Courts Have Much to Resolve in Determining Indian Water Rights

February 27, 2022 Judith M. Dworkin Indian Law

A sustainable water supply is critical for viable communities. In the western United States, this has meant the development of water law regimes to support the area’s growing population. These regimes set objectives for obtaining and controlling limited water and diverting, storing, and delivering this vital resource. The federal government, through congressional appropriations, supports infrastructure development for water storage and delivery. Cities, towns, and improvement districts reimburse the federal government at low interest rates and following long-term repayment schedules.


By contrast, securing water for Indian tribes under federal protection was rarely addressed when reservations were established and often ignored in the years that followed. It was left to the U.S. Supreme Court decades later to provide tribes a common law right to water. The common law operates best when it provides future decision-makers with sufficient guidance and predictability, obtaining a balance between stability and change. S. Balganesh & G. Parchomovsky, Structure and Value in the Common Law, 163 U. Pa. L. Rev. 1241 (2015). Current cases suggest, however, that the settled federal reserved water right principles for Indian tribes are limited while the issues that remain unresolved are significant, leaving decision-makers with limited guidance and a lack of predictability.

Water Regimes in the Western United States

The federal government permitted settlers in the Western territories to develop legal regimes for water rights and development. Early miners needed water for mining operations that were located on public lands some distance from the natural rivers and streams. Thus, diversionary structures were built, and water transported. Those who captured the water first were given first rights. The “first in time, first in right” use of water was the beginning of the prior appropriation doctrine, which created individual property ownership interests in water.

To enshrine this doctrine, the Desert Land Act, 19 Stat. 377 (1877), established that all water on public lands was “free for appropriation and use of the public for irrigation, mining and manufacturing purposes.” The Supreme Court recognized that the Desert Land Act severed the water from public domain land. While land was acquired through the federal government programs, water rights were established under state practice and law. Cal.-Or. Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935). State water law regimes often create rules for different water sources. These sources fall under two categories—surface water from rivers, stream, lakes, and ponds and groundwater from aquifers. State appropriation laws may only apply to surface waters, while groundwater is governed by various regimes. In addition to those jurisdictions that apply prior appropriation to all sources of water, there are four primary regimes governing groundwater withdrawal and use. These regimes include capture, correlative rights, reasonable use, and regulated use.

The rule of capture allows landowners to pump as much groundwater as desired for any purpose anywhere. Correlative rights give landowners proprietary interests based on the amount of land owned above the aquifer. Reasonable use rules stipulate that groundwater may be used reasonably on the land overlying the aquifer. Finally, regulated systems require landowners to obtain a permit to pump and use groundwater.

The Inception of a Federal Reserved Water Right for an Indian Tribe

Indian tribes did not seek to establish water rights pursuant to the law of the state in which the reservation was located; establishing a tribe’s right to water was left to the Supreme Court. Tribal rights were determined, in large part, by the foundational decisions of United States v. Winans, 198 U.S. 371 (1905), and Winters v. United States, 207 U.S. 564 (1908). Neither case directly sought to establish a tribe’s water rights. The Winans case addressed access rights to traditional fishing locations. The Winters case established that the federal government, on behalf of a tribe, could enjoin non-Indian irrigators in order to provide water to an Indian reservation. Taken together, these cases support tribal water rights as detailed below.

In Winans, the Winans brothers operated four state-licensed fish wheels near Celilo Falls on the Columbia River. They also held several federal homestead patents to shoreline lands. The brothers prohibited members of the Yakima Tribe from accessing their traditional fishing places and destroyed the curing buildings the Indians erected for their catch. Because the Yakima Tribe was a signatory on the United States and Pacific Northwest tribal treaties, the federal government brought suit on their behalf. The district court declined to issue an injunction against the Winans brothers on the basis that state licenses and federal patents enabled them to exclude both Indians and non-Indians alike. United States v. Winans, 73 F. 72 (D. Wash. 1896).

On appeal, U.S. Supreme Court Justice McKenna ruled that “the treaty was not a grant of rights to the Indians, but a grant of rights from them—a reservation of those [rights] not granted.” Winans, 198 U.S. at 381. The Court further stated that the tribe’s right to access their traditional fishing grounds was a right that had existed since “time immemorial.” This landmark case essentially established a tribe may have the most senior water right, identified as time immemorial priority, regardless of state law.

The Winters case involved the Fort Belknap Indian Reservation in Montana. The tribe’s territory was diminished by a succession of nineteenth century treaties. The final action was an 1888 statute that confined the tribe to just 1400 square miles of grazing land. Winters v. United States, 143 F. 740, 742 (9th Cir. 1906). There was little water on the reservation, although its northern boundary was fixed in the center of the Milk River. By the time Montana was granted statehood in 1889, the federal government was diverting water from the Milk River for domestic and irrigation needs of the tribal members and the government officials located on the Fort Belknap Reservation. In 1898, the government initiated an Indian irrigation project.

