Chapter 2 - § 2.6 • FEDERAL RESERVED WATER RIGHTS

• Jurisdiction: Colorado

§ 2.6 • FEDERAL RESERVED WATER RIGHTS

Compacts are not the only federal interest affecting Colorado water law. The issue of the allocation of water as it relates to various Native Americans, and use on federal lands also play a significant role in allocation and use of water in Colorado. This question first arose in Winters v. United States,⁶³ where the U.S. Supreme Court resolved a dispute over rights to use water in the Milk River between Native Americans of the Fort Belknap Indian Reservation in Montana and nearby non-Native American settlers. The non-native settlers lived on the land that the tribe ceded to the United States and diverted water for irrigation use, meeting all requirements for perfecting their water rights. The Native Americans shortly thereafter began to divert water downstream from the settlers for irrigation purposes and quickly realized they were not getting enough water for their irrigation needs. The United States brought suit against the settlers on behalf of the tribe for a determination of their respective rights to use the water. The Supreme Court granted the prior water right to the Indian tribe, even though the settlers started using the water first, basing its decision on the United States' policy to make the Native Americans "pastoral and civilized people" and because neither the Native Americans nor the government would have agreed to the original cession of land if they had not been able to reserve enough water to make the lands useful.⁶⁴

Winters created a doctrine for water allocation to federal land. Under this doctrine, a certain quantity of water is impliedly reserved with federal land when it is removed from the public domain. The amount of water that is reserved is the minimum amount necessary to achieve the primary purposes of the reservation that was unappropriated at the time the reservation was created.⁶⁵ The quantification of reserved water rights requires a careful examination of "both the asserted water right and the specific purposes for which the land was reserved" and must rest upon a conclusion that "without the water the purposes of the reservation would be entirely defeated."⁶⁶ Federal reserved rights may also be found to exist for national parks, monuments, or other federal reservations of land for specific purposes.⁶⁷

The federal reserved rights doctrine created a jurisdictional problem between states and the federal government. The United States was immune to suit in state courts, so there was no...