Indian Reserved Water Rights: An Overview

Indian Reserved Water Rights:
An Overview
Updated September 26, 2008
Yule Kim
Legislative Attorney
American Law Division

Indian Reserved Water Rights: An Overview
Summary
The Western states are under severe pressure from their citizens to secure access
to water. In planning to meet this goal, Western officials have had to confront the
doctrine of Indian reserved water rights, also known as the Winters doctrine. This
doctrine holds that when Congress reserves land for an Indian reservation, Congress
also reserves water to fulfill the purpose of the reservation. When this doctrine is
applied to the water laws of the Western states, tribal rights to water are almost
always senior to other claimants. Therefore, in order for Western water officials to
effectively plan for a stable allocation of water on which all parties can rely, they
must find a way to satisfy the water claims of local Indian tribes. The parties
originally looked to the courts to resolve these issues, only to find themselves in an
endless cycle of litigation that rarely produced definitive rulings. As a result,
negotiated settlements — which often require federal funding in order to be
implemented — have become the norm. This report provides an overview of the legal
issues surrounding Indian reserved water rights disputes.
Several settlements are being actively considered by the 110^th Congress.
H.R. 5293/S. 462 would approve the water rights settlement of the Shoshone-Paiute
Tribes of the Duck Valley Indian Reservation in Nevada. S. 3355 would authorize
the Crow Tribe water rights settlement reached between the Crow Tribe and the state
of Montana. S. 3381 would provide for the Aamodt Litigation Settlement Act and the
water rights settlement of the Taos Pueblo. H.R. 1970/S. 1171 would authorize the
Navajo Nation Water Rights Agreement.

Contents
In troduction ..................................................1
Winters and the Reserved Water Rights Doctrine.....................1
State Adjudication: The McCarran Amendment......................3
Federal Court Dismissal of Indian Water Rights Claims............4
Comprehensiveness Requirement.............................5
General Stream Adjudications................................5
State Administration of Indian Water Rights.....................5
Consequences of the McCarran Amendment.....................6
Litigation and Quantification.....................................6
Practicably Irrigable Acreage (PIA)............................7
Other Proposed Quantification Standards.......................8
Winters and Allotment Rights....................................9
Tribal Use of Its Reserved Water Right............................10
Tribal Regulation of Water.....................................12
Groundwater ................................................13
Conclusion ..................................................14
Pending Settlements.......................................15

Indian Reserved Water Rights: An Overview
I ntr oducti on¹
The dramatic increase of the population in the Western states over the last
century has brought a rise in the demand for water.² Consequently, the drive to secure
water often pits states, municipalities, and individual landowners against each other.
This drive also spurs planning and innovation as officials look for new technological
means to deliver water from wherever it can be found. Frequently, this drive to
provide a stable allocation of water implicates the water rights of Indian tribes.
In planning to ensure that their citizens have access to water in the future,
Western states have had to deal with the doctrine of Indian reserved water rights, also
known as the Winters doctrine. This doctrine holds that when Congress reserves land
for an Indian reservation, Congress also reserves water to fulfill the purpose of the
reservation. When this doctrine is applied to the water laws of the Western states,
tribal rights to water are almost always senior to other claimants because the creation
of most Indian reservations predates most other non-Indian water claims. Therefore,
in order for Western water officials to effectively plan for a stable allocation of water
on which all parties can rely, they must find a way to satisfy the water claims of local
Indian tribes.
Satisfying these claims has proven a difficult task, largely because the Winters
doctrine offers very little guidance regarding just how much water is reserved for the
tribes. The effort started with litigation but, as this report discusses, judges have
generally proven unable to fashion an effective method for balancing the literally
thousands of interests in water rights adjudications. Increasingly, then, these disputes
have moved from the courtroom to the negotiating table, and settlements have now
become the norm.³ Congress must ratify these settlement agreements because many
require federal funding in order to be implemented.
Winters and the Reserved Water Rights Doctrine
The Western states determine water rights using some form of the prior
appropriation doctrine, which holds that rights to water belong to the party that first

¹ This report was originally prepared by Nathan Brooks. It has now been rewritten and
updated by Yule Kim, who is available to answer questions on these issues.
² Because the Western states have less available water than the Eastern states, the reserved
water doctrine plays a much more important role in water management in the West than it
does in the East. This report focuses on the Western states.
³ Regarding this transition, see generally Daniel McCool, Native Waters: Contemporary
Indian Water Settlements and the Second Treaty Era (University of Arizona Press) (2002).

puts the water to “beneficial use.”⁴ As long as the party continues to put that water
to beneficial use, its prior appropriation right remains senior to all other users.⁵ In
other words: first in time, first in right.
In 1908, the Supreme Court added a twist to this system when it announced the
reserved water rights doctrine in Winters v. United States.⁶ There, the Court ruled
that when Congress set aside land for the Fort Belknap Indian Reservation, Congress
also impliedly reserved water to help transform the tribe into a “pastoral and civilized
people.”⁷ The Court reached this conclusion not by looking to the Constitution or
explicit statutory language, but rather by implying a certain congressional intent. To
this day, the Winters doctrine retains this implication.
The Supreme Court has continued to find the same congressional intent with
regard to all federal reservations — tribal or otherwise (e.g., national parks) —
stating that “when the Federal Government withdraws its land from the public
domain and reserves it for a federal purpose, the Government, by implication,
reserves appurtenant water then unappropriated to the extent needed to accomplish
the purpose of the reservation.”⁸ The amount must satisfy both present and future
needs of the reservation.⁹ This reserved water right vests on the date that Congress
reserves the land,¹⁰ and remains regardless of non-use.¹¹ Therefore, because most
Indian reservations were created in the 1800s or early 1900s, these reservations
generally have water rights senior to those of non-Indian claimants under the Western
prior appropriation system.¹²
While Winters established a reserved water right for Indian reservations, for
most of the last century that right amounted to nothing more than “paper water.”¹³