Meanwhile, under the Desert Land Act of 1877, settlers could acquire 640 acres of public land for 25 cents per acre upon proof that the land had been irrigated. 43 U.S.C. §§ 321–39. Non-Indian irrigators, such as ditch, irrigation, and cattle companies, constructed diversion works upstream of the reservation on Milk River tributaries pursuant to the federal Desert Land Act and Montana’s prior appropriation law.

A drought in 1905 made it impossible to meet both Indian and non-Indian water needs, and the federal government filed suit to protect the Indian diversion. The government won at trial and the Supreme Court upheld the decision. Winters, 207 U.S. 564. Justice McKenna ruled that the Desert Land Act did not supersede federal water rights. On the contrary, the 1888 statute impliedly reserved the Indians’ Milk River water rights. He explained:

The power of the government to reserve the waters and exempt them from appropriation under the state laws is not denied, and could not be. . . . That the government did reserve them we have decided, and for a use that would necessarily continue through the years.

Id. at 577. The Winters case thus confirmed that Indian reservation water rights are federally created and that state law does not govern. It also upheld the federal government’s right to reserve lands for a particular purpose and impliedly reserved the water necessary for the Indians to reject their old habits and adopt new ones. Finally, it set the priority date as the reservation’s established date and the water reserves from unappropriated water resources. This decision provided those Indian tribes with established reservations with water rights senior to most non-Indian users within the specific stream system and source.

Neither Winans nor Winters established how much water was reserved for the tribe and, therefore, how much water would be available for non-Indian users. Unlike non-Indian water rights claimants, Indian tribes have historically made little use of the water sources, though their needs for secure and accessible water supplies are substantial. The devastating impact on the Navajo people during the COVID-19 pandemic due to the lack of secure water supplies is but one example. Not until Arizona v. California, 373 U.S. 546 (1963), did the Court establish a method for quantifying the federal reserved water rights.

Arizona v. California was brought by Arizona against California and some of its agencies to determine Arizona’s Colorado River water rights. The other Colorado River basin states and the United States intervened in the lawsuit. In addition to addressing the division of the waters of the Colorado River between the seven basin states, the Court addressed the quantification of reserved water rights of several Indian tribes along the Colorado River. It found that the “only feasible and fair way by which reserved water for the reservations can be measured is irrigable acreage.” Id. at 600–01. Using the “practicably irrigable acreage (PIA) standard,” the Court determined that the federal government implicitly reserved about a million acre-feet of water for about 135,000 irrigable acres of land for the five Indian reservations along the main stem of the Colorado River. Id. at 595–96.

While these foundational cases established that federally recognized Indian tribes have a reserved right to water consistent with the purpose of the specific reservation, these cases are not sufficient by themselves to adjudicate a tribe’s water rights within a river system and source. While some tribes brought actions in federal court to establish their water rights, the western states looked to general stream adjudications to decree the water rights of all water users of the river system. In 1952, Congress enacted the McCarran Amendment, which waived the United States’ sovereign immunity in suits concerning ownership or management of water rights. 43 U.S.C. § 666. The McCarran Amendment enabled the state courts to adjudicate the water rights of Indian tribes and other federal reservations while applying state law to the state parties to the adjudication. The challenge for state courts is to apply federal common law to the determination of the Indian reservation’s water rights while incorporating those rights into the overall decree of all users in the stream-wide systems. The rulings of the foundational cases are insufficient to determine the water rights of the hundreds of individual Indian reservations. Since the early twentieth century, state parties and Indian tribes have struggled with the resolution of tribes’ water rights. Frequently, the struggles have resulted in water settlements agreed to by the parties, authorized by Congress, and approved by the state courts. As is documented below, in those cases that have not settled and have been resolved in the courts, little of the common law of federal reserved water rights has been resolved.

The Federal Reserved Water Rights Today—More Questions Than Resolutions

Water rights decrees require detailed attributes for each water user and water use. For state water rights holders, the decree is based on existing use. Typically, the attributes required include the following: date of first use (or date of application), place of use, source of water, location of diversion, type of use, and quantity or flow. Federal reserved water rights are based on an implied reservation of rights for future uses, not current uses. The following sections provide examples of the many challenges that the state courts are required to address.

