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O~24Qi IJ ... v .' . Indian water rights in an aboriginal context have been recognized in statute and adjudication. Harold A. Ranquist, Senior Attorney in the Solicitor's Office of the Department of the Interior, noted the following instances in a 1975 article: In add i t ion to the water reserved by the federal sovereign upon the creation of an Indian reservation, some Indian tribes may have established an aboriginal, or immemorial, water right by diversion and use prior to the acquisition of sovereign authority by the United States. This aboriginal right, simply stated, is a right to continue using water as it was used by the Indians in their aboriginal state from time immemorial. Such a right was recognized in the adjudication of the Gila River; the Pima-Maricopa Indian Tribe was held to have an aboriginal right to irrigation waters from that river. (U.S. v. Gila Valley lrr. Dist., Globe Equity No. 59. D. Ariz., June 29, 1935.) Also, the Pueblo Land Act (45 Sta t. 312) recognizes an abor iginal right in the middle pueblos of the Rio Grande. Two issues related to the Pueblo Indians' aboriginal water rights are currently being litigated: (I) do the Pueblo Indians have the benefit of a reserved right, and (2) do the Pueblo Indians have a water right recognized under Spanish law enabling them to use water to irrigate all of their practicably irrigable acreage. The resolution of the first issue turns in part on whether the pueblos are Indian reservations to which the Winters doctrine applies. The Rio Grande pueblos were in existence when the United States acquired sovereignty over New Mexico in 1848 pursuant to the Treaty of Guadalupe Hidalgo (9 Stat. 922). Although the pueblos became a part of the United -States at that time, it appears that the lands of the pueblos' did not constitute a portion of the public domain; in any event, no treaty, statute, or executive order has ever designated or withdrawn the pueblos as Indian reservations. It is arguable tha t this fact, however, should not bar application of the Winters doctrine for the benefit of the Pueblo Indians. What constitutes an Indian reservation is a question of fact, not law, and the pueblos have always been treated as reservations in fact by the United States. This pragmatic approach is supported by Arizona v. California where the Court indicates that the manner in which a reservation is crea ted does not affect the application of the Winters doctr ine. If the Winters doctrine does apply to the pueblos, the reserved water rights of the Pueblo Indians would have a priority as of 1848, the date they became reservations under the laws of the United States. -9-