Order Code RL32198
CRS Report for Congress
Received through the CRS Web
Indian Reserved Water Rights:
An Overview
January 12, 2004
Nathan Brooks
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Indian Reserved Water Rights: An Overview
Summary
With the dramatic population increase in the West over the last thirty years, the
Western states have been under increasing pressure from their citizens to secure
future access to water. In planning to meet this goal, however, Western officials
have had to confront a heretofore obscure doctrine of water law: 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 took 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
require Congressional authorization in order to be valid - are fast becoming the norm.
This report provides an overview of the legal issues surrounding Indian reserved
water rights disputes.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Winters and the Reserved Water Rights Doctrine . . . . . . . . . . . . . . . . . . . . . 2
The McCarran Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Litigation and Quantification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Winters and Allottee Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tribal Use of Its Reserved Water Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tribal Regulation of Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Groundwater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Ongoing Adjudications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Pending Settlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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Indian Reserved Water Rights: An Overview
Introduction
“When the well is dry,” wrote Benjamin Franklin, “we learn the worth of
water.”1 The people of the arid American West have always lived in fear of a dry
well, and the dramatic increase in the Western population over the last century has
brought with it a rise in the number of mouths clamoring for water.2 Consequently,
the drive to secure water often pits states, municipalities, and individual landowners
against each other in epic political struggles. This drive also spurs planning and
innovation as officials look for new technological means to deliver water from
wherever it can be found. As a result, we have water projects like the Central Utah
Project (CUP) and the massive Central Arizona Project (CAP).
In planning to ensure that their citizens have access to water in the future,
Western states have had to confront a heretofore obscure doctrine of water law: 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.
Satisfying these claims has proven a difficult task, largely because the Winters
doctrine offers very little guidance regarding just how much water the tribes are
entitled to. The effort started with litigation but, as this report will discuss, judges
have 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 are fast
becoming the norm.3 Because of the federal government’s unique role with respect
to Indian tribes, Congress must ratify these settlement agreements in order for them
to be valid. As more and more of these settlements come to Congress for approval,
1 Benjamin Franklin, Poor Richard’s Almanack (1746 ed.).
2 Studies done by the Western Water Policy Review Advisory Commission found that, from
1972 to 1997, the 17 Western states saw a 32% increase in population, compared to the
national average of 19%. In addition, those same studies estimated that the current
population of the Western states will increase another 25% by the year 2022. Denise Fort,
The Western Water Policy Review Advisory Commission: Another Look at Western Water,
37 Nat. Resources J. 909, 915 (Fall 1997).
3 Regarding this transition, see generally Daniel McCool, Native Waters: Contemporary
Indian Water Settlements and the Second Treaty Era (2002).

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it is important for legislators to have an understanding of the Winters doctrine and the
very complicated legal issues surrounding it.

Winters and the Reserved Water Rights Doctrine
The Western states all determine water rights using some form of the prior
appropriation doctrine, which holds that rights to water belong to the party that first
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
Many commentators condense the entire doctrine, somewhat glibly, into six words:
first in time, first in right.
In 1908, the Supreme Court added a complicated twist to this system when it
promulgated what came to be known as the reserved 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 It is important to stress
here that 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 remains such an implication.
The Supreme Court has continued to imply 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 1800's or early 1900's, such reservations are
generally both first in time and first in right under the Western prior appropriation
system.12
4 David H. Getches, Water Law in a Nutshell 6 (3d ed. 1997).
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
held “appurtenant” water to be that 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 (10th Cir. 1994).
12 The priority date can be even earlier if the water use fits under the category of aboriginal
title. In United States v. Adair, 723 F.2d 1394, 1414 (9th Cir. 1983), the Ninth Circuit found
(continued...)

