JurisdictionUnited States
Natural Resources Development in Indian Country
(Nov 2005)


Scott B. McElroy
Greene, Meyer & McElroy, P.C.
Boulder, Colorado

Scott B. McElroy is an attorney with the law firm of Greene, Meyer & McElroy, P.C. of Boulder, Colorado. His practice is limited to the representation of Indian tribes and their members, with an emphasis on the litigation and negotiation of natural resource disputes.

He received his J.D. from the University of Toledo College of Law in 1974.

Mr. McElroy is a fellow of the American College of Trial Lawyers. Prior to his entry into private practice, Mr. McElroy practiced with the United States Department of Justice and the Department of the Interior, as well as the Native American Rights Fund. Mr. McElroy has served as water rights counsel for the Southern Ute Indian Tribe since 1985. He also currently represents the Navajo Nation, the Walker River Paiute Tribe and the Pueblo of Nambe in water right matters.

For more than half a century, attorneys, legal scholars, and historians have quarreled over the meaning of the Winters decision with three questions in particular dominating their differences: the quantum or volume of the Indian right, the legitimate uses to which the water guaranteed by the right can be put, and the priority of the right in relation to the rights of non-Indians desirous of the same water sources. The vital importance of water has fired the imagination of disputants and inspired them to fashion a multiplicity of answers to these questions and to erect on those answers contradictory theories about the fundamental nature and extent of the Indian right. Additional byproducts have been bitter court battles and others now in the planning stage, an Indian right that exists more in theory than in practice, the frustration of attempts to implement public and private water plans, and the inability of both Indians and non-Indians to make informed investment decisions.

Norris Hundley, Jr., The "Winters" Decision and Indian Water Rights: A Mystery Reexamined, W. %sHist%s. Q. 17, 18 (Jan. 1982) (footnote omitted).

As Professor Hundley noted over 20 years ago, the reserved rights of Indian tribes under federal law, commonly called the "Winters" doctrine has been the source of continued and sometimes bitter controversy since it was first announced by the Supreme Court in 1908 in Winters v. United States, 207 U.S. 564 (1908). Stripped to its essence, the doctrine provides that when the United States reserves lands from the public domain, it also impliedly reserves water sufficient to accomplish the purpose for which the land was reserved. Accordingly, when the United States sets aside lands as Indian reservations, it reserves water to provide a home for the Indian tribes residing on those lands. Although the doctrine is both simple and logical, its application has been controversial and slow, to the detriment of the affected tribes who have not been able to use the water to which they are entitled. The failure to resolve the tribal water rights claims pursuant to the doctrine has also adversely affected non-Indian water users who share the water resources subject to the unresolved tribal claims and thus suffer from the uncertainty engendered by potentially substantial senior tribal claims to the water supplies on which they depend.

The general approach to resolving the outstanding tribal claims under the Winters doctrine has been to seek an adjudication of all of the rights to a stream system affected by those claims since the bounds of any particular water right generally cannot be fully understood without understanding the quantity and priority of the competing rights in the stream system at issue. But given the vast number of water users on most rivers, as well as the historical and technical nature of the inquiry, adjudications usually span decades and require massive efforts to complete. The magnitude of those efforts is amplified by the need to integrate the federal substantive law controlling the tribal claims and the state law that generally governs the rights of the other users on the stream. When groundwater issues and their associated legal and factual uncertainties are injected into the mix, the task becomes overwhelming. But the objective of completing that painstaking work is a final decree that spells out the scope of the tribal rights as well as those of competing claimants. Such adjudications are also intended to establish a framework for the subsequent administration of the tribal claims either under the auspices of the court conducting the stream adjudication or perhaps through state or tribal administrative processes.

This paper first examines the legal framework and case law relevant to an understanding of the doctrine. It also addresses the outstanding questions surrounding the change in purpose and place of use of such rights, as well as the always controversial issues concerning the questions of tribal marketing of the right to use water off-reservation.



The United States Supreme Court first acknowledged the reserved rights doctrine in the landmark case of Winters v. United States. Winters was the culmination of a series of decisions dealing with three distinct legal concepts: 1) that the federal government holds water rights to satisfy various federal interests that are separate from and not subject to state law; 2) that the United States is bound to uphold the terms and purposes of treaties with Indian tribes; and 3) that whatever aboriginal rights Indian tribes did not expressly relinquish by treaty, they retained, including the right to use water.

1. United States v. Rio Grande Dam & Irrigation Co.

The Supreme Court explored the issue of the federal government's rights to use water under federal law in United States v. Rio Grande Dam & Irrigation Company, 174 U.S. 690 (1899). There, the Rio Grande Dam & Irrigation Company ("Rio Grande Irrigation") intended to construct a series of dams across the Rio Grande River pursuant to the Texas water law of prior appropriation in order to "take and impound the water of said river, and thereby to create the largest artificial lake in the world, and to obtain control of the entire flow of the said Rio Grande." Id. at 691. The issue before the Court was "the effect of the proposed dam and appropriation of waters upon the navigability of the Rio Grande, and, in case such proposed action tends to destroy such navigability, the extent of the right of the government to interfere." Id. at 701. In other words, given that the United States retained a navigable servitude upon the waters of the Rio Grande under the Commerce Clause, U.S. %sConst%s. art. I, § 8, and by operation of the equal footing doctrine, 1 could Rio Grande Irrigation take all the water out of the Rio Grande River so as to destroy the United States' interest in the river? The Court's answer was a resounding "No."

While states may appropriate the waters of nonnavigable streams pursuant to state law -- portions of the Rio Grande River were not navigable -- the United States' right to preserve the navigability of the Rio Grande River superseded the Texas rule of prior appropriation of those nonnavigable sections. States could change the common law rule of continuous flow, or riparianism, to that of prior appropriation, but states could not permit appropriation of water in contravention of the United States' interests. Rio Grande, 174 U.S. at 703. Just as states could not legislate to destroy the United States' interest in maintaining the navigability of navigable streams, private interests subject to state law, such as Rio Grande Irrigation, could not appropriate waters pursuant to state law so as to destroy the United States' interest. This prohibition extended to nonnavigable tributaries and to sections of a navigable stream insofar as the navigable stream depended upon the contribution of their waters for navigability. Id. at 709 (citing the analogy where the State of New York could appropriate the waters of the nonnavigable Croton River, a tributary of the navigable Hudson River, pursuant to state law, but not so as to diminish the flow in the Hudson River and thereby destroy its navigability).

2. Severance of Surface and Subsurface.

The Rio Grande Court reasoned that the Desert Lands Act of March 3, 1877, ch. 107 19 Stat. 377 (codified as 43 U.S.C. §§ 321 -339), was not inconsistent with its holding that private interests could not appropriate water under state law so as to destroy the United States' interest in that water. The Desert Lands Act allowed entry onto lands classified as desert for mining and reclamation purposes but expressly severed water appurtenant to such lands 2 from entry:

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 remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights.

43 U.S.C. § 321. The Rio Grande Court read the Act to indicate Congress' assent "to the appropriation of water in contravention of the common-law rule as to continuous flow." Rio Grande, 174 U.S. at 706. The Desert Lands Act was momentous because Congress expressly severed water from the land on the public domain. The Desert Lands Act severed nonnavigable streams from the public domain, and thereby permitted the appropriation of such water apart from the land.

According to the Supreme Court, such assent did not "confer upon any state the right to appropriate all the waters of the tributary streams which unite into a navigable water...

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