One of the long-running controversies in California water is the effort to raise Shasta Dam, a dam on the Sacramento River in Northern California which creates a 4.5 MAF reservoir, the largest in California.  The dam provides long-term water storage, flood control, and hydroelectricity, and is a key storage facility for the Bureau of Reclamation’s Central Valley Project.  In the Shasta Lake Water Resources Investigation (SLWRI) final Feasibility Report and Final Environmental Impact Statement (FEIS) completed in 2015, the Bureau of Reclamation identified the alternative with the greatest level of benefit as the one that would raise the height of Shasta Dam 18.5-feet, increasing the water storage capabilities of the dam by about 13%

Enlarging the reservoir would improve water supply reliability, reduce flood damages, and improve water temperatures in the Sacramento River below the dam for anadromous fish survival.  However, raising the dam would also flood part of the McCloud River, a river designated as Wild and Scenic by the state legislature in 1989 and further inundate sacred sites and other tribal cultural resources important to the Winnemem Wintu Tribe.  There are also ongoing uncertainties at Shasta Dam as to the dam raise, fish protection, and how the federal government will proceed and what actions farmers in the central and southern portions of California will pursue to secure necessary water supplies.

At the 2020 California Water Law Symposium, a panel discussed the history of the project.  Speaking on the panel was Chief Caleen Sisk with the Winnemem Wintu Tribe, Doug Obegi with the Natural Resources Defense Council, and Darcie Houck who is currently General Counsel with California Energy Commission, but formerly represented the Winnemem Wintu Tribe when she was in private practice.

The California Water Law Symposium collaborative student-run event where students from each law school organize a panel which bring together a variety of interesting speakers to discuss some of California’s most critical water issues.  Led this year by Golden Gate University School of Law, participant schools include USF School of Law; UC Hastings College of the Law; UC Berkeley School of Law; UC Davis School of Law; Stanford University Law School; and University of the Pacific, McGeorge School of Law.   This panel was organized by students at UC Davis School of Law.

CHIEF CALEEN SISK

Chief Caleen Sisk is the spiritual leader and tribal chief of the Winnemem Wintu Tribe who practice their traditional culture and ceremonies in the territory along the McCloud River in Northern California.  She is leading the tribe’s resistance against the Shasta Dam raise that would inundate or damage more than 40 sacred sites.  She is also leading efforts to return wild chinook salmon from New Zealand to the McCloud River, the fishes’ ancestral water.

Chief Sisk first sang a short traditional song prior to giving her remarks.  “On the spiritual side of things that we believe that water is a powerful entity, one that supersedes all humans and has the power to change things, grow things, and be separate from anything that were planned,” she said.  “Any kind of bridge we’re building, any kind of canoe we’re going to sail down the river, the water is in charge.”

“But in this world, it’s different,” she continued.  “You have all these laws like you can control these things.  You have all these plans that you’re going to develop these things.  You have all these exceptions that you can contaminate whatever it is that you want to without regard to future life ahead of us.  I’m looking at your fracking laws, I’m looking at your discarded wastewater into the major rivers that provide drinking water to other communities down the way, and the fact that all of the rivers in California are contaminated.  Yet nobody is bothering to change that.  Why aren’t we working on changing that?”

“We’re part of the endangered species,” Chief Sisk continued.  “We were part of the management systems of the endangered species that you’re talking about now, so we have some traditional knowledge about salmon runs – why they run, how they run.  We have songs and dances and although you might not think that has anything to do with saving salmon or saving the waterways, there’s another thought out there by the tribes that believe that if we put our footprints on the ground and we beat our drums for those salmon in the water, those waterways carry that vibration.  That there’s a connection between the stars and the ocean that bring them home.”

“It changed majorly for us during the construction of Shasta Dam,” she said.  “In 1945, we were made homeless by that dam and so were our fish.  We happen to be a tribe that believes that whatever happens to the salmon happens to us.  The day they could not swim home is the day that we could not go live in our homes, either.  And so they are on the verge of extinction now.  They are on the endangered species list.”