⁴ Waters and Water Rights, § 57.07 (Robert E. Beck, ed., 1991).
⁵ Id.
⁶ 207 U.S. 564 (1908).
⁷ 207 U.S. at 576.
⁸ Cappaert v. United States, 426 U.S. 128, 138 (1976). The Colorado Supreme Court has
described “appurtenant” water to mean water “on, under or touching the reserved lands.”
United States v. City and County of Denver, 656 P.2d 1, 35 (Colo. 1983).
⁹ Arizona v. California, 373 U.S. 546, 600 (1963).
¹⁰ Id. at 600 (1963).
¹¹ Hackford v. Babbit, 14 F.3d 1457, 1461 (10^th Cir. 1994).
¹² The priority date can be even earlier if the water use fits under the category of aboriginal
title. See United States v. Adair, 723 F.2d 1394, 1414 (9^th Cir. 1983) (finding that the tribe’s
water rights accompanying its historical right to hunt and fish did not come into being with
the reservation, but dated instead to “time immemorial.”). The court also found that this
right is not consumptive in nature, but rather “consists of the right to prevent other
appropriators from depleting the stream’s water below a protected level in any area where
the ... right applies.” Id. at 1411 (citing Cappaert, 426 U.S. at 143).
¹³ Indian water rights literature is replete with references to the “paper water”/“wet water”
distinction, which is commonly used to highlight the difference between a right to water
(continued...)

This was because without either a standard for quantifying that right or the
technological means to take advantage of it, Indian tribes had little hope of realizing
actual (i.e., “wet”) water. To remedy this situation, the tribes were forced to seek
assistance from the United States government, which holds most reservation land and
related natural resources in trust for the Indian tribes. Congress has charged the
Interior and Justice Departments with many of its responsibilities as trustee to
advance the water rights of the Indian tribes. However, the federal government is also
charged with advancing the broader national interest in water use. Therefore, there
can be a conflict of interest between Indian and non-Indian interests, which, until
relatively recently, appeared to Indians to weigh almost always in favor of non-Indian
interests, and against the development of tribal water projects.¹⁴ While under normal
fiduciary principles such a conflict would not be tolerated, the Supreme Court has
recognized that the United States in its unique relationship with Indian tribes cannot
be held to the same standards as a private trustee. As the Court put it in a water rights
case involving a conflict in legal representation,
It may well appear that Congress was requiring the Secretary of the Interior to
carry water on at least two shoulders when it delegated to him both the
responsibility for the supervision of the Indian tribes and the commencement of
reclamation projects in areas adjacent to reservation lands. But Congress chose
to do this ... the Government cannot follow the fastidious standards of a private
fiduciary, who would breach his duties to his single beneficiary solely by¹⁵
representing potentially conflicting interests without the beneficiary’s consent.
With the population increasing in the West and the resulting need to secure
access to a stable supply of water, Western states have been forced to address the
senior reserved water rights of the tribes. Against this backdrop, various state, local,
and tribal claimants to water have filled the courts for decades in order to settle the
myriad issues left open by the Supreme Court in Winters. In the process, the question
of which courts possess the power to resolve these issues has been almost as
contentious as the issues themselves.
State Adjudication: The McCarran Amendment
For most of the last century, federal courts had near-exclusive power to
determine Winters rights because sovereign immunity shielded the federal

¹³ (...continued)
versus actually possessing both the water and the means to put it to beneficial use. See, e.g.,
Daniel McCool, Native Waters: Contemporary Indian Water Settlements and the Second
Treaty Era 101 (2002).
¹⁴ For example, the Bureau of Indian Affairs and the Bureau of Reclamation are both within
the Department of the Interior (DOI), which could pose a conflict of interest. In 1970,
President Nixon sent a message to Congress pointing out that when such conflicts within
Interior arise, “[t]here is considerable evidence that the Indians are the losers.” H.R. Doc.^st
No. 363, 91 Cong., 2d Sess. 10 (1970), reprinted at 116 Cong. Rec. 23258, 23261 (1970).
¹⁵ Nevada v. United States, 463 U.S. 110, 128 (1983). See also Cobell v. Babbitt, 91 F.
Supp. 2d 1, 30-31 (D.D.C. 1999) (declining to hold the Secretary of the Interior to common
law fiduciary duties, instead looking purely to statute in determining duties owed).

government from state water rights adjudications.¹⁶ In 1952, however, Congress
passed an appropriations rider waiving the federal government’s sovereign immunity
and permitting the United States to be joined in suits involving the adjudication of
water rights of a river system or other source.¹⁷ Known today as the McCarran
Amendment, the law provides for consent to join the United States “in any suit (1)
for the adjudication of rights to the use of water of a river system or other source, or
(2) the administration of such rights, where it appears that the United States is the
owner of, or is in the process of acquiring water rights under State law, by purchase,
by exchange, or otherwise, and the United States is a necessary party to such suit.”¹⁸
Federal Court Dismissal of Indian Water Rights Claims. The Supreme
Court has held that the McCarran Amendment allows state courts to adjudicate¹⁹
Indian water rights. “The immediate effect of the Amendment is to give consent to
jurisdiction in the state courts concurrent with jurisdiction in the federal courts over²⁰
controversies involving federal rights to the use of water.” Furthermore, the Court
also held that the policy concern of judicial economy underlying the McCarran
Amendment warranted the dismissal of Indian water rights claims filed in federal
courts when there are ongoing, concurrent, and comprehensive state adjudications²¹
available to hear the claims. Specifically, the Supreme Court concluded that the
McCarran Amendment’s main purpose was to designate comprehensive state
adjudications as the primary means to determine water rights claims; allowing
concurrent federal proceedings would thwart this policy goal by creating unnecessary²²
litigation that would lead to duplicative and possibly contradictory judgments. As
a result of federal courts “abstaining” from hearing reserved water rights claims, state
courts are generally the only fora that will hear these claims. For Indian tribes that
have long considered state courts to be hostile, the prospect of having those same

¹⁶ Conference of Western Attorneys General, American Indian Law Deskbook 212 (2d ed.

