An Essay on Pueblo Water Rights

Abstract

The Treaty of Guadalupe Hidalgo in 1848 ended the war between Mexico and the United States and Mexico ceded to the United States “present-day states California, Nevada, Utah, New Mexico, most of Arizona and Colorado, and parts of Oklahoma, Kansas, and Wyoming.” The Treaty provided for Mexicans living in the ceded lands to become American citizens and recognized their property rights according to Mexican civil law. Unfortunately, “the subsequent history of the treaty is one that resulted in the dispossession of Mexican people from their lands through force, fraud, and discriminatory practices.” The California Supreme Court developed the doctrine of pueblo water rights beginning in Lux v. Haggin, by interpreting the laws of Mexico under the Treaty to find that pueblos had the power over common lands and a “right to the use of all its waters necessary to supply the domestic wants” of the pueblo. Although Spaniards settled many of these ceded lands in the Southwest, pueblo water rights were only litigated in California and New Mexico, prior to Texas entering the fray in 1984 and rejecting the doctrine.

Under the pueblo rights doctrine, municipalities that began as colonized pueblos established by Mexico or Spain possess a water right that allows them to take as much water from an adjacent watercourse as they need for municipal purposes, even as the population of the municipality increases. California has been the only state to embrace this doctrine, while New Mexico and Texas have discarded it as flawed. This essay will briefly explore how the pueblo water rights doctrine has been used, or not, in the Western states dealing with municipal water rights and discuss the ongoing controversy over the historical validity of this doctrine. Indeed, “a growing number of water experts, lawmakers, environmental groups and tribes” are challenging California’s system of water law as antiquated and inequitable—the pueblo water rights doctrine may end up just one part of this reform.

Keywords: pueblo, pueblo rights doctrine, state law, water law, water rights