Replies

Indian and Forest Service “reserves” are entitled to the amount of water to accomplish the purpose of the reservation dated to the date the land was withdrawn into federal reserves. It is called the Winter’s Doctrine:

Winters v. United States (207 U.S. 564 (1908) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=207&invol=564

Reserved Water Rights. The Court upheld the power of the federal government to exempt waters from appropriation under state water law, and held that the government had in fact reserved the waters of the Milk River in order to fulfill the purposes of the agreement between the Indians and the United States. The case dealt only with current needs and did not address the future needs of the Indians. Skeem v. United States, 273 F. 93 (9th Cir. 1921)(applying Winters Doctrine to allotted lands;)

“Reserved” water rights are unlike riparian rights or prior appropriation rights, although they contain elements of both. For example, like riparian rights, reserved rights are appurtenant to land; that is, land ownership is the basis of the right. Also like riparian rights, reserved rights are not lost by nonuse. But reserved water can be used on nonriparian lands. And like prior appropriation rights, reserved rights have priority dates which reflect the security of the right. . . . However, the priority date for reserved rights is the date of the reservation or earlier, not the date of diversion, as in the case of most appropriation rights.

The chief characteristic of reserved rights is that they are federal rights, grounded on the (mostly implied) intent of the federal government to reserve water for its purposes. This characteristic serves to distinguish reserved rights from both prior appropriation and riparian rights. [In Re: The general Adjudication of all rights to use water in the Big Horn System and all other Sources, State of Wyoming Case Number: 00-296 Decided: 06/14/2002]

In CA, most reservations were created by Executive Order. Treaties ceding land were NOT ratified by Congress because aboriginal rights (except for a few publos) were considered terminated while under Mexican Rule and the tribes failed to make claims when the land settlement commission was convened after the Treaty of Guiadalupe Hidalgo.

There were several lawsuits and CA tribes were given some monetary consideration for the loss without affirmation of any aboriginal claim.

In Oregon, however, the tribes were considered to cede territory to the U.S. through treaty and they retained their water rights dating to time immemorial. (See the Adair cases.)