Basis of the Right—Purpose of the Reservation

In determining the federal reserved water right, an adjudication court will begin with determining the purpose of the federal reserve, in this case, an Indian reservation. Many reservations were established to encourage nomadic Indians to settle down. For example, in United States v. Adair, the Ninth Circuit found dual purposes for establishing the Klamath Reservation. The reservation provided a homeland to maintain an agrarian society and preserved access to the tribe’s fishing grounds. 723 F.2d 1394, 1411 (9th Cir. 1983).

The Wyoming Supreme Court determined that the purpose of the Wind River Reservation was “to provide the Indians with a homeland where they could develop their civilization.” In re Rights to Use Water in Big Horn River, 753 P.2d 76 (Wyo. 1988), aff’d by an equally divided court sub nom. Wyoming v. United States, 492 U.S. 406 (1989) (Big Horn I). The Wyoming court concluded that the purpose of the Wind River Reservation was purely agricultural and found that there was no implied reserved right for a fishery, or for mineral and industrial uses. This determination rejected the use of reserved water for the Indian reservation for fisheries, wildlife and aesthetics, and mineral and industrial. Municipal, domestic, livestock, and commercial uses were included within the agricultural purpose.

In the Coeur d’Alene–Spokane River Basin Adjudication, the Idaho Supreme Court discussed in great detail the history of the Coeur d’Alene Tribe. It concluded that the lower court had erred in applying a primary-secondary purpose established in the non-Indian federal reservation case of United States v. New Mexico, 438 U.S. 696 (1978). In re CSRBA Case No. 499576 subcase No. 91-7755, 165 Idaho 517 (2019) (CSRBA)The courts in Montana and Arizona have also found that the primary-secondary purpose is inapplicable to Indian reservations. Courts should focus on a broad reservation purpose that supports tribal self-sufficiency and tribal sovereignty.

The Arizona Supreme Court concluded that Arizona reservations were created as permanent homelands for Indian peoples. In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source, 35 P.3d 68, 76 (Ariz. 2001) (Gila V). The court noted that historical documents used to determine the purpose of a reservation may not reflect the “true reasons” for reservations—to make way for white settlement in the West. Id.

These decisions have uniformly rejected narrowing and limiting the purpose of a tribal reservation and have concluded that Indian reservations generally were established as a permanent homeland for the Indian located thereon. Absent specific language in the treaty, statute, or executive order that would contradict this determination, the purpose of an Indian reservation appears to be settled law, providing for future predictability.

Priority of the Right

In states governed by prior appropriation, priority dates are a crucial attribute of water rights. The priority date of federal reserved Indian water rights depends on whether use was predevelopment or after creation of the reservation. For Winters, it is the date on which the reservation was created. In contrast, rights date from time immemorial in the Winans case. There are some tribes with both reservation date and time immemorial rights. See Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 712 P.2d 754, 764 (Mont. 1985); United States v. Adair, 723 F.2d 1394, 1411, 1414–15 (9th Cir. 1983).

Priority is more complicated when the reservation is created through a series of treaties and executive orders. In considering the purpose of the reservation, Gila V explained that many Indian reservations were pieced together over time. To determine the reservation’s purpose, the Arizona court noted that “such an arbitrary patchwork of water rights would be unworkable and inconsistent with the concept of a permanent, unified homeland.” 35 P.3d at 74. The same difficulties would result if priority was piecemealed together.

For example, in State ex rel. Martinez v. Lewis, 116 N.M. 194, 207, 861 P.2d 235, 248 (Ct. App. 1993), the court held that the priority date for the Mescalero Apache Tribe was the tribe’s 1852 treaty. As a peace treaty, it did not designate land for the Apache. Id. at 203. The court looked at previous federal cases analyzing priority dates and held that “the priority date should be the date the United States promised to create a reservation.” Id. Following the 1852 treaty, the US enacted five executive orders that established and then added to the reservation, but the court based priority on the date on which the peace treaty was signed. Id. at 198. However, in the case of the Cocopah Tribe, in which a water right decree had been adjudicated twenty years earlier in the foundational case of Arizona v. California, it is worth noting that the Supreme Court determined that rights associated with reservation additions would not be given retroactive priority dates to the date of the original reservation. Arizona v. California, 460 U.S. 605, 641 (1983). These decisions do not provide predictability as to how a reservation created through a series of federal actions will be treated.

Quantification of the Right

A number of issues arise in considering the quantification of a tribe’s water rights, including what standard should apply, whether there is a cap on the quantification, and whether quantification is impacted by whether the right was established under Winans or Winters. In the foundational case of Arizona v. California, the Court established the right of Indian tribes to obtain sufficient water for irrigation using the PIA criteria. In Big Horn I, the Wyoming Supreme Court defined PIA as those acres susceptible to sustained irrigation at reasonable costs and considering, first, the arability of the land; second, the engineering feasibility; and third, the economic feasibility. 753 P.2d at 101. The Arizona Supreme Court rejected strict application of PIA as forcing tribes to pretend to be farmers in an era when agricultural projects are risky. Gila V, 35 P.3d at 79. It noted that “[l]imiting the applicable inquiry to a PIA analysis not only creates a temptation for tribes to concoct inflated, unrealistic irrigation projects, but deters consideration of actual water needs based on realistic economic choices.” Id.

