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Agua Caliente: A Case Study and Toolkit for Securing Tribal Rights to Clean Groundwater

Mar 29, 2020

Dana A. Bass

Volume 45 (2018) - Issue 2

For many generations we lived in two worlds; one anchored in the ancient traditions passed down through songs and stories, the other appropriated from strangers who had come among us. While adaptation enabled us to survive, we learned that only through self-determination would we be able to shape our own destiny.

In 2013, the Agua Caliente Band of Cahuilla Indians sued the Coachella Valley Water District and Desert Water Agency after nearly two decades of voicing its concerns to the agencies over their unsustainable groundwater management practices. Specifically, the Agua Caliente disapproved of the agencies’ overdraft mitigation techniques, which involve artificially replenishing the region’s groundwater basin with lower-quality water imported from the Colorado River. In a case of first impression, the Ninth Circuit held that the Agua Caliente had a reserved right to the groundwater attached to its reservation.

The opinion is significant not only for the Agua Caliente, but for all tribes that would like more control over their groundwater resources. Further, the Agua Caliente’s fight for clean groundwater, and more broadly, for respect as a sovereign nation, reflects the challenges that many native nations face. For this reason, Part I of this Note closely examines the Agua Caliente’s struggle to assert more control over its groundwater resources.

Given the new political and legal landscape this decision creates, and given the potential opportunities for tribes to assert new rights to groundwater because of this decision, Part II of this Note considers the tools tribes may use to best realize their groundwater management goals. In examining these tools, which include legal assessment and quantification, litigation, negotiated settlements, intergovernmental participation, and community education and activism, the Note emphasizes that parties of any water dispute involving tribes must act in accordance with an expanded environmental justice framework that recognizes the attributes unique to the Native American experience. Ultimately, a study of the Agua Caliente’s struggle for clean groundwater shows that perseverance, creativity, and dedication can be the greatest tools for self-determination.