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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 as
many took to calling it, because without either a standard for quantifying that right
or the technological means to take advantage of it, Indian tribes had little hope of
seeing a drop of 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 property 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.14 However, these departments are also charged with
advancing the broader national interest in water use, creating a conflict of interest
which, until relatively recently, almost always weighed in favor of non-Indian
interests, and against the development of tribal water projects.15 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 by
representing potentially conflicting interests without the beneficiary’s consent.16
With the population increasing in the West and the resulting need to secure
access to water, Westerners were forced to deal with the senior claims of the tribes
12 (...continued)
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 v. United States, 426 U.S. 128, 143
(1976)).
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
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 Id, at 597.
15 The most glaring example of this conflict is the fact that the Bureau of Indian Affairs and
the Bureau of Reclamation are both within the Department of the Interior. 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.
No. 363, 91st. Cong., 2d Sess. 10 (1970), reprinted at 116 Cong. Rec. 23258, 23261 (1970).
16 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).

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holding reserved water rights. Against this backdrop, various state, local, and tribal
claimants to water have filled the courts for decades in order to settle the myriad of
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.
The McCarran Amendment
For most of the last century, the doctrine of sovereign immunity shielded tribes
and the federal government from state water rights adjudications, and so federal
courts had near-exclusive power to determine Winters rights.17 In 1952, however,
Congress passed an appropriations rider waiving the federal government’s sovereign
immunity and permitting joinder of the United States in suits involving the
adjudication of water rights of a river system or other source.18 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.”19 In a momentous 1976 decision, the Supreme Court held that the
McCarran Amendment allows state courts to adjudicate Indian water rights where the
United States is sued in its role as trustee for the tribes.20 For Indian tribes that have
long considered state courts to be hostile territory, the prospect of having those same
courts adjudicate Indian water rights has been one of the primary motivations for
pursuing negotiated settlements.21
In its decision allowing state court adjudications of tribal water rights under the
McCarran Amendment, the Supreme Court held that the policy behind the
amendment - namely, the avoidance of piecemeal adjudication of water rights in a
river system - requires that state court adjudications under the McCarran Amendment
must be “comprehensive” in order to be valid. As the Court put it, “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.”22
Factors that contribute to a particular 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.23
17 Conference of Western Attorneys General, American Indian Law Deskbook 212 (2d ed.
1998).
18 Act of July 10, 1952, 66 Stat. 549, 560 (codified at 43 U.S.C. § 666).
19 43 U.S.C. § 666(a).
20 Colorado River Water Conservation District v. United States, 424 U.S. 800, 811 (1976).
21 See Daniel McCool, Native Waters: Contemporary Indian Water Settlements and the
Second Treaty Era 75-76 (2002).
22 Colorado River Water Conservation District v. United States, 424 U.S. 800, 819 (1976).
23 See generally Peter W. Sly, Reserved Water Rights Settlement Manual 177-184 (1988).
(continued...)

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While the law is clear that 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 Amendment adjudication is not
so clear.24 Some argue that the above-quoted 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.25 The Wyoming Supreme Court has
held, though, that state courts have the power to administer as well as adjudicate
Indian water rights.26 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 judicial action.27
The benefit of the McCarran Amendment is that it allows a state to take a more
active role in the determination of a resource so precious to all of that state’s citizens.
As discussed above, 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, most of the courts to take up these questions have been
various state judicial bodies, with different states sometimes providing very different
answers. This lack of uniformity breeds confusion, which is nowhere more evident
than in the courts’ handling of the quantification problem.
Litigation and Quantification
Using the Winters rationale to guide them in their search for a quantification
standard, courts have generally focused first on each reservation’s purpose, and then
determined the amount of water necessary to fulfill that purpose. Until recently,
virtually every court to consider the question of a reservation’s purpose held that
purpose to be agricultural, in that the federal government, in reserving the land,
intended that the Indians who inhabited the reservation would cultivate the land in
order to become self-sufficient.28 Subsequent judicial attempts to establish a
quantification standard in line with this agricultural purpose have resulted in some
23 (...continued)
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.
United States v. Oregon, 44 F.3d 758, 768-769 (9th Cir. 1994).
24 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 over thirty years ago: “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).
25 See Conference of Western Attorneys General, American Indian Law Deskbook 220-221
(2d ed. 1998).
26 In re General Adjudication of All Rights to Use Water in the Big Horn River System, 753
P.2d 76, 114-115 (Wyo. 1988).
27 Id.
28 Conference of Western Attorneys General, American Indian Law Deskbook 194 (2d ed.
1998).