“We’re struggling to find a way to assist,” Chief Sisk continued.  “In our creation story, the salmon gave us voice, and so we have this innate obligation to speak for the salmon.  As we speak for the salmon, we’re speaking for us, because they are almost extinct and so are we; their numbers are low and so are ours.  If this doesn’t change, there won’t be any more Winnemem Wintu.  There will be people of that blood, as the salmon of the Mc Cloud River.  They say there are still remnants in the fish that swim in the Sacramento River of the McCloud.  That’s how it will be for us.  There will be remnants of the Winnemem Wintu people and what they believed in and the songs they sang in the people who live on, but it won’t be us.  It won’t be grandmothers who took us to those sacred places because many of those are going to be underwater again.”

“The Bureau of Indian Affairs has created a list of tribes, but they have forgotten that this state is really different,” she said.  “The California Claims Case certified all the Indians of the claims case, including me.  I have a number.  All of the California Claims Case Indians who were identified and certified by the federal government have a number. … So from 1970 to 1980, we received all of the benefits of the federal government: housing, health, education – whatever they offered to any other tribe, we also received it, because we were certified Indians.”

“By 1980, they had revisited doing more work on Shasta Dam and by 1984, they installed the federal acknowledgement process and an application process if you were not on that list of federally recognized tribes,” Chief Sisk continued.  “Unfortunately, even though we had the first US fishery on the McCloud River in 1879 – 1935 and we also had an act of Congress that filled Shasta Dam in 1941, and we had continually been progressive in the California claims case, they left us off the list.  For some reason, the Winnemem Wintu, sitting in the way of the Shasta Dam project, was left off the list.  The 1941 Act was never fulfilled.  They promised my grandfather that we would have like land to live on, that we would have an infrastructure to build our tribe up again and that we would have a burial ground to move our cemeteries too.  None of that happened.”

“The burials that were removed during that time were placed in a place called the Shasta Reservoir Indian Cemetery,” she said.  “That’s a problem for us because there is no history of the Shasta Reservoir Indians.  So they are now saying, ‘that’s a cemetery for everybody’.  That was real nice of the Bureau to build a cemetery for all the California Indians.  They are so nice like that.  But they have forgotten that was one of the beneficiary promises of the act of Congress.”

“Now they are going to raise the dam 18 ½ more feet, Donald Trump is pumping money into it, the Southern California representatives are pushing for more water from the San Joaquin Delta, but at the same time, we’re trying to bring back the fish from New Zealand that were sent there in the early 1900s,” she said.  “We have complied with the Bureau of Reclamation by trying to get the DNA samples for proving these fish were from California and they are legitimate and have what it takes to go back up the Sacramento and to the McCloud River.  There is a push by Fish and Game and all of those agencies to use the hatchery fish because I think they’ve pumped so much money into the hatchery fish, they need to show some do good with those hatchery fish, and they want to put those hatchery fish in our river.”

“We’re saying, the river is still pristine,” Chief Sisk said. “Even though you diverted the water off of the McCloud with your FERC license for the PG&E project, the river is still pristine.  The fish in the hatchery have been there so long that they don’t have the capacity to climb a mountain.  The fish that went from the McCloud to New Zealand still climb a mountain.  They are the fish that we need to go back to the McCloud River, and so this is the process that we’re in.  At the same time, the water projects with the Delta tunnel, we’re going to be a consulting party to the Delta tunnel, and the Sites Reservoir, which all affect the salmon run.”

“I’m not sure quite they are understanding the science correctly because it seems to me that the science that has been being used has been failing year after year, and people can point fingers, it’s happening in the ocean, it’s happening here, it’s doing this, doing that – but the fact is that more and more chinook are getting on the endangered species list, and still there is no open door to say, let’s try one thing that you as the tribal people of the fish and the salmon on the McCloud River are suggesting,” she said.  “We’re salmon people and it was my grandfather who taught Livingston Stone who taught all of you people about the salmon.”

“We have to have more ways into your legal processes, we have to be included in a different way than just sitting on a committee,” she said.  “We know we’re not going have any word.  It’s a checkoff box, that’s how we feel about it.  It’s not a real change that will occur.”