1998).

¹⁷ Act of July 10, 1952, 66 Stat. 549, 560 (codified at 43 U.S.C. § 666).
¹⁸ 43 U.S.C. § 666(a).
¹⁹ Colorado River Water Conservation District v. United States, 424 U.S. 800, 809-811
(1976) (addressing federal suits brought by the United States in its role as trustee to Indian
tribes). See also Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545, 566-569
(1983) (addressing federal suits brought by Indian tribes).
²⁰ Colorado River Water Conservation District, 424 U.S. at 809.
²¹ Id. at 819. (“The consent to jurisdiction given by the McCarran Amendment bespeaks a
policy that recognizes the availability of comprehensive state systems for adjudication of
water rights.”). See also San Carlos Apache Tribe of Arizona, 463 U.S. at 570.
²² Colorado River Water Conservation District, 424 U.S. at 819 (“[A] number of factors
clearly counsel against concurrent federal proceedings.... This policy is akin to that
underlying the rule requiring that jurisdiction be yielded to the court first acquiring control
of property, for the concern in such instances is with avoiding the generation of additional
litigation through permitting inconsistent dispositions of property.... Indeed, we have
recognized that actions seeking the allocation of water essentially involve the disposition
of property and are best conducted in unified proceedings.”).

courts adjudicate Indian water rights has been one of the primary motivations for
pursuing negotiated settlements.²³
Comprehensiveness Requirement. In order to join the United States as
a party in a state proceeding adjudicating reserved water rights, the McCarran
Amendment requires the proceedings to be “comprehensive.”²⁴ The proceedings must
involve the “whole community of claims,” and not just the water rights of a few
named claimants.²⁵ Factors that contribute to an adjudication’s “comprehensiveness”
include the parties, the types of rights at issue, the definition of the basin to be
included in the adjudication, and the time frame covered by the adjudication.²⁶
General Stream Adjudications. There are several “general stream”
adjudications involving Indian tribes laying claims to water rights. General stream
adjudications are consolidated actions mandated to replace individually filed
lawsuits.²⁷ These adjudications have been instituted to ascertain the extent and
priority of water rights among claimants in prior appropriations states.²⁸ The level
of administrative involvement in these adjudications varies from state to state, but in
most states fact-finding is assigned to administrative bodies, which is then followed
by judicial consideration and confirmation.²⁹ Meanwhile, the geographic scope of a
general stream adjudication varies as well. Some general stream adjudications, such
as the one in Montana, are state-wide in scope. Others are targeted to a particular
river basin, such as the Gila River adjudication in Arizona.³⁰ Since the McCarran
Amendment requires that general stream adjudications be “comprehensive” in order
to assert jurisdiction over the United States and Indian tribes, these adjudications
invariably are complicated and lengthy.
State Administration of Indian Water Rights. While the McCarran
Amendment grants state courts the right to adjudicate Indian water rights, the
question of who has the power to administer water rights determined in a McCarran

²³ See Daniel McCool, Native Waters: Contemporary Indian Water Settlements and the
Second Treaty Era 75-76 (2002).
²⁴ United States v. Oregon, 44 F.3d 758, 763 (9^th Cir. 1994). See also Dugan v. Rank, 372
U.S. 609, 618 (1963); United States v. District Court of Eagle County, 401 U.S. 520, 525
(1971).
²⁵ District Court of Eagle County, 401 U.S. at 525.
²⁶ See generally Peter W. Sly, Reserved Water Rights Settlement Manual 177-184 (1988).
See also Oregon, 44 F.3d at 768-769 (holding that a failure to include groundwater in a state
general stream adjudication does not invalidate the adjudication on “comprehensiveness”
grounds).
²⁷ Lloyd Burton, American Indian Water Rights and the Limits of Law 27 (University Press
of Kansas 1991).
²⁸ Id.
²⁹ See, e.g., Or. Rev. Stat. §§ 539.110, -.150 (1995); Ariz. Rev. Stat. §§ 45-251 to 45-264;
Nev. Rev. Stat. § 533.010 et seq.
³⁰ See In re the General Adjudication of All Rights to Use Water in the Gila River System
and Source (Gila River IV), 989 P.2d 739 (Ariz. 1999).

Amendment adjudication is unclear.³¹ Some argue that the language of the McCarran
Amendment distinguishing between administration and adjudication of water rights
is meant to limit a state’s ability to administer such rights.³² The Wyoming Supreme
Court, however, has held that state courts have the power to administer as well as
adjudicate Indian water rights.³³ Significantly, the court also ruled that an appointed
State Engineer has the power to “monitor” water use under a court’s reserved rights
decree, but enforcement by that same official against either the tribes or the United
States would require a court injunction.³⁴
Consequences of the McCarran Amendment. The McCarran
Amendment allows a state to take a more active role in allocating a resource precious
to all of its citizens. However, the Supreme Court in Winters left many questions
regarding reserved water rights to be determined by other courts. In the wake of the
McCarran Amendment, state courts have become the primary fora to adjudicate water
rights, with different states sometimes providing different answers. This lack of
uniformity is particularly evident in these courts’ attempts to develop “quantification
standards” for determining the precise amount of water reserved by a water right.
Litigation and Quantification
Using the Winters rationale to guide them in their search for a quantification
standard for Indian reservations, courts have generally focused first on each
reservation’s purpose, and then determined the amount of water necessary to fulfill
that purpose. Traditionally, courts addressing this issue have held that the federal
government intended Indians to farm reserved lands, which meant that the purpose³⁵
of an Indian reservation was agricultural. Subsequent judicial attempts to establish
a quantification standard in line with this agricultural purpose have resulted in several³⁶
different types of standards. Prior to the McCarran Amendment, some federal courts
followed the Supreme Court’s lead in Winters and refused to establish a³⁷
quantification standard, while other courts tried a “reasonable needs” approach that
looked to past and present water use as a benchmark for quantification.³⁸ The