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standards, but also more confusion.29 While some courts followed the Supreme
Court’s lead in Winters and refused to establish a quantification standard,30 other
courts tried a “reasonable needs” approach that looked to past and present water use
as a benchmark.31
The Supreme Court made its most significant contribution to the quantification
debate in Arizona v. California, in which the Court expressed its approval of the
Special Master’s use of a fixed calculation of water needs based on the physical
capacity of the reservation land, rather than the number of Indians on the
reservation.32 The Special Master based this “practicably irrigable acreage” (PIA)
standard, as it has come to be known, on the aforementioned 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 the reservation can be measured is irrigable acreage.”33
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 this opinion into effect.”34 This unusual set of
facts has led many to question the precedential value of the Court’s decision in
Arizona.35
Notwithstanding the debate over Arizona’s precedential value, the PIA standard
is today by far the favorite judicial method for quantifying Indian reserved water
rights,36 and lower courts have fashioned a three-step process for determining a
reservation’s practicably irrigable acreage.37 First, soil scientists determine the
largest area of arable land that can reasonably be considered for an irrigation
29 See, e.g., Note, Indian Reserved Water Rights: the Winters of Our Discontent, 88 Yale L.J.
1689, 1695 (1979).
30 United States v. Ahtanum Irrigation District, 236 F.2d 321 (9th Cir. 1956); Conrad
Investment Company v. United States, 161 F. 829 (9th Cir. 1908).
31 See, e.g.,United States v. Walker Irrigation District, 104 F.2d 334, 340 (9th Cir. 1939).
32 Arizona v. California, 373 U.S. 546, 601 (1963).
33 373 U.S. at 601.
34 373 U.S. at 602.
35 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).
36 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).
37 See, e.g., Fort Mojave Indian Tribe v. United States, 32 Fed. Cl. 29, 35 (1994).

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project.38 Second, engineers develop an irrigation system based on the available
water supply and the arable land base.39 Third, economists evaluate the crop
patterns, yields, pricing, and the net returns for crops that the irrigation project might
support.40
While the widespread judicial adoption of the PIA standard currently provides
parties with some degree of certainty as to how Indian water rights will be quantified
by courts, that standard is by no means set in stone, and there is evidence to suggest
not only that courts may soon be moving away from the PIA standard, but also that
they may be doing so in slightly different directions, adding to the uncertainty. First,
non-Indian appropriators argue that agricultural water use is highly consumptive, and
therefore the PIA standard is too friendly to Indians and insensitive to state and
private appropriators.41 There is evidence in Justice Thurgood Marshall’s papers that
before Justice O’Connor recused herself in Wyoming v. United States,42 she authored
a draft majority opinion in which the Court would have held that the quantification
of Indian water rights must include a sensitivity analysis, taking into account the
effect on other state and private appropriators.43 Given how close the Supreme Court
came to restructuring the PIA standard in Wyoming, it is possible that the Court might
adopt a stricter standard in the future.

On the other side of the ideological spectrum, some argue that the PIA standard
is not friendly enough to Indians, in that linking water rights to agriculture is
anachronistic and unfair given the current state of the agricultural economy in this
country.44 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.45 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
38 Id.
39 Id.
40 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.”
41 See Peter W. Sly, Reserved Water Rights Settlement Manual 104 (1988).
42 492 U.S. 406 (1989).
43 See Andrew C. Mergen and Sylvia F. Liu, A Misplaced Sensitivity: The Draft Opinions
in Wyoming v. United States, 68 U. Colo. L. Rev. 683 (Summer 1997).
44 See, e.g., Peter W. Sly, Reserved Water Rights Settlement Manual 104 (1988).
45 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”).