“At some point in time, this will change, because this water and the endangered species are the tipping point of the life that you think you have now,” Chief Sisk continued.  “Because people can’t stop destroying the water, things will stop anyway.  The history of this country is you can’t stop until it’s gone.  You couldn’t stop tracking the animals until they were almost gone.  You couldn’t stop mining the gold until it was almost gone.  It’s gone, right? Nobody mines anymore.  You cut all the trees and you couldn’t stop until there were a few redwoods left.  Then you stopped.  But until then, it’s like, oh no, it will affect the economy.  Oh no, we can’t do that.  People will be out of jobs.”

“People like us don’t even know it happened because we’re not in that part of it,” she said.  “We’re looking at the dead trees, we’re looking at the salmon that don’t run in the river anymore, we’re looking at the birds that are migrating because there’s no salmon in the river anymore, because there’s no bugs on the river, and we’re looking at the logging that goes right up to the river, and the farming that goes right up to the river.  Nobody cares about those things, but it’s the habitat change that we are a part of.   We are part of that ecosystem on the McCloud River.”

“But now we’re not allowed to be on the McCloud River, but we continue to visit it and we continue to pray there and dance there,” she said.  “We have some documentaries out, one called Dancing Salmon Home, which talks about the New Zealand salmon and our efforts to bring them back, and a little bit of history of what happened to the Winnemem, as well as many other California Indians in this state.  We also have another video out called Pilgrims and Tourists, who put in the perspective of indigenous people in the world who are trying to maintain their place, trying to maintain their ways of life.”

“We are going to oppose the Shasta Dam, not only just because it’s going to flood more of our sacred sites and maybe some of those sites forever, and not only because they are going to flood more of our burial grounds and we don’t trust the government to help us with moving our burial grounds, but also because that lake is full of toxic waste,” Chief Sisk said.  “There were copper smelter mines that were just flooded over the top.  They never capped them, they never did anything, and they are still bleeding.  The fish in that lake already have mercury poisoning but there are no signs in the marinas, there are no signs anywhere.”

“We do a run for salmon every year,” she continued.  “This year, it will be in July.  Last year, we stopped at the visitor’s center at Shasta Dam, because there’s no information on the Winnemem Wintu or any Wintu people at the visitor’s center.  There’s no pictures, there’s no anything, and the film that’s in the visitor center, it’s so old, I think it’s a 1950 film, it says, ‘The great California empire begins with the Shasta Dam’.  There’s no mention that there were lots of salmon and lots of Indians on that river.  They failed to really get the rights away from the Indians, and since all of the allotments and all of the tribal lands have never been paid for, that dam actually sits on stolen land.  But when you look at all of your laws that you’re putting down for the CVP, that 1941 Act, the Indian Land Acquisition, is usually missing off of the processes of how we got to this point.  Why that happens, I don’t know.”

This segment of the Standing on Sacred Ground series documents the Winnemem Wintu Tribe’s efforts to stop U.S. government plans to raise the height of Shasta Dam, which would flood more than 40 sacred sites along the McCloud River in the Winnemem’s traditional homeland. (29 minutes)

DOUG OBEGI

Doug Obegi graduated magna cum laude from UC Hastings College of Law in 2006.  He joined the Natural Resources Defense Council in 2008, where he has worked on a variety of water resource management in California, including working for many years to oppose the Shasta Dam raise, including litigation brought by NRDC to stop the enlargement of the dam.

He began by noting that a lot of the documents regarding the Shasta Dam raise were obtained through Public Records Act and the Freedom of Information Act requests.  “It’s really a reminder that a lot of times your opponent has things that will be beneficial to your case that they will not want to disclose, and you have the freedom and the right as a member of the public to demand those documents be produced when they are a public agency.”

Prior to development, adult salmon would swim up the Sacramento River past where Shasta Dam is now located and into the Upper Sacramento River, into the Pit River and into the McCloud River.  Shasta Dam impounds all of the water from those rivers behind it and then releases into the Sacramento River, creating a barrier to salmon migrating upstream.

“Historically, one to two million salmon returned to the Central Valley every year but in recent years, we’ve had as few as 100,000, salmon, the vast majority of which were produced in hatcheries because we have made our rivers into effectively conveyance channels for water,” he said.