³¹ What exactly the power to “administer water rights” entails is not immediately apparent.
The most widely followed definition seems to be the one given by a Nevada Federal District
Court: “To administer a decree is to execute it, to ensure its provisions, to resolve conflicts
as to its meaning, to construe and interpret its language.” United States v. Hennen, 300 F.
Supp. 256, 263 (D. Nev. 1968).
³² See Conference of Western Attorneys General, supra 220-221.
³³ In re General Adjudication of All Rights to Use Water in the Big Horn River System (Big
Horn I), 753 P.2d 76, 114-115 (Wyo. 1988).
³⁴ Id.
³⁵ Conference of Western Attorneys General, supra 194.
³⁶ See, e.g., Note, Indian Reserved Water Rights: the Winters of Our Discontent, 88 Yale L.J.

1689, 1695 (1979).

³⁷ United States v. Ahtanum Irrigation District, 236 F.2d 321 (9^th Cir. 1956); Conrad
Investment Company v. United States, 161 F. 829 (9^th Cir. 1908).
³⁸ See, e.g., United States v. Walker Irrigation District, 104 F.2d 334, 340 (9^th Cir. 1939).

Supreme Court, however, would later approve a specific quantification standard,
which would later be adopted by many state courts.
Practicably Irrigable Acreage (PIA). In Arizona v. California, the Supreme
Court expressed its approval of a Special Master’s use of a fixed calculation of water
needs based on the physical capacity of the reservation land, rather than the number³⁹
of Indians on the reservation. The Special Master based this “practicably irrigable
acreage” (PIA) standard on the assumption that the purpose of an Indian reservation
is agricultural. Starting from that assumption, the Special Master reasoned, and the
Court agreed, that “the only feasible and fair way by which reserved water for the⁴⁰
reservation can be measured is irrigable acreage.” Interestingly, while the Supreme
Court endorsed the Special Master’s use of the PIA standard in Arizona, the Court
did not technically adopt it. As the Court put it, “While we have in the main agreed
with the Master, there are some places we have disagreed and some questions on
which we have not ruled. Rather than adopt the Master’s decree ... we will allow the
parties, or any of them, if they wish, to submit ... the form of decree to carry this⁴¹
opinion into effect.” Because the Supreme Court did not formally adopt the Special
Master’s quantification approach in its opinion, many question whether Arizona⁴²
mandates the use of the PIA standard.
Notwithstanding this debate, the PIA standard is today by far the favorite
judicial method for quantifying Indian reserved water rights,⁴³ and lower courts have
fashioned a three-step process for determining a reservation’s practicably irrigable
acreage.⁴⁴ First, soil scientists determine the largest area of arable land that can⁴⁵
reasonably be considered for an irrigation project. Second, engineers develop an
irrigation system based on the available water supply and the arable land base.⁴⁶
Third, economists evaluate the crop patterns, yields, pricing, and the net returns for
crops that the irrigation project might support.⁴⁷

³⁹ Arizona v. California, 373 U.S. 546, 601 (1963).
⁴⁰ Id. at 601.
⁴¹ Id. at 602.
⁴² See, e.g., Jennele Morris O’Hair, The Federal Reserved Rights Doctrine and Practicably
Irrigable Acreage: Past, Present, and Future, 10 BYU J. Pub. L. 263, 273 (1996). The
Supreme Court had an opportunity to clarify its position regarding the PIA standard in
Wyoming v. United States, but an evenly split Court (made possible by Justice O’Connor’s
recusal) merely affirmed the Wyoming Supreme Court’s judgment without opinion.
Wyoming v. United States, 492 U.S. 406 (1989).
⁴³ See Barbara A. Cosens, The Measure of Indian Water Rights: The Arizona Homeland
Standard, Gila River Adjudication, 42 Nat. Resources J. 835, 842-844 (Fall 2002).
⁴⁴ See, e.g., Fort Mojave Indian Tribe v. United States, 32 Fed. Cl. 29, 35 (1994).
⁴⁵ Id.
⁴⁶ Id.
⁴⁷ Id. The Fort Mojave court went on to say that “In general, the PIA analysis is grounded
upon project development with the overall goal of maximizing the income from the project
and not maximizing the water claim.”

Other Proposed Quantification Standards. While the widespread judicial
adoption of the PIA standard provides parties with some degree of certainty as to how
Indian water rights will be quantified by courts, that standard has been subjected to
criticism. First, non-Indian appropriators argue that agricultural water use is highly
consumptive, and therefore the PIA standard favors Indians and is insensitive to state
and private appropriators.⁴⁸
On the other side of the argument, some assert that the PIA standard is unfair
to Indians, in that linking water rights to agriculture is anachronistic given the
modern agricultural economy.⁴⁹ Others contend that the PIA standard does not take
into account the realities of modern-day life and the diversity of reservations’
geographies and purposes.⁵⁰ Agreeing with both sides of the PIA debate in some
respects, the Arizona Supreme Court in its 2002 Gila River ruling abandoned
agriculture as the sole purpose for Indian reservations and found instead that the
essential purpose of an Indian reservation is to establish a “permanent home and
abiding place.”⁵¹ Citing various water settlements, the court found its construction
necessary “to achieve the twin goals of Indian self-determination and economic self-
sufficiency.”⁵² In quantifying water rights in line with that purpose, the court held as
proper a reservation-by-reservation analysis of, among other things, (1) the tribe’s
history and culture; (2) the reservation’s geography and natural resources, including
groundwater availability; (3) the reservation’s physical infrastructure, human
resources, technology, and capital; (4) past water use; and (5) a tribe’s present and⁵³
projected population.
While the Arizona Supreme Court’s approach addresses many of the criticisms
leveled at the PIA standard, its “reservation-by-reservation” focus does not lend itself
to a specific formula, and so could lead to more uncertainty for authorities trying to
account for Indian reserved water rights when planning large water projects. Of
course, the Gila River decision has no precedential value in other states, and it does
not appear that the Arizona Supreme Court’s Gila River ruling has affected the other
Western states’ use of the PIA standard.

