1908 Winters Doctrine
The seminal Indian reserved water rights case is Winters v. United States. In Winters, the United States initiated a lawsuit to restrain settlers from constructing and maintaining water works to divert water from the Milk River which would prevent water from flowing to irrigate Indian lands on the Fort Belknap Indian Reservation in Montana. The Court found that the agreement creating the Fort Belknap Reservation sought to transition the Gros Ventre and Assiniboine Indians from a pastoral to an agrarian lifestyle, but that the reservation lands “were arid, and, without irrigation, were practically valueless.”
Courtesy of and Copyright: Bureau of Reclamation, Colorado River Basin Ten Tribes Partnership, Tribal Water Study Report
Photo of Colorado River Through Ruby and Horsethief Canyon
Courtesy of Colorado Newsline, Photography by William Woody
Ute Horsemen Crossing the Los Pinos River, 1899
Courtesy of Denver Public Library, Horace S. Poley Photographer
Ute Horsemen Crossing the Los Pinos River, 1899
Courtesy of Denver Public Library, Horace S. Poley Photographer
Accordingly, the Court held that the establishment of the reservation impliedly reserved the amount of water necessary to irrigate its lands and to provide water for other purposes. The Court also held that these reserved waters are exempted from appropriation under state law. Federal Indian reserved water rights are often referred to as Winters rights. As the trustee and holder of title to federal Indian reserved water rights, the United States has an obligation to protect Indian water rights and water resources for each beneficiary tribe. Federal Indian reserved water rights generally have one of two priority dates: date of reservation or time immemorial. Where the reserved rights are necessary to fulfill purposes created by the establishing document, the priority date is the date of establishment of the reservation. If, however, water is reserved so a tribe can continue its aboriginal uses, such water may have a time immemorial priority date.
Courtesy of and Copyright: Bureau of Reclamation, Colorado River Basin Ten Tribes Partnership, Tribal Water Study Report
Federal Indian reserved water rights are defined primarily by federal common law. Indian “[r]eserved water rights are ‘federal water rights’ and ‘are not dependent upon state law or state procedures.’” Although federal Indian reserved water rights are often adjudicated in state courts, state courts must apply federal law. These rights differ from state water rights in several respects. Water rights based on state law are largely fixed by the date and quantity of the landowner’s initial use or appropriation of water. Laws of the western states (and the federal Reclamation laws) also require the “beneficial use” of water (for example, for mining, irrigation, domestic, municipal, industrial, power production, stock watering, wildlife preservation, and recreation) and typically require the water to be diverted from its source. Failure to use the water for a period of time could result in loss of the right under state forfeiture or abandonment laws.
Courtesy of and Copyright: Bureau of Reclamation, Colorado River Basin Ten Tribes Partnership, Tribal Water Study Report
Water Jug
Undated, Maker Once Known, CSPM Collection
Supreme Court to Hear Case
Courtesy of Patterson Real Bird & Wilson LLP
Conversely, federal Indian reserved water rights are quantified based on what is needed to accomplish the reservation’s purposes, including past, present, and future uses, not on initial or current use of water. These rights may be used for any lawful purpose on the reservation. Federal Indian reserved water rights also cannot be lost because of non-use under state-law concepts such as abandonment and forfeiture.
Courtesy of and Copyright: Bureau of Reclamation, Colorado River Basin Ten Tribes Partnership, Tribal Water Study Report
The 1922 Colorado River Compact apportioned the Colorado River between the Upper and Lower Colorado River Basins. The extent to which the Compact affects the rights of the Tribes is unclear. The Compact recognized and protected present perfected rights in the Colorado River system declaring such rights as unimpaired by the Compact. The priority dates of most of the water rights of the Tribes predate the Compact and should be considered “present perfected rights” as that term is used in the Compact. In addition, the Compact also provided that “[n]othing in this compact shall be construed as affecting the obligations of the United States of America to Indian tribes.”
Courtesy of and Copyright: Bureau of Reclamation, Colorado River Basin Ten Tribes Partnership, Tribal Water Study Report
Cracked earth, a dry lakebed signals the end of summer
Courtesy of CPR, Jeremy Wade Shockley Photograph