Congress enacted the National Wild and Scenic Rivers Act in 1968 which prevents federal agencies from taking actions that would impair the free-flowing condition of designated rivers.  California passed its own Wild and Scenic Rivers Act in 1972 which prohibits activities that could damage soil, water, timber, and habitat close to the river. The state and federal wild and scenic river systems include 26 of California’s rivers, one of which is the McCloud.

The idea to raise Shasta Dam is not new; the Bureau of Reclamation drafted the first plan to raise Shasta Dam in 1978.  NRDC has strongly opposed raising the height of Shasta Dam for decades for three reasons:

• It would destroy and inundate more Native American sacred sites, which is unacceptable for a tribe of people that have been really decimated by water management decisions over the past decades.
• It would inundate parts of the McCloud River, which was protected under state law in 1989 under the state’s Wild and Scenic River Act.
• It’s bad for fish and wildlife. Mr. Obegi pointed out that a report issued by the US Fish and Wildlife in November of 2014 found that they couldn’t recommend the project because it would not benefit salmon; that report was originally finalized and then pulled back to become a draft report, he said.  He also noted that the California Department of Fish and Game has thought that in numerous comment letters that were obtained through the Public Records Act.

“Salmon really do touch every part of the Central Valley,” he said.  “You have to have adequate cold water for them to spawn and rear as juveniles and eggs in the river.  You need to have adequate flows flowing downstream that carry those fish, and we have a lot of good science in the last several decades showing that the volume of water through the Sacramento River is strongly correlated with the survival of juvenile salmon.  When you have more water in the river, you have more fish surviving.  Before Shasta Dam, there were these huge peak flows in the winter and spring when storms would come in.  They would carry those baby salmon safely.  And then the river would go low in the summer and fall, and there weren’t the predator fish populations that we have today.  We have created a novel ecosystem to be sure.”

At the end of 2014-2015, the Obama administration transmitted a final NEPA EIS to Congress and a final feasibility report for raising the height of Shasta Dam that did not include a recommendation of which project to recommend because of the concerns over the McCloud River, cost shares, and concerns about impacts to the tribe even though they are not federally recognized.

“As attorneys, we were stuck with a bit of a conundrum,” Mr. Obegi said.  “First, we thought we could sue under NEPA.  We saw the EIS as very flawed as it didn’t consider any alternatives that didn’t involve raising the height of the dam and didn’t really disclose the adverse impacts to salmon from the project which was supported by many of the federal and state documents that we obtained that would have been in the administrative record.  But we had a problem in that the federal government had never issued a Record of Decision to actually implement the projects, and in most (but not all) Administrative Procedure Act litigation, that commitment of final agency action and a Record of Decision is a prerequisite to showing that your case is ripe.  So we had Congress contemplating raising the height of the dam, and the Bureau of Reclamation hiding the ball and not committing to a course of action that would have given us a more clear grounds for suing.”

“Second, there was no endangered species act consultation, and obviously this project was going to have potential significant effects on a number of endangered species, both those that are right below the dam like winter-run and spring-run chinook salmon, but also native species in the Delta, hundreds of miles away because the water that would be captured by the dam is water that would have flowed through the Delta to benefit longfin smelt and Delta smelt at certain times of the year.  There was no ESA consultation but again, there was no final agency action.”

“So in 2015, I wrote comment letters on the final feasibility report saying, I think you have a problem.  You need to have a cost share with a local water district, but this state law says that all agencies and departments of the state have to comply and protect the McCloud River and cannot approve a project that would adversely affect it.”

The provision is in Water Code 5093.542 subpart C that says except for participation by DWR in studies involving the enlargement of Shasta Dam, no Department or agency of the state shall assist or cooperate with, whether by loan, grant, license, or otherwise, any agency of the federal, state, or local government in the planning or construction of a dam, reservoir, diversion, or other water impoundment facility that could have an adverse effect on the free flowing condition of the McCloud River.