⁴⁸ See Peter W. Sly, Reserved Water Rights Settlement Manual 104 (1988).
⁴⁹ See, e.g., Peter W. Sly, Reserved Water Rights Settlement Manual 104 (1988).
⁵⁰ See, e.g., Barbara A. Cosens, The Measure of Indian Water Rights: The Arizona
Homeland Standard, Gila River Adjudication, 42 Nat. Resources J. 835, 837 (Fall 2002)
(“Whereas southern tribes located in alluvial valleys near a large surface water source [e.g.
the Colorado River] are entitled under an agricultural purpose quantified by the PIA method
to ample water, tribes in more northern climes or mountainous terrain are left with
insufficient rights to meet basic drinking water needs”).
⁵¹ In re General Adjudication of All Rights to Use of Water in the Gila River System and
Source (Gila River V), 35 P.3d 68, 74 (Ariz. 2002) (quoting Winters, 207 U.S. at 565).
⁵² Id. at 76.
⁵³ Id. at 79-80.

Winters and Allotment Rights
While the task of quantifying Winters water often frustrates judges,
adjudications involving Winters rights become even more confusing when allotments
are involved. In an effort to assimilate Indians into mainstream American culture,
Congress in 1887 passed the General Allotment Act⁵⁴ — also known as the Dawes
Act — authorizing the President to allot portions of reservation lands to individual
Indians. Title would then remain in the United States in trust for 25 years, after which
it would pass to the individual Indian allottees free from all encumbrances.⁵⁵ The act
also authorized the Secretary of the Interior to distribute surplus reservation land for
the purpose of non-Indian settlement. After the 25-year trust period was over, many
allottees lost their lands either through direct sales, foreclosures, or tax sales.⁵⁶ These
losses combined with the Secretary’s sale of surplus lands to non-Indians produced
a “checkerboard” pattern of tribal trust/individual Indian trust/non-trust land
ownership within reservations.⁵⁷
While many reservations escaped allotment and its consequences, this
“checkerboard” pattern of ownership on some reservations persists and presents
serious complications in reserved water rights disputes. The Supreme Court ruled in
1939 that when tribal land is converted into allotments, the trust allottees succeed to
some portion of tribal waters needed for agriculture.⁵⁸ A subsequent Ninth Circuit
case, Colville Confederated Tribes v. Walton, built on that reasoning and held that
a trust allottee’s share of a tribe’s reserved water is equal to the percentage of the
entire reservation’s irrigable acreage that is located on the trust allottee’s land.⁵⁹ The
Walton court also found that a non-Indian successor in interest to a trust allottee
acquires that allotment’s reserved water right, but loses that right if the non-Indian
successor does not put the water to beneficial use.⁶⁰ The federal cases addressing this
issue have considered allotment rights only for irrigation purposes. It is not clear how
these holdings relate to reservations of land for non-agricultural purposes.

⁵⁴ Act of February 8, 1887, 24 Stat. 388 (codified as amended at 25 U.S.C. §§ 331-334, 339,

341-342, 348-349, 354, 381). See also Felix S. Cohen, Handbook of Federal Indian Law 75-

84 (Nell Jessup Newton, ed., LexisNexis 2005); Kent Carter, The Dawes Commission
(Ancestry, Incorporated 1999).
⁵⁵ Act of February 8, 1887, 24 Stat. 388. See also Felix S. Cohen, supra 1041. There are
several other allotment acts and treaties specific to particular tribes, some with longer or
shorter trust periods than that of the Dawes Act.
⁵⁶ William C. Canby, American Indian Law in a Nutshell 22 (3d ed. 1998).
⁵⁷ See Cohen, supra 78 (“Reservations became checkerboards as the sale of surplus lands
to whites isolated individual Indian allotments.”).
⁵⁸ United States v. Powers, 305 U.S. 527, 532 (1939). Generally, under the Nonintercourse
Act (25 U.S.C. § 177), Indians are forbidden from transferring tribal land without federal
government approval, and this prohibition likely applies to the transfer of non-allotted
reserved water rights also. See Conference of Western Attorneys General, supra 207-209.
⁵⁹ Colville Confederated Tribes v. Walton, 647 F.2d 42, 51 (9^th Cir. 1981).
⁶⁰ Id.

