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Newcomb: Above all: Kumeyaay water rights threatened

In June 1542, a Portuguese conquistador and explorer, Juan Cabrillo, set sail under a Spanish flag from Navidad (today’s Acapulco, Mexico). On Sept. 28, Cabrillo arrived in the huge Kumeyaay bay, now known as San Diego Bay. By that time, the Kumeyaay people had for many thousands of years been living and interacting with the land, air, sun and water of their own traditional territory, a large portion of which is known today as San Diego County in California.

The early Spanish recorded their amazement at the verdant terrain where the Kumeyaay villages were located at places selected to be adjacent to areas of fresh water. A present day map of Kumeyaay village sites shows that the Kumeyaay people lived throughout their vast terrain, with scores of villages near the coast and elsewhere.

A great number of the English place names for these Kumeyaay village sites contain the words, “river,” “wells” and “springs.” Water was vital to the traditional Kumeyaay because they lived in an arid climate that was beset with periodic times of severe drought. They used their many thousands of years of accumulated knowledge of land, water and plants to maintain a sustainable way of life.

Recently, the San Diego Union Tribune published a story about water and the Sycuan Band of the Kumeyaay Nation. (“Seeking stable source of water, Sycuan looks to Otay District” [July 3, 2008]) The article explained that Sycuan may decide to “annex its reservation to the nearby Otay Water District” in order to provide the Sycuan Band with enough water for its future business and community needs. But the story failed to mention the many thousands of years that the Kumeyaay utilized the waters in their homeland for their villages and traditional way of life.

The news story also did not address how difficult it is to get non-Native people to learn about and recognize the full scope of Kumeyaay water rights. This is the result of an assumption that the non-Native society is more entitled than the Kumeyaay to the water within the Kumeyaay territory.

In the book “Hispanic Law,” (1968) author E. N. Kleffens explains that because of the history of Spanish colonization, Castilian crown law is, in “varying degrees,” “still effective with respect to … the law of land and water …” in states such as California (and other places such as New Mexico, Arizona, Nevada and Utah).

When the U.S. assumed possession of that portion of Mexico described in the 1848 Treaty of Guadalupe Hidalgo, the laws of the Spanish crown and of the Mexican Republic that were in effect remained in force. A specific legal provision had to be subsequently revised within and by the U.S. system of government.

This was explained in a letter dated April 3, 1848. The letter was issued by the U.S. Department of State to Mr. Thomas Butler King, who was the U.S. government’s bearer of dispatches and special agent to California.

As the letter to Mr. King stated: “The laws of [the territories of] New Mexico and California, as they existed at the conclusion of the treaty of Guadalupe Hidalgo, will necessarily remain in force in those Territories … [and] the existing laws regulating relations of the people with each other will continue until others, lawfully enacted, shall supercede [sic] them.” The laws in force in those territories at the time of the treaty were the crown laws of Spain (Castile) and the laws of the Republic of Mexico.

In 1851, Fredrick Hall published a book, “The Laws of Mexico,” designed to make sense of the Spanish crown laws and Mexican laws in force at the time of the Treaty of Guadalupe Hidalgo. The first part of the book is entitled, “Crown Lands of Spain, Public Lands of Mexico, and Mines.”

According to Hall’s book, section 49 of the Laws of the Indies states in part: “We [the Crown] order that … the Indians be left with, above all, what lands shall belong to them, … and the waters and the places of irrigations; and the lands in which they have made ditches [acequias] for irrigation or any other benefit, with which by their personal industry they have fertilized, shall be reserved in the first place, and in no case can be sold or alienated.” (My emphasis added.) There is no ambiguity whatsoever in the phrases “above all” and “in the first place.” Also, “in no case” means there are no exceptions whatsoever.

In relation to the land and water rights of the Kumeyaay nation, this aspect of Castilian crown law has obviously not been upheld by the United States, by the state of California, or by the City and County of San Diego. Nonetheless, given a Kumeyaay existence that predates the European invasion of Kumeyaay lands by thousands of years, and given that Section 49 of the Laws of the Indies has not been superseded by Congress, the people of California and the City and County of San Diego have a moral obligation and legal responsibility to respect the water rights of the Kumeyaay Nation and of all the indigenous nations of the geographical area known as California (as well as Arizona, New Mexico, Nevada and Utah).

Steven Newcomb is the indigenous law research coordinator in the education department of the Sycuan Band of the Kumeyaay Nation, a columnist with Indian Country Today, and author of “Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (2008, Fulcrum).