Cert Petition in Western Water Case Could Put Tribal Sovereignty Back in Supreme Court’s Crosshairs

Aug 23, 2023 | News

On May 11, 2023, the Klamath Irrigation District (KID) filed a petition for a writ of certiorari that could potentially expand the authority of an Oregon state court to adjudicate settled tribal water rights belonging to the Klamath and Hoopa Valley Tribes (Tribes).  The issues raised in the cert petition would provide the Supreme Court a fresh opportunity to limit tribal sovereignty and the legal tenets which form the foundations of federal Indian law.

In 2021, KID filed a motion for a preliminary injunction seeking to stop the Bureau of Reclamation (Reclamation) from releasing water from Upper Klamath Lake in accordance with its responsibility to fulfill tribal reserved water rights.  The tribal water rights at issue belong to the Klamath Tribes and Hoopa Valley Tribe, water rights which were secured in the final order ending the forty-year Klamath Basin general stream adjudication (GSA).  The Tribes did not waive their sovereign immunity in a consent to joinder, and subsequently motioned to dismiss for inability to join a necessary party.

The Ninth Circuit affirmed the district court’s decision to grant the Tribes’ motion to dismiss.  The Court reasoned that Reclamation did not adequately represent the interests of the Tribes and that because the Tribes’ water rights could be impaired by KID’s motion for preliminary injunction– they were “required parties” to the litigation under Federal Rule of Civil Procedure 19(a).  KID filed a petition for cert after the Ninth Circuit denied a request for an en banc rehearing.

KID is asking the Supreme Court to hold that tribes do not need to be joined as necessary parties to attempts to re-litigate their reserved water rights if the federal government is already party to the litigation, regardless of the forum.  As seen in the Supreme Court’s decision in Navajo Nation, the federal government will not adequately assert the interests of tribes where reserved water rights are concerned.  If the Supreme Court agrees to hear this case and ultimately decides in favor of KID, the concept of tribal sovereign immunity will have been effectively turned on its head and the security of all adjudicated tribal water rights will have been jeopardized.

The uncertain parameters of tribal sovereign immunity that would be created by such a decision could see tribes being hauled into state courts without their consent to defend settled rights; or worse, have those rights re-litigated without requiring that tribes even be in the courtroom.  Not only would this result create uncertainty around the finality of any completed GSA in the American West, but it would also functionally undermine the legal status of federally recognized tribes; a status which has guided the last half-century of federal Indian policy.

A link to the cert petition is available here.

We recommend that tribes follow this case closely.

Patterson Earnhart Real Bird & Wilson LLP is dedicated to the representation of American Indian tribes, tribal entities, and individual Indians across the United States. Our mission is to support and advance the sovereignty, self-sufficiency, and self-governance of our tribal clients.

To learn more about how we can assist your tribe, contact our Colorado office at 303-926-5292.