Indian Water Rights: Then and Now
| Publication year | 1986 |
| Pages | 1 |
| Citation | Vol. 15 No. 1 Pg. 1 |
1986, January, Pg. 1. Indian Water Rights: Then and Now
Any discussion of Indian water rights would probably bring into immediate focus the Winters doctrine of reserved rights. In the realm of water law in the arid West, the Winters doctrine has had almost as notable effect as the Monroe Doctrine once had in Latin American political history. Certainly, Henry Winters and his fellow dam-builders on the Milk River in north-central Montana at the turn of the century could not have foreseen the stream of consequences that would flow from their reservoirs.
An 1888 agreement with the Gros Ventre and Assiniboine Indians established the Fort Belknap Indian Reservation as their permanent home. In Winters v. United States,(fn1) the United States Supreme Court ruled that the United States government by implication had reserved waters of the Milk River for use by the Indians and had exempted such waters from appropriation under state law.(fn2) This article discusses this decision and the series of rulings extending the principle underlying Winters not only to other Indian reservations,(fn3) but also to public lands reserved for such specific purposes as national monuments(fn4) and national forests.(fn5)
Before reviewing certain principles of appropriative rights, it should be noted that most western states (Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah and Wyoming, in particular)(fn6) have adopted the doctrine of "prior appropriation" with respect to water rights. Under this system:
the one who first appropriates water and puts it to beneficial use thereby acquires a vested right to continue to divert and use that quantity of water against all claimants junior to him in point of time....(fn7)
As gold seekers and their followers surged across the relatively unpopulated West in the 1840s and 1850s, they occupied land in the public domain, staked out claims and set up local governments. Through local rules and customs, and subsequent court rulings, they established their right to mining properties and to the use of water appurtenant to their mining claims. In this way, the doctrine of prior appropriation was established. "The first user of water was protected against later takers."(fn8)
Two legislative enactments contributed to the establishment of the policy of prior appropriation of water rights: the Mining Act of 1866(fn9) and the Desert Land Act of 1877.(fn10) The Mining Act reflected congressional recognition of the validity of local laws and customs in regard to rights to the use of water. Section 9 of the Act stated:
...whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed....(fn11)
The Desert Land Act provided that water rights on desert lands in the public domain were subject to prior appropriation, and that:
... all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes, subject to existing rights.(fn12)
Four basic principles characterize the doctrine of prior appropriation. First, beneficial use of water, as distinguished from ownership of the land on which it is located, is the basis of the right to use water. Beneficial uses may include those for mining, irrigation, industry, production of electricity, and municipal and domestic needs. Second, an appropriation is the right to take a definite quantity of water per unit of time, for a specified use. Direct flow rights are expressed in terms of the maximum flow that may be diverted. Storage rights reflect the total volume of water that the appropriator is permitted to impound in a stated period of time. Third, in times of shortage of water, priority of use, not equitable apportionment or proration, is the determinant of permissible consumption. Appropriators who are senior in priority may exercise their full rights during times of scarcity, while junior appropriators, either upstream or downstream, absorb the brunt of the shortage. Finally, an appropriated water right is transferable for an indefinite period.(fn13)
The resolution of major questions concerning water rights in the western states, particularly when federal reclamation
First, the Indian reserved water right is created when the lands are originally set aside for Indian use;
Second, the right is created and has a priority date for administration as of the date of the reservation's creation;
Third, unlike appropriative rights, the right, once created, cannot be lost by non-use;
Fourth, the amount of water reserved is that amount necessary to fulfill the purpose of the reservation;
Fifth, the purpose for which the reservation was created is a question of intent as of the time of its creation and is determined from the documents establishing the reservation and the circumstances surrounding its establishment;
Sixth, the water right is senior to all subsequent appropriations, although non-Indians may use the water until it is put to use by the Indians. At such time, though, the non-Indian user is treated as a junior and may suffer a partial or complete loss of his appropriative water rights without being entitled to any compensation.(fn14)
Controversy arises when appropriative water rights have been awarded to non-Indian users of water and Indian claims are asserted to the same water. The current negotiations involving Indian water rights on the Mancos River in southwestern Colorado present a classic illustration of this situation. The non-Indian agricultural economy now faces serious uncertainty owing to the evident senior appropriative rights of the Ute Mountain Ute Indian Tribe ("UMUT"). Agriculture in the area around Mancos, Colorado, depends in large measure on water supplied from a Bureau of Reclamation facility, the Jackson Gulch Reservoir. The Reservoir was completed in 1950 at a cost of $3,933,934 of which $460,500 had been repaid as of December 1984, by the Mancos Water Conservancy District.(fn15)
The UMUT has Winters doctrine reserved rights to waters of the Mancos River. These rights have not yet been quantified, although the UMUT's action to have them adjudicated was initiated in 1972. When adjudicated, the rights will have a priority date at least as early as 1868, the year the UMUT was established at Towaoc.
Non-Indian ranchers in the area are successors in interest to settlers who occupied public lands opened to home-steading after the reservation was established. Those adjudicated water rights are considerably junior to those claimed by the UMUT. The UMUT has recently offered to satisfy its water claims to the Mancos River and other nearby streams by (1) accepting "water currently identified in the Definite Plan Report for the Animas/La Plata Project for use by the Tribe"; and (2) provided that a "one-hundred million dollar development fund will be established for the UMUT."(fn16)
However, should it become apparent to the UMUT that construction of the Project is not possible, or at least is extremely unlikely, then it can be expected to call on the federal government to pursue with new vigor its trusteeship responsibility to the UMUT. If the then-claimed rights are successfully litigated on behalf of the UMUT, the United States will be in an uncomfortable position. The United States will be expected to safeguard the UMUT's rights while, at the same time, it will have authorized the construction of the very storage facility...
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