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Indian reservation is to establish a “permanent home and abiding place.”46 Citing
various water settlements, the court found its construction necessary “to achieve the
twin goals of Indian self-determination and economic self-sufficiency.”47 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 and projected
future population.48

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 is only one case with no precedential value in other
states. It is still too soon to tell whether or not the Arizona Supreme Court’s Gila
River ruling will spur other states to follow suit and reassess the PIA standard. What
is clear, however, is that there are serious questions - from all sides - about the
effectiveness of that standard.
Winters and Allottee 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 Act49 - 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.50 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 found themselves unable to pay the state taxes to which their lands became
subject, resulting in widespread forced sales.51 These forced sales combined with the
Secretary’s distribution of surplus lands to non-Indians to produce a “checkerboard”
46 In re General Adjudication of All Rights to Use of Water in the Gila River System and
Source, 35 P.3d 68, 74 (Ariz. 2002) (quoting Winters, 207 U.S. at 565).
47 Id. at 76.
48 Id. at 79-80.
49 Act of Feb. 8, 1887, 24 Stat. 388 (codified as amended at 25 U.S.C. §§ 331-334, 339, 341-
342, 348-349, 354, 381). For a brief discussion of the history of and policy behind the Act,
as well as its consequences, see F. Cohen, Handbook of Federal Indian Law 127-143 (1982
ed.); see also William C. Canby, American Indian Law in a Nutshell 20-23 (3d ed. 1988).
50 There are several other allotment acts specific to particular tribes, some with longer or
shorter trust periods than that of the Dawes Act, but the underlying policy issues from a
reserved water rights perspective are the same.
51 William C. Canby, American Indian Law in a Nutshell 22 (3d ed. 1998).

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pattern of Indian/non-Indian land ownership far different from what Congress
intended in passing the Dawes Act.52
While many reservations escaped allotment and its consequences, this
“checkerboard” pattern of ownership on some reservations persists and today
presents serious problems in reserved water rights disputes. The Supreme Court
ruled somewhat confusingly in the only allottee water rights case to come before it
that when tribal land is converted into allotments, the allottees succeed to some
portion of tribal waters needed for agriculture.53 A subsequent Ninth Circuit case,
Colville Confederated Tribes v. Walton, built on that reasoning and held that an
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 allottee’s land.54 The Walton
court also found that a non-Indian successor in interest to an Indian 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.55 The Supreme Court’s ruling and the later
lower court cases expanding on it considered allotment rights only for irrigation
purposes. It is not clear how these holdings relate to reservations of land for non-
agricultural purposes.
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.”56 This is consistent
with the opinion of the Special Master in Arizona v. California, who stated that, even
52 See F. Cohen, Handbook of Federal Indian Law 138 (1982 ed.) (“The majority of Indian
lands passed from native ownership under the allotment policy...about 27 million acres, or
two-thirds of the total land allotted, passed from Indian allottees by sale between 1887 and
1934. An additional 60 million acres were either ceded outright or sold to non-Indian
homesteaders and corporations as ‘surplus’ lands”).
53 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, American Indian
Law Deskbook 207-209 (2d ed. 1998).
54 Colville Confederated Tribes v. Walton, 647 F.2d 42, 51 (9th Cir. 1981).
55 Id.
56 In re General Adjudication of All Rights to Use of Water in the Gila River System and
Source, 35 P.3d 68, 76 (Ariz. 2002).

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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.57
The Gila River court specifically rejected the approach taken by the Wyoming
Supreme Court ten years earlier in the Big Horn adjudication.58 There, 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.59
In reaching its conclusion, the Wyoming Supreme Court relied on the primary-
secondary purpose test used in United States v. New Mexico,60 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 Mimbre 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.61 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.”62 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.
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 chief among these the underlying federal policy of
Indian self-sufficiency, which necessitates an interpretation of Indian reserved rights
that is broader than that of non-Indian reserved rights.63 Secondly, the court said,
57 S. Rifkind, Report of the Special Master - Arizona v. California 265 (1962).
58 In re the General Adjudication of All Rights to Use Water in the Big Horn River System,
835 P.2d 273 (Wyo. 1992).
59 Id. at 278-279.
60 438 U.S. 696 (1978).
61 Id. at 718.
62 Id. at 702.
63 In re General Adjudication of All Rights to Use of Water in the Gila River System and
Source, 35 P.3d 68, 77 (Ariz. 2002).