Tribal Use of Its Reserved Water Right
As the Gila River decision discussed earlier illustrates, a court’s answer to the
threshold question of purpose can have far-reaching effects. The Arizona Supreme
Court’s finding of a “permanent homeland” purpose not only led the court to a new
method of quantification, but also allowed the court to put a premium on flexibility
in how tribes use their Winters water. As the court put it, “Just as [the U.S.] economy
has evolved, nothing should prevent tribes from diversifying their economies if they
so choose and are reasonably able to do so. The permanent homeland concept allows
for this flexibility and practicality.”⁶¹ This is consistent with the opinion of the
Special Master in Arizona v. California, who stated that, even though he found the
reservation’s purpose to be agricultural, that did not mean that the reserved water had
to be put to agricultural use.⁶²
The Gila River court specifically rejected the approach taken by the Wyoming
Supreme Court ten years earlier in the Big Horn adjudication.⁶³ In Big Horn III, the
court found that because agriculture was the primary purpose for the reservation of
land for the Indians, if the tribe wanted to use the water for some other purpose, such
as instream flow, the tribe must do so according to state prior appropriation
doctrine.⁶⁴ In reaching its conclusion, the Wyoming Supreme Court relied on the
primary-secondary purpose test used in United States v. New Mexico,⁶⁵ a Supreme
Court case dealing with a non-Indian federal reservation, specifically a national
forest. The Court in New Mexico found that the United States, in setting aside federal
lands for the Gila National Forest, reserved use of the Rio Mimbres River only where
necessary to preserve timber and to secure favorable water flows, and therefore did
not have the reserved right for aesthetic, recreational, wildlife preservation, or stock
watering purposes.⁶⁶ As the Court stated, “Where water is necessary to fulfill the very
purposes for which a federal reservation was created, it is reasonable to conclude,
even in the face of Congress’ express deference to state water law in other areas, that
the United States intended to reserve the necessary water. Where water is only
necessary for a secondary use of the reservation, however, there arises the contrary
inference that Congress intended, consistent with its other views, that the United
States would acquire water in the same manner as any other public or private
appropriator.”⁶⁷ The Big Horn court applied the New Mexico rationale to Indian
reservations and greatly constrained the ability of the tribe to adjust its water use
according to modern day realities.

⁶¹ Gila River V, 35 P.3d 68, 76 (Ariz. 2001).
⁶² S. Rifkind, Report of the Special Master - Arizona v. California 265 (1962).
⁶³ In re the General Adjudication of All Rights to Use Water in the Big Horn River System
(Big Horn III), 835 P.2d 273 (Wyo. 1992).
⁶⁴ Id. at 278-279.
⁶⁵ 438 U.S. 696 (1978).
⁶⁶ Id. at 718.
⁶⁷ Id. at 702.

The Arizona Supreme Court in the Gila River adjudication rejected the Big
Horn approach on two grounds. First, the Arizona Supreme Court said there are
enough significant differences between Indian and non-Indian reservations to
preclude applying New Mexico’s primary-secondary purpose test to Indian water
rights cases. The court found that the underlying federal policy of Indian self-
sufficiency, necessitates an interpretation of Indian reserved rights that is broader
than that of non-Indian reserved rights.⁶⁸ Secondly, the court said, even if the New
Mexico test applied, the “permanent homeland” purpose would be primary, not
secondary.⁶⁹
The debate over what a tribe can do with its Winters water gets even more
contentious when the issue of off-reservation water marketing is broached. The
geography of Indian and non-Indian settlement that emerged from the era of
westward expansion is such that today many tribes control or claim large amounts of
water upstream from major metropolitan areas.⁷⁰ In theory, then, certain tribes could
divert water for their own uses and leave little for the downstream cities. Given this
situation, such tribes stand to make a good deal of money by agreeing not to use their
water in deference to downstream interests. Marketing water is especially attractive
to tribes that possess the rights to reservation water, but lack the infrastructure and
resources necessary to exploit it.⁷¹ Under the Nonintercourse Act, tribes are
restricted from alienating trust property without statutory authorization. There is a
limited exception to the Nonintercourse Act, however, which authorizes tribes, with
the approval of the Secretary of the Interior, to lease trust land for “public, religious,
educational, recreational, residential, or business purposes, including the
development or utilization of natural resources in connection with operations under
such leases.”⁷² The use of the term “natural resources” seems to suggest that tribes
need only seek the Secretary’s approval to market their water.
Even so, difficult questions persist regarding the legality and policy of
marketing Winters water. First, because most tribes have not had their Winters rights
quantified, many individuals who live downstream from reservations may already
have developed substantial reliance interests on the free use of the reservation’s
reserved waters. The prospect of having to pay for water that has long been free
predictably sparks vehement opposition.⁷³ Secondly, the threshold question in water
rights cases is often, what is the purpose of the reservation? As the Wyoming
Supreme Court held, it is very difficult to link the off-reservation marketing of water
to the reservation’s original purpose, especially if that purpose is an agricultural

⁶⁸ Gila River V, 35 P.3d at 77.
⁶⁹ Id.
⁷⁰ For a discussion of the different causes of this state of affairs, see Daniel McCool, Native
Waters: Contemporary Indian Water Settlements and the Second Treaty Era 161-163 (2002).
⁷¹ See, e.g., Edmund J. Goodman, Indian Tribal Sovereignty and Water Resources:
Watersheds, Ecosystems, and Tribal Co-management, 20 J. Land Resources & Envtl. L.

185, 208 (2000).

⁷² 25 U.S.C. § 415.
⁷³ For this reason, all of the marketing provisions approved so far in water settlement acts
specify water delivered from federal projects rather than reserved water.

one.⁷⁴ If courts move toward the Arizona Supreme Court’s “permanent homeland”
approach, water marketing might rest on a stronger foundation.
Tribal Regulation of Water
The Supreme Court has held that Indian tribes, as limited sovereigns, have the
right to regulate the conduct of their members,⁷⁵ a right that presumably extends to
the regulation of members’ use of tribal water. States must respect a tribe’s right to
order its own affairs,⁷⁶ and even those states that have assumed criminal and civil
jurisdiction over Indian tribes pursuant to Public Law 280⁷⁷ are expressly prohibited
from regulating Indian trust water rights.⁷⁸
The real controversy with tribal regulation of water arises when tribes attempt
to extend their authority to nonmembers. Nonmember water rights arise in two ways:
first, as mentioned above, a trust allottee holds rights to a portion of reservation
water; second, and even more complicated, homesteaders have rights to reservation
water. In the late 1800s and early 1900s some reservations were opened up to the
public, and homesteaders moved in to purchase portions of reservation land.⁷⁹ These
homesteaders hold state appropriative water rights,⁸⁰ which must be reconciled with
the federal reserved water rights of the tribe.
In Montana v. United States, the Supreme Court held that a tribe may only
regulate the on-reservation activities of nonmembers on non-Indian land within the
reservation if (1) the nonmembers have entered into consensual relationships (e.g.,
contracts, leases, etc.) with the tribe; or (2) nonmember conduct on the reservation
“threatens or has some direct effect on the political integrity, economic security, or
health or welfare of the tribe.”⁸¹ Citing their inherent sovereign powers over tribal
land and resources, as well as the second Montana exception, tribes have enacted