Mr. Obegi said they researched the legislative history and case law, but nobody had ever litigated this particular section before.  “That’s when we first realized that Westlands is an agency of the state,” he said.  “It is amazing what you will find if you actually spend the time to go through the codes, because there actually is a provision of law that we found that said that Westlands is an agency of the state.  So, first test of the statute, we have an agency of the state.”

“Secondly, the final NEPA document from the Bureau of Reclamation admits that the project would adversely affect the free flowing nature of the McCloud River and adversely affect its fisheries, so we found an admission by the federal government that the second part of the test would be met,” he continued.  “Third, we alleged that entering into a cost sharing agreement would constitute cooperation or assistance that would violate the statute, and thus all three tests of the statute have been met, and going forward would violate state law.”

Mr. Obegi said that there were those that were skeptical until they started looking farther into it.  And, even though the report was sent to Congress, there didn’t seem to be intent to actually pursue the project.  Then Donald Trump was elected, and David Bernhardt, former lobbyist and lawyer for the Westlands Water District was appointed Deputy Secretary of the Interior and subsequently seceded to be the Secretary of the Interior.

“Suddenly you had great federal interest in moving this project forward,” he said.  “Now the House of Representatives was demanding language to fund this under a 2016 law that Senator Feinstein had negotiated with Representative Kevin McCarthy.  It’s a reminder for me that what you do in litigation affects the other two branches of government and if you’re not paying attention, you will be screwed.  So we were very involved in making sure that Congress did not override state law in its 2017 energy and water appropriations bill, and we’ve stuck to that because we know there are always opportunities for shenanigans, such as riders that no one wants to sign included in large appropriation bills that must be passed to fund the government.”

In 2018, the federal government was starting to move forward with this, and the state of California came out publicly against the project, noting that it violates state law, but there are some within the state of California that wanted the project to move forward.

“We were successful in fighting full funding for the project that would authorize construction; they did get money for preconstruction, and they continue to try and seek funding from Congress,” he said.  “So far, in 2020, we were successful in getting zero dollars appropriated for the Shasta Dam raise, despite the White House requesting $56 million.”

In November of 2018, the Westlands Water District filed a Notice of Preparation under the California Environmental Quality Act for raising the height of Shasta Dam, and in May of 2019, the NRDC and others represented by Earth Justice filed litigation alleging that Westlands was violating section 5093.2542 because they were an agency of the state and they were providing assistance or cooperation with the federal government in a project that could adversely affect the Wild and Scenic McCloud River.  In that same month, the California Attorney General announced a lawsuit against Westlands, largely along the same grounds.  The Attorney General sought an injunction against Westlands CEQA process because state agencies were going to have to engage in this and because it constituted cooperation or assistance in raising the height of the dam.

“CEQA is not just about planning; it is not just a study,” Mr. Obegi said.  “CEQA is an action-forcing law.  It authorizes you to take action.  And in this case, they were using that process to authorize them to pay hundreds of millions of dollars for raising the height of Shasta Dam.”

The Attorney General sought an injunction and in a tentative ruling, the court found that the Attorney General was likely to succeed on the merits and that in fact Westlands was an agency or department of the state and was contributing assistance whether by loan or other cooperation in the project.

“In fact, we discovered, thanks to Public Records Act and Freedom of Information Act requests, that Westlands had a number of cost sharing agreements with the federal government to pay for this project,” he said.  “They hadn’t committed money yet, but they were certainly entering into agreements to try to facilitate this project moving forward.  The Court specifically rejected Westlands arguments that CEQA was just a planning process and was not action-forcing, and they were actually providing cooperation and assistance.  And finally the Court relied on the numerous state and federal agencies that had concluded that this project would have an adverse effect on the McCloud River.”

The court also found that equity was on the Attorney General’s side and the people’s interest should be furthered through an injunction.  Westlands appealed the decision all the way to the California Supreme Court but was denied.

“Finally we were able to negotiate a global settlement agreement between Westlands, the Attorney General, and the conservation groups that ended the case which put us back in at least a good if not a better position than where we were before and stopped the project from moving forward,” Mr. Obegi said.

