Laserfiche WebLink
<br />An 1848 priority on the Rio Grande is a late priority <br />date and would not assure the Pueblo Indians a water right <br />sufficient to irrigate all their irrigable acreage. The United <br />States, therefore, claims that the water rights of the Pueblo <br />Indians recognized by Spanish law, remained valid after the <br />Treaty of Guadalupe Hidalgo. The United States asserts that <br />Spanish law recognized not only the aboriginal right but also <br />a right to sufficient water to meet the Indians' future needs, <br />including irr igation of all their irr igable acreage. New <br />Mexico disputes this construction of Spanish law and argues <br />that the Pueblo Land Act, which applies on its face only to <br />the middle Rio Grande pueblos, effectively limits all the <br />pueblo Indians' water rights to the aboriginal use. If the <br />federal government is correct, the Pueblo Indians already <br />possessed a water right to irrigate all their irrigable acres <br />when their lands became a part of the United States, and <br />the Pueblo Land Act does not limit that right. <br /> <br />The concept of aboriginal water rights can also be <br />applied to nonagricultural water uses. Aboriginal rights may <br />include the right to maintain minimum stream flows to <br />preserve the environment of a reservation and its fish and <br />wildlife resources. This claim would appear to be <br />particularly appropriate where the Indians have relied upon <br />those resources as a source of food and recreation from time <br />immemorial. In any event, the federal government believes <br />that it is obligated to protect the Indians' aboriginal rights <br />as well as all other reserved rights held for the benefit of <br />Indians (Ranquist, 1975, pp. 662-664, footnotes omitted). <br /> <br />In the context of the above quotations, then, aboriginal rights as applied <br /> <br />to Indian water rights may open questions not only as to the date of priority of <br /> <br />a water right, but also as to the purpose for which the right may be recognized <br /> <br />and perhaps even the source of the water as well. <br /> <br />The question of date of priority with respect to Indian lands removed <br /> <br />from trust status and subsequently reacquired by an Indian tribe and returned to <br /> <br />trust status was ruled upon by the Ninth Circuit Court of Appeals in U.S. v. <br /> <br />Anderson ( <br /> <br />). At issue was the date of priority of <br /> <br />wa ter rights on different classifications of reacquired lands, including: <br /> <br />-10- <br />