⁷⁴ Big Horn III, 753 P.2d 76, 100 (1988).
⁷⁵ United States v. Wheeler, 435 U.S. 313, 322 (1978). The Court went on to clarify that the
power to punish tribal offenders is an exercise of retained tribal sovereignty. As such, the
power “exists only at the sufferance of Congress and is subject to complete defeasance. But,
until Congress acts, the tribes retain their sovereign powers. In sum, Indian tribes still
possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication
as a necessary result of their dependent status.” Id. at 323.
⁷⁶ Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978).
⁷⁷ Public Law 280 gave several states, and provided a means for all other states to obtain,
extensive criminal and civil jurisdiction over Indians residing within Indian Country. See
P.L. 83-280, 67 Stat. 588 (1953).
⁷⁸ 25 U.S.C § 1322.
⁷⁹ See Peter W. Sly, Reserved Water Rights Settlement Manual 138 (1988).
⁸⁰ United States v. Anderson, 736 F.2d 1358, 1363-1365 (9^th Cir. 1984).
⁸¹ United States v. Montana, 450 U.S. 544, 565 (1981). For a discussion of the Montana
doctrine, see CRS Report RS22820, Indian Tribal Civil Jurisdiction’s Reach Over
Non-Indians: Plains Commerce Bank v. Long Family Land and Cattle Co., Inc., by Yule
Kim.

water codes purporting to regulate all who use reservation water, sometimes
including nonmembers.
The law governing tribal authority to enact water codes regulating nonmembers
is unclear, engendering a great deal of confusion among tribes and private water
appropriators.⁸² The Department of the Interior (DOI) was sufficiently worried about
the potential for conflict inherent in such codes that in 1975 the Secretary imposed
a moratorium⁸³ on all DOI approvals of such water codes submitted by tribes subject
to the Indian Reorganization Act (IRA).⁸⁴ The moratorium is still in effect, although
DOI made one exception in 1985 when it approved the tribal water code included in
the water rights compact between the State of Montana and the Assiniboine and
Sioux Tribes of the Fort Peck Reservation.⁸⁵
The status of codes enacted by tribes not subject to the IRA is yet to be
determined. The available case law, however, suggests that tribal sovereignty alone
would not be enough to support application of tribal water codes to nonmembers. In
Holly v. Yakima Indian Nation, a tribe enacted a water code that purported to regulate
all use of excess waters on fee lands within the reservation. The court held that
nonmember use of excess water on such lands did not implicate the concerns of the
second Montana exception, and so the exception does not apply.⁸⁶ In addition, in
Strate v. A-1 Contractors, the Supreme Court seemed to limit the second Montana
exception to those situations where state regulation would impinge on “the right of
reservation Indians to make their own laws and be ruled by them.”⁸⁷ It does not
appear that tribal water codes regulating nonmembers would satisfy that requirement.
Groundwater
Though the Supreme Court has never directly determined whether a
reservation’s groundwater is included in its reserved water right, the Court has held
that when the pumping of groundwater causes surface water to drop, the federal

⁸² See generally Thomas W. Clayton, The Policy Choices Tribes Face When Deciding
Whether to Enact a Water Code, 17 Am. Indian L. Rev. 523 (1992).
⁸³ DOI has told tribes that the department will not approve their water codes until DOI
promulgates regulations pursuant to 25 U.S.C. § 381, which DOI has yet to do. See Holly
v. Totus, 655 F. Supp. 548, 551-552 (E.D. Wash. 1983). See also Conference of Western
Attorneys General, supra 224, n. 250; Thomas W. Clayton, The Policy Choices Tribes Face
When Deciding Whether to Enact a Water Code, 17 Am. Indian L. Rev. 523, 548 (1992);
Peter W. Sly, Reserved Water Rights Settlement Manual 72 (1988).
⁸⁴ 25 U.S.C. § 461 et seq. Congress passed the IRA in an effort to encourage tribal self-
government, authorizing tribes to adopt constitutions and by-laws to be ratified by members
of the tribe. In order to be effective under the IRA, these constitutions and by-laws must be
approved by the Secretary of the Interior.
⁸⁵ Memorandum from Ross Swimmer to Secretary of the Interior requesting approval of Fort
Peck Water Code, October 7, 1986.
⁸⁶ Holly v. Confederated Tribes and Bands of the Yakima Indian Nation, 655 F. Supp. 557,

559 (E.D. Wash. 1985).

⁸⁷ Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997) (quoting Williams v. Lee, 358 U.S.

