations. The Atlantic

Phoenix Has a Public Health Crisis: Heat. Hot days are more frequent, temperatures are rising with climate change, and more than 155 heat-related deaths happened last summer in Phoenix. The city is searching for ways to keep cool during the summer, including umbrellas, text alerts, and creating more shade. The groups that suffer the most, however, are those with the least ability to change their circumstances: low-income communities and the elderly. NPR

Scientists Are Collecting Pictures of Snowflakes from School Children to Analyze Snow Formation and Weather Patterns. Students in the Sierra Nevada can use their phones to take photos of snowflakes and upload them to a citizen science database. Compared to other technologies, this is a more efficient and less expensive means of collecting data on snow conditions, and it gives students the opportunity to learn about research. Science Friday

Articles Worth Reading: Jan. 7, 2019

National Park Life in a Shutdown Situation Means No Snowplows, Few Toilets and Overflowing Trash. Now the Interior Department is taking the unprecedented step of using entrance fees to pay for basic housekeeping – a use that may contravene the mandates of Congress. Around the system, operations are ad hoc. With fresh snow covering the roads and no personnel available to plow them, Arches and Canyonlands national parks shut their gates a week ago as the federal government’s partial shutdown ground headed into its third week. Utah has been funding some personnel costs, but that money was being used to staff visitor centers and clean toilets, not clear roads. In other states, nonprofits, businesses and state governments put up money and volunteer hours to keep parks safe and clean. But makeshift arrangements haven’t prevented some parks from closing and others from being inundated with trash, hence the move to repurpose visitor fees. Salt Lake Tribune Washington Post

After Years of Increasingly Inadequate Fire-fighting Budgets, a Fix Passed by Congress Takes Effect later this year creating a $2.25 billion emergency fund federal officials can use when firefighting costs exceed the firefighting budget. The head of the forest service said it can now better plan when responding to catastrophic fires. Under the fix, the annual firefighting budget would remain at a little more than $1 billion per year, but in fiscal 2020 – which begins Oct. 1 – there will be $2.25 billion to fund operations once the regular fund is spent. The emergency fund would grow by $100 million a year, reaching $2.95 billion in fiscal 2027. ASU/Cronkite News

Banning Heights, a Tiny Central Valley Town, Has an Inadequate Water Supply using broken infrastructure; the private utility responsible for maintaining it has failed to do so. For years, residents in this rural enclave tucked above the Interstate 10 freeway have tried to make Southern California Edison repair century-old pipes taking water from San Gorgonio mountains to their homes. Last year the local water company spent $178,000 ensuring adequate flow for basic health, sanitation and firefighting. Meanwhile, water continued to flow above the community from the Whitewater River, pouring out of unrepaired pipes and around deteriorating dams; 98 million gallons leaked into the dirt during fire season. For 15 years, the utility has tried to surrender its license for the hydroelectric system to the Federal Energy Regulatory Commission. FERC, Banning Heights and the city of Banning say: fix the system first. Desert Sun

The Pacific Northwest Once Boasted Widespread Beaver-Built Salmon Habitat. Now the Tulalip tribes are trying to bring the beaver dams back. After Europeans decimated most of the 400 million beaverds they found in North America, beaver dams crumbled and the ponds and streams slowly disappeared. So did the salmon they supported. More recently, the sentiment that Castor canadensis is a tree-felling, water-stealing, property-flooding pest dominated state agencies in Washington, Oregon and California. But many scientists and land managers are discovering beavers can serve as agents of water conservation, habitat creation, and stream restoration – not to mention groundwater recharge. In Washington, a revised Beaver Bill allows beaver relocations on both sides of the mountains, sailed through. Starting this year, non-tribal groups, like environmental nonprofits, will be able to relocate the animals. BioGraphic

Is It Time to Start Eating Roadkill in Places Outside Alaska? Every year, between 600 and 800 moose are killed in Alaska by cars, leaving up to 250,000 pounds of organic, free-range meat on the road. State troopers who respond to these collisions keep a list of charities and families who have agreed to drive to the scene of an accident at any time, in any weather, to haul away and butcher the body. “It goes back to the traditions of Alaskans: We’re really good at using our resources,” Alaska State Trooper David Lorring said. The state;s tradition of making do means it would be embarrassing to waste the meat. In the past few years, a handful of states, including Washington, Oregon and Montana, have started to adopt the attitude that Alaskans have always had toward eating roadkill. A loosening of class stigma and the questionable ethics and economics of leaving dinner to rot by the roadside have driven acceptance of the practice in the Lower 48. High Country News

Articles Worth Reading: Dec. 17, 2018

Pollution on the California-Mexico Border, Some Carried by the New River, flows though the region. Some of it wafts through the air that carries factory fumes over Mexico and Calexico, Some rises from fetid garbage dumps. It all does serious harm to the health of local residents. A series of articles show smokestacks, traffic exhaust, dust, and smoke from trash fires, often leave the cities blanketed in hazy air. The pollution is linked to high rates of respiratory illnesses and deaths. The Desert Sun

We Knew the California Snowpack Was Declining. Now We Know How Fast: 79 Percent by the century’s end. As it fades, much less snowmelt can be drawn on to fill huge reservoirs such as Shasta, Oroville and Folsom. All this as the state’s population and farm economy continue to grow. The new reality that will require fundamental changes in the way California and the federal government have operated the state’s water system for nearly 100 years. San Jose Mercury-News

In Sacramento, Two New Decisions on Dividing the Waters. In one, the state’s top water agency decides to send more water to Delta fish populations on the San Joaquin River, angering farmers and cities. In another, the governor defers to the federal government and makes more water available to farmers. Sacramento Bee
Sacramento Bee

A Federal Ultimatum Declared on a Colorado River drought contingency plan. Get it done by January 31, said the Bureau of Reclamation Representative told the seven states negotiating the plan — or we’ll do it for you. California and Arizona are the last states to fall into line. But this plan, when it is final, could be a bridge to another agreement to manage the water world of the Southwest as the climate changes and the water disappears. Also: how to think about the future. Denver Post Cronkite News John Fleck

Big Utilities Plan Power Shutoffs to Avoid Sparking Wildfires, while the experience of the Camp Fire indicates that small local power grids enhance the resilience of areas in the wildland-urban interface. Utility Drive

Should Washington State Breach Dams to Preserve Orcas? The decline of Puget Sound’s orca population has many probable causes: toxins in the water, noise from boats and lack of food. Chinook salmon are its primary food, and salmon runs are feeble, despite tens of millions spent by hydropower authorities to bolster salmon runs. As part of a $1 billion-plus save-the-orca effort, Washington Gov. Jay Inslee unveiled a $750,000 plan to investigate the impact should four Lower Snake River dams be removed. It drew criticism from the northwest’s congressional Republicans. Idaho Statesman

Graphics & the West

 

Recent Center News

Feb 14 2019 | Stanford News Service | Center News
Two experts from Stanford’s Water in the West program explain the potential impacts on the future of water in California of the proposed plan to downsize the $17 billion Delta twin tunnels project.
Feb 11 2019 | Happenings
The richness of his lived experience, said the actor Wes Studi in a Jan. 29 appearance, is part of what has allowed him to take on complicated and powerful roles.
Feb 11 2019 | ... & the West Blog
The drama over the Colorado River’s Drought Contingency Plan continues; stealthy trout cling to survival; the wonder of old maps, art in the desert; and other recent environmental stories of interest.