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CRS-11
even if the New Mexico test applied, the “permanent homeland” purpose would be
primary, not secondary.64
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 large amounts of water
upstream from major metropolitan areas.65 In theory, then, certain tribes could divert
water for their own uses and leave little for the already-parched downstream cities.
Given this situation, such tribes stand to make a good deal of money by agreeing to
not use their water in deference to downstream interests. Marketing water is
especially attractive to tribes which possess the rights to reservation water, but lack
the infrastructure and resources necessary to exploit it.66 Under the Nonintercourse
Act, tribes are restricted from alienating trust property without specific statutory
authorization.67 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.”68 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, in many situations a reservation’s reserved water is already being used for
free downstream by those who have consequently built up a substantial reliance
interest on this state of affairs. The prospect of suddenly having to pay for water that
has for so long been free predictably sparks vehement opposition.69 Secondly, as
discussed throughout this memorandum, 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 one.70 If
64 Id.
65 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).
66 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).
67 25 U.S.C. § 177. Given the disastrous consequences of the Allotment Act era, discussed
earlier, proponents of marketing must overcome some very strong arguments against
granting such congressional approval.
68 25 U.S.C. § 415.
69 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.
70 In re General Adjudication of All Rights to Use Water in the Big Horn River System, 753
P.2d 76, 100 (1988).

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CRS-12
courts move toward the Arizona Supreme Court’s “permanent homeland” approach,
water marketing might rest on a much 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,71 a right which presumably extends
to the regulation of members’ use of tribal water. States must respect a tribe’s right
to order its own affairs,72 and even those states that have assumed criminal and civil
jurisdiction over Indian tribes pursuant to Public Law 280 are expressly prohibited
from regulating Indian trust water rights.73
The real problem 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, an allottee holds rights to a portion of reservation water;
second, and even more complicated, homesteaders have rights to reservation water.
In the late 1800's and early 1900's some reservations were opened up to the public,
and homesteaders moved in to claim portions of reservation land.74 These
homesteaders hold state appropriative water rights,75 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.”76 Citing their inherent sovereign powers over tribal
land and resources, as well as the second Montana exception, tribes have enacted
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 not very clear, engendering a great deal of confusion among tribes and private
71 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 “[E]xists 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.
72 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978).
73 25 U.S.C § 1322.
74 See Peter W. Sly, Reserved Water Rights Settlement Manual 138 (1988).
75 United States v. Anderson, 736 F.2d 1358, 1363-1365 (9th Cir. 1984).
76 United States v. Montana, 450 U.S. 544, 565 (1981).

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CRS-13
water appropriators.77 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 moratorium78 on all DOI approvals of such water codes submitted by
tribes subject to the Indian Reorganization Act (IRA).79 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.80
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 water codes could
not be upheld on tribal sovereignty grounds. 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 does not implicate the concerns of the second Montana exception, and so
the exception does not apply.81 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 impede on “the right of reservation Indians to make their own laws
and be ruled by them.”82 It does not appear that tribal water codes regulating
nonmembers would satisfy that requirement.
Groundwater
The Supreme Court has never addressed whether a reservation’s groundwater
is included in its reserved water right. Most states handle groundwater and surface
water under separate regulatory and judicial controls,83 and a determination of rights
to groundwater is not required for a McCarran Amendment adjudication to meet its
77 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).
78 This moratorium is informal and is not codified anywhere, but is commonly known. 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, American Indian Law Deskbook 224, n. 250 (2d ed. 1998); 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).
79 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.
80 Memorandum from Ross Swimmer to Secretary of the Interior requesting approval of Fort
Peck Water Code, Oct. 7, 1986.
81 Holly v. Confederated Tribes and Banks of the Yakima Indian Nation, 655 F. Supp. 557,
559 (E.D. Wash. 1985).
82 Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997) (quoting Williams v. Lee, 358 U.S.
217, 220 (1959)).
83 See Peter W. Sly, Reserved Water Rights Settlement Manual 181-182 (1988).