No environmental victories are ever safe, he cautioned.  “If you think that Yosemite is protected forever and ever, that is only because that people would continuously believe that Yosemite is valuable.  It only takes one decision of Congress to destroy nature.  It takes everlasting vigilance of the public to protect it, because those decisions are often irrevocable.”

The federal government continues to seek funding for Shasta Dam.  Mr. Obegi said they were successful this year in keeping them from getting federal funding, but proponents of the project will continue to try.

“And lastly, the fight never ends but it is worth it,” he said.  “Every time I’m able to go up there and see salmon spawning successfully, that is a win.  And it may not last forever, but we might as well go down fighting.”

DARCIE HOUCK

Darcie Houck is now General Counsel with California Energy Commission; while in private practice, she was a partner in a nationally-recognized law firm that represents tribal governments and tribal owned businesses.   Ms. Houck consults with the Winnemem Wintu tribe on fish passage related to matters and issues concerning the salmon to Mc Cloud River from New Zealand.  Her comments at the symposium were drawn from her prior experience helping the Winnemem Wintu when she was in private practice and not on behalf of the California Energy Commission.

The Winnemem Wintu tribe was a party to the 1851 treaties that were never ratified by Congress that would have provided reservation lands for California tribes.  The Winnemem Wintu tribe also participated in the Indian Claims Commission and lived on the McCloud River up until the Shasta Dam was built.  In 1941, legislation regarding the Central Valley Project addressed the Native Americans living on the McCloud River, promising land, a cemetery, and other compensation for the taking of that land; however, the legislation did not name the Winnemem Wintu specifically, and as a result of that, Ms. Houck said they were never actually given those promised in regards to land or resources or compensation for what was taken.

The Winnemem Wintu continued to practice their historical ceremonies to the extent they could after the dam was raised.  They continued to receive the benefits from the federal government as individuals up through the 1980s even though they were not a federally-recognized tribe.  In 1978, the Department of the Interior published the federal acknowledgement regulations and Title 25 Part 83, which creates a process for tribes to go through acknowledgement if the federal government is not actively engaged with them.

“The Winnemem have a tribal community up near Redding that was once an Indian allotment; it’s currently not because the Indians living there are not recognized by the federal government, but if you go visit the Winnemem, it is a tribal community, it is a reservation for all intents and purposes except for acknowledgement by the federal government,” Ms. Houck said.

In 1994, Congress enacted Public Law 103-454, the Federally Recognized Indian Tribe List Act which requires the Secretary of the Interior to publish annually a list of the federally recognized tribes in the Federal Register and it formally established ways an Indian tribe may become federally recognized.  When the list was published, the Winnemem Wintu were not on the list.

“That has created significant difficulties for the tribe and their relationship with the federal government and their ability to protect their rights for their cultural resources along the river, water rights, and for areas to be specifically designated as tribal cultural landscapes, and to have government to government relations with the federal government on these issues,” said Ms. Houck.  “They were acknowledged in the environmental review that the was up on the prior presentation as a consulting party under Section 106 as a Native American Group, but the federal government has been very clear that that is not a government to government relationship and the consultation that’s provided is not as an Indian tribe.  That has significant ramifications for the tribe to be able to protect these rights.”

Despite that, the tribe has been successful in getting significant public and community support.  They have joined in coalitions with groups like the NRDC, and in the litigation that was recently filed against Westlands, the state of California named damage to the cultural resources of the Winnemem Wintu as one of their causes of action.  Usually it’s the states that are not aligned with tribes and tribal interests but the California Assembly passed Joint Resolution 37 that recognized the Winnemem Wintu are a tribe and should be listed on the list of federally recognized tribes.

“Yet the federal government continues to use the fact that they are not on the list as a mechanism to cut them out of negotiations,” Ms. Houck said.  “They are not allowed to participate on federal tribal advisory committees. They have repeatedly requested to sit on the steering committee that was created for the Reasonable and Prudent Alternatives from the 2009 biological opinion.  That steering committee includes state and federal agency representatives, and it included a representative from the University of California on that committee.  The tribe had been consulting with Peter Moyle and Mike Miller from UC Davis, and at one point they were talking about designating Chief Sisk as their representative.  At that point, the federal government said then UC Davis should have never been allowed on the Committee because an act of Congress is needed to have someone that’s not a state representative sit on these advisory committees.”