217, 220 (1959)).

government “can protect its water from subsequent diversion, whether the diversion
is of surface or groundwater.”⁸⁸ However, most Western states handle groundwater
and surface water under separate regulatory and judicial controls,⁸⁹ and a
determination of rights to groundwater is not required for a McCarran Amendment
adjudication to meet its comprehensiveness requirement.⁹⁰ The Wyoming Supreme
Court, while acknowledging that “the logic that supports a reservation of water to
fulfill the purpose of the reservation also supports the reservation of groundwater,”
refused to extend the Winters doctrine to include groundwater because no other court
had explicitly done so.⁹¹ Several courts, however, have implicitly recognized a
reserved groundwater right.⁹² In 1999, the Arizona Supreme Court took the position
that the Winters doctrine applies to groundwater only when “other waters are
inadequate to accomplish the purpose of a reservation.”⁹³ This analysis, the court
recognized, essentially dissolves the distinction between surface and groundwater:
“The significant question for the reserved rights doctrine is not whether water runs
above or below the ground but whether it is necessary to accomplish the purpose of
the reservation.”⁹⁴ This issue is by no means settled.
Conclusion
In the century since the Supreme Court promulgated the reserved rights doctrine,
the judiciary have had difficulties in their attempts to resolve the myriad issues that
the Court in Winters left unresolved. This is not surprising, given that federal, state,
and tribal governments and tens of thousands of people have significant stakes in the
outcomes.
Many parties have concluded that issues as complex and important as those
outlined in this report may be better resolved by settlement, with each party
compromising in order to achieve its most important goals. As the drive for a
dependable water supply in the West has grown stronger, so has the desire to quickly
settle tribal water claims in order that Western water officials can effectively and
accurately plan for the future. In addition, tribes understand the negotiating power
that comes with a reserved water right — power that can be leveraged to address
other tribal needs. This transition from courtroom to negotiating table brings with it
a larger role for Congress, which must approve a settlement if the settlement requires
new federal appropriations.

⁸⁸ Cappaert, 426 U.S. at 142-143.
⁸⁹ See Peter W. Sly, Reserved Water Rights Settlement Manual 181-182 (1988).
⁹⁰ See United States v. Oregon, 44 F.3d 758, 768-769 (9^th Cir. 1994).
⁹¹ Big Horn I, 753 P.2d 76, 99 (Wyo. 1988). In addition, a federal appeals court has held
that a failure to include groundwater in a state general stream adjudication does not
invalidate the adjudication on “comprehensiveness” grounds. Oregon, 44 F.3d at 768-769.
⁹² See Gila River Pima-Maricopa Indian Community v. United States, 695 F.2d 559 (D.C.
Cir. 1982); Nevada v. United States, 279 F.2d 699 (9^th Cir. 1960); In re Determination of
Conflicting Rights, 484 F. Supp. 778 (D. Ariz. 1980); Tweedy v. Texas Co., 286 F.Supp.

383, 385 (D. Mont. 1968).

⁹³ Gila River IV, 989 P.2d at 748.
⁹⁴ Id., at 747.

Pending Settlements. Congress has approved a number of Indian water
rights settlements.⁹⁵ In addition, various tribes have negotiated settlement agreements
with states that have not been approved by Congress. The Fort Peck Indian
Reservation in Montana, for example, has only been approved by the Department of
the Interior, and does not require congressional approval. On the other hand, the Fort
Belknap Indian Reservation, also in Montana, calls for congressional approval.
Several other settlements are being actively considered by the 110^th Congress.
^!H.R. 5293/S. 462 would approve the water rights settlement of the
Shoshone-Paiute Tribes of the Duck Valley Indian Reservation in
Nevada.⁹⁶
^!S. 3355 would authorize the Crow Tribe water rights settlement
reached between the Crow Tribe and the state of Montana.⁹⁷
^!H.R. 1970/S. 1171 would authorize the Navajo Nation Water Rights
Agreement.
^!S. 3381 would provide several water right settlements. Title I of the
act would authorize the Aamodt Litigation Settlement Act by
creating the Pojoaque Basin Water Regional Water System, and
would also approve the water rights settlements of the Nambe
Pueblo, Pojoaque Pueblo, San Ildefonso Pueblo, and Tesuque
Pueblo. Title II of the act would approve the water rights settlement⁹⁸

of the Taos Pueblo.
⁹⁵ Soboba Band of Luiseno Indians Settlement Act (P.L. 110-297); Gila River Indian
Community Water Rights Settlement Act (Title II of P.L. 108-451); Southern Arizona Water
Rights Settlement (Tohono O’odham Nation) (Title III of P.L. 108-451); Nez Perce/Snake
River Water Rights Act (P.L. 108-447, Division J, Title X); Zuni Indian Tribe Water Rights
Settlement Act (P.L. 108-34); Shivwits Band of the Paiute Tribe of Utah Water Rights
Settlement Act (P.L. 106-263); Chippewa Cree Tribe of the Rocky Boy’s Reservation Indian
Reserved Water Rights Settlement Act (P.L. 106-163); Yavapai-Prescott Indian Tribe Water
Rights Settlement Act (Title I of P.L. 103-434); San Carlos Apache Water Rights Settlement
Act (Title XXXVII of P.L. 102-575); Jicarilla Apache Tribe Indian Water Rights Settlement
Act (P.L. 102-441); Northern Cheyenne Indian Reserved Water Rights Settlement Act (P.L.

102-374); Fort McDowell Indian Community Water Rights Settlement Act (P.L. 101-628);

Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act and the Pyramid
Lake/Truckee-Carlson Water Rights Settlement Act (Titles I and II, respectively, of P.L.
101-618); Colorado Ute Indian Water Rights Settlement Act (P.L. 100-585); San Luis Rey
Indian Water Rights Settlement Act (Title I of P.L. 100-675); Salt River Pima-Maricopa
Indian Community Water Rights Settlement Act (P.L. 100-512); Ak-Chin Indian Water
Rights Settlement Act (P.L. 98-530); Southern Arizona Water Rights Settlement Act (P.L.

97-293).

⁹⁶ H.R. 5293, 110^th Cong. (2008); S. 462, 110^th Cong. (2007).
⁹⁷ S. 3355, 110^th Cong. (2008).
⁹⁸ S. 3381, 110^th Cong. (2008).