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CRS-14
comprehensiveness requirement.84 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.85 Several courts, however, have implicitly recognized a reserved
groundwater right.86 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.”87 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.”88 This issue is by no means settled.
Conclusion
In the century since the Supreme Court promulgated the reserved rights
doctrine, the judiciary has often shown itself to be an inadequate body for resolving
the myriad of issues that the Court in Winters left unresolved, with litigation dragging
on endlessly. This is not surprising, given that three governments and tens of
thousands of people have significant stakes in the outcomes. The situation in the
courts promises to get even more complicated in the wake of the Arizona Supreme
Court’s Gila River ruling.
Many parties have started to realize that issues as complex and important as
those outlined in this report are best 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 Western 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 have begun to 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 each settlement.

84 See United States v. Oregon, 44 F.3d 758, 768-769 (9th Cir. 1994).
85 In re General Adjudication of All Rights to Use Water in the Big Horn River System, 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. United States v. Oregon, 44 F.3d 758, 768-
769 (9th Cir. 1994).
86 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 (9th 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).
87 In re the General Adjudication of All Rights to Use Water in the Gila River System and
Source, 989 P.2d 739, 748 (Ariz. 1999).
88 Id., at 747.

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CRS-15
Ongoing Adjudications. Presently, there are at least 19 ongoing
adjudications involving at least 52 tribes laying claims to water rights on the Gila
River, Virgin River, Walker River, Little Colorado River, Milk River, Missouri
River, Big Horn River, Tongue River, Rosebud River, Flathead River, Blackfoot
River, Bitterroot River, Marias River, Wind River, Klamath River, Snake River, and
Yakima River. Initiated in 1977, the Big Horn adjudication, referred to numerous
times in this memorandum, reached the Supreme Court once and is currently before
the Wyoming Supreme Court for the fifth time.
Pending Settlements. To date, Congress has approved fourteen Indian water
rights settlements.89 Various tribes have negotiated settlement agreements still
awaiting Congressional approval, including the Gila River Indian Community,90 the
Fort Peck Indian Reservation, and the Fort Belknap Indian Reservation. The Nez
Perce Tribe, the Aamodt Pueblo Tribes, and the Crow Indian Reservation are all in
the negotiation process and may have settlements ready to present to Congress within
the next few years.
89 The Zuni Indian Tribe Water Rights Settlement Act (P.L. 108-34); The Chippewa Cree
Tribe of the Rocky Boy’s Reservation Indian Reserved Water Rights Settlement Act (P.L.
106-163); The Yavapai-Prescott Indian Tribe Water Rights Settlement Act (Title I of P.L.
103-434); The San Carlos Apache Water Rights Settlement Act (Title XXXVII of P.L. 102-
575); The Jicarilla Apache Tribe Indian Water Rights Settlement Act (P.L. 102-441); The
Northern Cheyenne Indian Reserved Water Rights Settlement Act (P.L. 102-374); The Fort
McDowell Indian Community Water Rights Settlement Act (P.L. 101-628); The 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); The
Colorado Ute Indian Water Rights Settlement Act (P.L. 100-585); The San Luis Rey Indian
Water Rights Settlement Act (Title I of P.L. 100-675); The Salt River Pima-Maricopa Indian
Community Water Rights Settlement Act (P.L. 100-512); The Ak-Chin Indian Water Rights
Settlement Act (P.L. 98-530); The Southern Arizona Water Rights Settlement Act (P.L. 97-
293).
90 The 108th Congress is currently considering approval of this agreement as part of S. 437
and H.R. 885.

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