On a summary judgment application, the United States District Court for the Central District of California granted a declaration that an Indian band's federally reserved water rights, which vested at the time of the creation of their reservation in the 1870s, extended to groundwater under the Winters doctrine. The Court found that there is no principled distinction between surface water and groundwater for the purposes of the doctrine. However, it dismissed the Band's claim to water rights based upon Aboriginal occupancy on the grounds that all such Aboriginal rights had been extinguished by a federal statute passed in 1851 following the Mexican-American War.

The plaintiff Agua Caliente Band of Cahuilla Indians asserts that they have occupied the Coachella valley of California, part of the Sonoran desert, since before the arrival of European settlers. A reservation was established by the Executive Order of President Ulysses S. Grant in 1876, and expanded a year later during the Hayes administration. Prior to the creation of the reservation, the Tribe had been encouraged by government officials to build permanent homes in the area.

The defendants Coachella Valley Water District (CVWD) and the Desert Water Agency (DWA) are creatures of California statute. The CVWD is a county water district that is responsible for developing groundwater wells and extracting groundwater. The DWA is a special water district created to provide water to the city of Palm Springs.

The groundwater underlying the Coachella valley is in a continual state of overdraft. Neither the plaintiff nor its allottees produce groundwater; they purchase their water from the defendants CVWD and DWA.

The plaintiff claims that the establishment of the Reservation impliedly reserved to them the right to surface water and groundwater sufficient to accomplish the purposes of the Reservation, which included establishing a homeland for the Tribe. In this proceeding, they sought a declaration that their federal reserved water rights, pursuant to the Winters doctrine, extends to groundwater. They also asserted water rights based upon their Aboriginal right of occupancy. The proceeding was divided into three phases:

  • Phase I was to resolve the legal issues of whether the plaintiff's rights under the Winters doctrine extends to groundwater, and whether they have Aboriginal rights to groundwater;
  • Phase II was to address the ownership of certain “ pore space ” beneath the Reservation, whether the right to a quantity of groundwater also involves a right to water of a certain quality, and a determination of various equitable defences; and
  • Phase III was to involve quantifying any rights to groundwater and crafting the appropriate remedy.

The defendants took the position that Congress extinguished any Aboriginal groundwater rights and that the Winters doctrine does not extend to groundwater. In the alternative, the purposes of the Reservation would not fail without a reserved right to groundwater. The intervenor United States of America took a similar position to the plaintiff about the scope of Winters rights and also emphasized the supremacy of federal water rights. All four parties filed for summary judgment.

The Winters doctrine provides that when the United States withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves “ appurtenant water then unappropriated ” to the extent needed to accomplish the purpose of the reservation. Such implied water rights vest on the date of the reservation and are superior to the rights of future appropriators. Quantifying the implied water right is a distinct and more difficult issue.

The U.S. courts have interpreted the purpose of Indian reservations in a liberal manner. The purpose is a broad one, and involves the tribe's need to maintain themselves under changed circumstances. The terse Executive Orders from the 1870s are vague, but the Court was satisfied that the purposes of the plaintiff's Reservation should be construed broadly, and Winters rights can anticipate increased or novel future uses. Justice Bernal stated:

… the Court can safely state that the reservation implied at least some water use; but exactly how much is not a question presented by Phase I of this case.

When the plaintiff's Reservation was created by Executive Order in the 1870s, the Government also impliedly reserved the right to appurtenant water. Justice Bernal stated: “ No case interpreting Winters draws a principled distinction between surface water physically located on a reservation and other appurtenant water sources ”. Any attempt to limit appurtenant water sources to surface waters “ fails as a matter of law and logic ”. Both caselaw and statute treat groundwater as an appurtenant water source. There is no persuasive authority to distinguish between surface and groundwater sources. Justice Bernal held:

Rights to the groundwater underlying the reservation are appurtenant to the reservation itself. Accordingly, the Court concludes the federal government impliedly reserved groundwater, as well as surface water, for the Agua Caliente when it created the reservation. Whether groundwater resources are necessary to fulfill the reservation's purpose, however, is a question that must be addressed in a later phase of this litigation.

The Court held that arguments made by the CVWD and DWA were largely irrelevant to the Phase I issues. Their arguments related mostly to the issue of quantification, which is an issue for a later phase. They also referred to the statutory scheme in California for groundwater allocation, which they argued could function without resort to the Winters doctrine. Justice Bernal held that such arguments do not impact Phase I of this proceeding, and concluded that the plaintiff was entitled to partial summary judgment on the issue of whether their federally reserved water rights encompass groundwater underlying the Reservation.

In regards to the claim based upon Aboriginal occupancy, the Court referred to cases such as Johnson v. M'Intosh (1823) and Tee-Hit-Ton Indians (1955). A tribe's property rights arise out of original territorial occupancy. They are not ownership rights, but rights of occupancy granted by the conquering sovereign, and the conquering government acquires the exclusive right to extinguish Indian title. Any such divestment of original Indian title is purely a matter of Congressional prerogative. A federal statute is the typical manner of divestment.

The Court dismissed the plaintiff's motion for summary judgment on the basis of Aboriginal groundwater rights. The lands of the Coachella valley were ceded to the United States by the Republic of Mexico in 1848 as part of the Treaty of Guadalupe Hidalgo. A statute passed by Congress in 1851 required the presentation of land claims in California to a commission for validation. As held in cases such as United States ex rel. Chunie v. Ringrose , 788 F. 2d 638 (9 th Cir., 1986), the 1851 statute imposed a two-year time limit for presenting land claims. This statute “bars Indians who failed to assert original occupancy claims within the statutory two-year window from relying on such a right in future disputes”. The rights are regarded as abandoned. The plaintiff admitted that no claim was filed under the 1851 statute and, in consequence, “the Agua Caliente's aboriginal claim was effectively extinguished after the two-year claims window closed”.

The Court rejected the plaintiff's alternative argument that it re-established a right of Aboriginal title through continuous occupation since 1853. The establishment of the Reservation in 1876 re-extinguished any such right. An Aboriginal right of occupancy is fundamentally incompatible with federal ownership. Bernal J. summarized:

The Act of 1851 extinguished the Tribe's aboriginal occupancy right, and even if the Tribe re-established such a right it was not continuous and exclusive and continuous once the United States created the Agua Caliente's reservation. Accordingly, the Tribe cannot assert an original occupancy right, and [the] Defendants are entitled to summary judgment on this issue.

The Court noted that the issue of whether the Winters doctrine extends to groundwater has led to conflicting caselaw, and there are no decisions of the federal appellate courts on the issue. The Court therefore certified this order for interlocutory appeal should any of the parties seek to bring an appeal.

Decisions available here.


Scott Kerwin 


Aboriginal Law