The federal government continued to find ways to exclude the tribe from some of the internal advisory groups.  The state of California through their recognition and through their consultation requirements under AB 52 has been working with the tribe to include them in these conversations and to try and find ways through their requirements to consult that the tribe could be included in these discussions, she said.

“This has been extremely painful for the tribe, having to have this back and forth relationship over a number of years, and it’s had implications for them not being a federally-recognized tribe to be able to argue tribal water rights or have their practices on these rivers acknowledged,” Ms. Houck said.  “However, given the state’s requirements for cultural resource consultation under AB 52, and again their perseverance, they’ve been able to at least be acknowledged in these environmental documents, and again the state of California did name the damage to these resources in their recent litigation.”

The tribe has also been working with Bureau of Reclamation and NOAA for more than a decade, trying to get acknowledgement of their concerns about the hatchery fish and looking at opportunities to bring wild salmon from New Zealand to repatriate them back to the McCloud River.  Two years ago, the Bureau of Reclamation after ten years, did agree to fund some research to get genetic testing done.  It was complicated because the federal government couldn’t contract directly with the tribe because they weren’t federally-recognized; they then agreed to contract through another federally recognized tribe, the Hoopa Tribe, but then the federal government said they couldn’t do that either because it wasn’t in the Hoopa’s territory.  Then they went through an RFP process, and eventually the tribe was able to get the contract through that process a nonprofit.  They have been working with the Fish and Game people in New Zealand, and this last year, the samples were brought back and are currently being tested.

“However, just about the time when we are looking at progress on that testing and talking about what the tribe needs to do in consultation with the California Fish and Wildlife regarding import requirements, the new biological opinions were issued indicating no jeopardy which then eliminates the RPA which was the entire basis for this whole process of doing the genetic testing and looking at repatriating the fish above the Shasta Dam,” said Ms. Houck.  “The tribe will be examining how they are going to be able to deal with that challenge with their groups and the state of California. …  but they are sort of at a loss about how that’s going to move forward, given the current circumstances.”

With respect to obtaining federal recognition, there is a federal acknowledgement process that a tribe can go through, but the process is excruciatingly slow.  Ms. Houck said that she represented in tribe in New York on an unreasonable delay claim for failure to issue a decision on federal acknowledgement because it had been 32 years and they still haven’t reached a decision; the Department of Interior said in open court that it would take another 25 years at least – to 2050 to reach a decision.

“At that point, the court did not dismiss our claim, and we ended up settling for an 18 month process, but if you don’t have a gaming developer or some kind of resource to pay for litigation, it can be cost-prohibitive,” she said.  “At the point we litigated, there was over 10,000 pages of documents that had been submitted to the Department of Interior for a tribe that had a reservation that the state recognized and nobody questioned that they were a tribe.  The Winnemem would have limited resources because they do not want gaming, they do not have a large economic development project behind them to fund the kind of resources that that would take, so they have been moving forward as an unrecognized tribe.”

“I think the tribe, having the relationship with the state that they do, having been named in the lawsuit that was recently filed by the Attorney General, and being able to get as far as they have is truly amazing,” said Ms. Houck.  “I am sure Chief Sisk will continue to do this work, but I wanted to put in context what it means for federal recognition and how you don’t have federal tribal water rights without that recognition and how the cultural protections are very limited.  But they’ve been able to be very creative in using the law to stay in the discussions even though the federal government has put many restrictions on them in that regard.”

QUESTIONS & ANSWERS

The question was asked about the concept of ancestral land and why that is particularly important in California.

“Tribal trust land or reservation land or allotments that are held in trust are recognized as jurisdictional for tribes, but in California, you have a lot of landless tribes,” said Ms. Houck.  “There’s ancestral territory – for example, the Winnemem does not have any tribal trust land recognized by the federal government but their ancestral land is the McCloud River area; that land has their sacred sites, they do their ceremonies there, they gather, there are resources that are critical to their life ways and traditional practices.  Other tribes in other areas have ancestral land that they might not be living on, but that land is still critically important to them and their practices and their survival as a tribe because it is where they come from and where their traditional practices and ceremonies are.”

