The Use of the Winters Doctrine in the Fight for an Interest in Groundwater

Dale Williams, CLS’17

Native American tribes across the country are fighting for water rights.[1] In southern California, the Agua Caliente Band of Cahuilla Indians has been working for recognition of its interest in the groundwater of Coachella Valley.[2] The tribe brought suit against the Coachella Valley Water District and the Desert Water Agency to assert its rights to the groundwater and its right to participate in making decisions regarding the groundwater.[3] The agencies manage the Coachella aquifer, which has been over-drafted and filled with low-quality water, practices the tribe has objected to for years.[4]

On March 7, 2017, the Ninth Circuit upheld the District Court for the Central District of California’s summary judgment in favor of the Agua Caliente tribe. The tribe had filed suit in May 2013 against the two local water agencies, arguing that “it has a federally reserved right and an aboriginal right to the groundwater underlying the reservation.”[5] While the district court found that the tribe does not have an aboriginal right to the groundwater, the court granted a partial summary judgment in favor of the tribe, holding that “the reserved rights doctrine applies to groundwater and that the United States reserved appurtenant groundwater when it established the Tribe’s reservation.”[6]

In deciding this question, the Ninth Circuit applied the Winters doctrine, derived from Winters v. United States[7], which held that “the creation of an Indian reservation impliedly reserves water rights to the tribe or tribes occupying the territory, that those water rights are reserved in order to carry out the purposes for which the lands were set aside, and that the rights are paramount to water rights later perfected under state law.”[8] The Ninth Circuit found that the U.S. impliedly reserved water rights when creating the Agua Caliente Reservation.[9] The primary purpose of the establishment of the reservation was “to create a home for the Tribe,” which required water.[10] The court went on to hold that the Winters doctrine and the tribe’s reserved water rights extend to groundwater.[11]

The case, which was divided into three phases, will return to federal court to determine “whether the Tribe beneficially owns the ‘pore space’ of the groundwater basin underlying the Agua Caliente Reservation and whether a tribal right to groundwater includes the right to receive water of a certain quality”[12] (Phase II). Phase III of the litigation will “quantify any identified groundwater rights.”[13]

[1] See Stand with Standing Rock, Standing Rock Sioux Tribe (2017) available at

[2] Agua Caliente Band of Cahuilla Indians, Agua Caliente Band of Cahuilla Indians Has Rights to Groundwater, Ninth Circuit Confirms (March 7, 2017) available at

[3] Ian James, Calif. Tribe Wins Appeal in Landmark Water Case, USA Today (March 7, 2017)

[4] Supra note 2.

[5] Agua Caliente Band v. Coachella Valley Water Dist., No. 15-55896, slip op. at 9 (9th Cir. Mar. 7, 2017).

[6] Id. at 10.

[7] Winters v. United States, 207 U.S. 562 (1908).

[8] Felix S. Cohen, Handbook of Federal Indian Law 1210 (2012 Ed.).

[9] Supra note 5.

[10] Id. at 17.

[11] Id.

[12] Id. at 10.

[13] Id.