“For cultural resource law protection purposes, in the State of California and under AB 52, if there’s tribal cultural properties located in an area, it doesn’t have to be on tribal trust land, it can be within their aboriginal territory,” Ms. Houck continued.  “They are places that are important and still used and recognized by those tribes within that land, even if they don’t have jurisdiction over it from a legal perspective.”

“The state of California has made a mess of the tribes, and the territories, and who has become a tribe in California,” said Chief Caleen Sisk.  “The rancheria system was made for homeless Indians, but the Winnemem Wintu didn’t want to be homeless Indians.  We stayed on the river, so we didn’t move to that land that was down in the Redding area.  There were many of those little 20, 40 acre pieces of land setup for the Indians in California.  That basically took place because the Winnemem Wintu wrote to the president about the homelessness of the Indian people in California, that we were even fighting pigs over the acorn trees because the ranchers said we had no right to them because the great white father in Washington had given the land away.”

“In the 1980s, there was a lawsuit that came about, Tillie Hardwick case,” Chief Sisk continued.  “It started in the 1920s.  In the 1950s they started termination policies which terminated land rights on those rancheria systems, and then in the 1970s and 1980s, they started overturning the termination policies of those rancheria systems, based on the fact that the Bureau of Indian Affairs did not uphold their promises to the people on the rancherias.  And so when they overturned those homeless Indian lands, they named them tribes, and so within the Wintu territory area, we have Redding Rancheria, which is considered a federally-recognized tribe, even though the local Indian people consider them to be homeless Indians.”

“We have a very unique situation in California, and California should be treated differently then any other state,” Chief Sisk continued.  “In Arizona, there’s only like 5 tribes; there are 110 tribes and 135 different dialects in California.   So we are a very unique place that is trying to be put in this square peg hole and abide by those laws for very large reservations.  That inhibits us in continuing to be the tribal people that we are.  We have obligations and rights on our watersheds, not just to other people – we have a right and an obligation to the salmon and the oak trees and we have these rights to gather and collect herbs for our medicines.  We still practice those things.”

“We continue to tell the forest service, you should be helping us, because not every river or forest has an Indian tribe that still does it dances and songs and ceremony and prayers in the forest anymore,” Chief Sisk said.  “But they don’t have regulations for that.”

WHAT SHASTA DAM ENLARGEMENT PROPONENTS SAY

In November of 2019, Bureau of Reclamation Commissioner Brenda Burman wrote an editorial for the Sunday edition of the Fresno Bee where she reiterated the strong case for additional water storage in Northern California—specifically, for the reasonable enlargement of Shasta Dam by 18 ½ feet.

“California is in critical need of additional water storage. It seems that every other year we see fields fallowed, rivers running low, and water rationing in cities and towns across the state. Reliable water is critical to every aspect of the economy as more than 40 percent of the nation’s fruits, nuts and vegetables are grown in the Central Valley, much of that using water from the Central Valley Project (CVP) and its largest reservoir—Shasta Lake,” wrote Commissioner Burman.

“California simply does not have enough carry-over storage. Growing demands for California’s shared water resources over the last century, combined with insufficient water storage capacity, limit our ability to meet all those demands. This is why, working with partners, we are looking for new storage opportunities in Northern California. Projects like raising Shasta Dam would allow California to add capacity to an existing reservoir—like adding an addition to your house, rather than clearing land for a new home.”

“Every year in California we have unmet water needs. We hear it from our constituents, we read it in the news—we know it. In California, we know that more storage would help us meet those needs. Shasta Dam already stands over 600 feet tall—adding another 18 ½ feet would enhance the infrastructure we have already built, providing new water supplies for farms, for fish, and for cities.”

“Our administration stands ready to partner with Western States in advancing new and improved water storage projects that would deliver water and power in an efficient, cost-effective, and environmentally sound manner. Improving California’s infrastructure is key to increasing both water supply and environmental benefits.”

Read the full editorial here:  The Fresno Bee: It’s time to secure California’s water supply by raising Shasta Dam