By rejecting PIA as the sole method for quantifying an Indian tribe’s water rights, Gila V raised new issues. Quantification should take into consideration tribal history, including water use for rituals and traditional activities; tribal culture and water-using tribal practices; geography and natural resources, including groundwater; economic base and the reservation’s economic infrastructure; past water use; and present and projected future population. Id. at 76–78In setting quantification standards, the Gila V court noted that it was “enter[ing] essentially uncharted territory” and that the inquiry was a “fact-intensive [one] that must be made on a reservation-by-reservation basis.” Id.

The concept of minimal need was first raised in Arizona v. California, and later addressed in Gila V. The Arizona Supreme Court concluded that its function was to determine the amount of water necessary for permanent homeland purposes “tailored to the reservation’s minimal need.” Id. at 81. The court further held that “[t]he general purpose, to provide a home for the Indians, is a broad one and must be liberally construed” and that “[s]uch a construction is necessary for tribes to achieve the twin goals of Indian self-determination and economic self-sufficiency.” Id. at 76. No determination has been made as to how to synchronize minimal need with permanent homeland. This is an issue for which there is no predictability.

The Winans case and many subsequent decisions have dealt with treaties. Water rights established in accordance with Winans involve access to water, or non-consumptive uses. The Law of the American Indians’ Tentative Draft No. 4 (Am. L. Inst., Apr. 29, 2020) has described these rights as “typically non-consumptive and relat[ing] to preventing other appropriators from deleting or diminishing a water resource necessary for the protected right.” Id. at 131. These rights are “expressly recognized by the federal government, usually in treaties. In these treaties, the Indians reserved (and the government recognized) preexisting uses of water, often for subsistence purposes.” Waters and Water Rights Treatise § 37.02. Nevertheless, the federal government has taken the position that federally recognized tribes can assert their rights for consumptive and non-consumptive uses and, potentially, for expanding uses. Such an interpretation clouds the difference between Winans and Winters rights and impairs predictability.

Source of the Water

A water right decree will include the source of the water that satisfies the user’s water right. Because federal reserved water rights are prospective, the source of the supply must be determined. While appurtenancy is addressed, the meaning of appurtenancy has not been resolved. The Court awarded Colorado River water to the Cocopah Reservation, which is approximately two miles from the river, suggesting that physical appurtenancy to the reservation is not required. Arizona, 373 U.S. 546. In Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., the Ninth Circuit addressed appurtenant limits by stating that “the unappropriated water must be ‘appurtenant’ to the reservation.” 849 F.3d 1262, 1271 (9th Cir. 2017). Yet, in Katie John v. United States, the Ninth Circuit explained that the meaning of appurtenance is not limited to the physical attachment of water to land but is a legal doctrine that attaches water rights to land to the extent necessary to fulfill the federal government’s obligations. 720 F.3d 1214, 1223 (9th Cir. 2013).

Winans rights may be established at even greater distances from a reservation. These rights are related to traditional water uses such as hunting and fishing that would have occurred both on and off reservation lands. Adair, 723 F.2d at 1417–18.

Whether physically appurtenant or not, appurtenancy does not, however, include the notion that a tribe has a reserved right “to all of the waters appurtenant to their reservations.” In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source, 989 P.2d 739, 748–49 (Ariz. 1999) (Gila III).

In addition to whether the source of supply is appurtenant, a growing concern is whether a tribe may establish the source of supply as groundwater. The U.S. Supreme Court has not directly addressed the issue.

Two state courts have addressed the issue and reached different conclusions. In Big Horn I, the Wyoming Supreme Court rejected a reserved right in groundwater as “not a single case applying the reserved water doctrine to groundwater” was cited and despite acknowledging that logic supported a reserved right in groundwater. 753 P.2d at 99–100.

In contrast, in Gila III, the Arizona Supreme Court concluded that if the federal government implicitly intended to reserve sufficient unappropriated water to meet a reservations’ needs when establishing reservations, it must have intended that this water come from whatever sources each reservation had at hand, including groundwater. 989 P.2d at 745–46. In Agua Caliente, the federal court concluded that while “it was unable to find controlling federal appellate authority explicitly holding that the Winters doctrine applies to groundwater, we now expressly hold that it does.” 849 F.3d at 1271.

This leaves open the question under what conditions a federal reserved right may be found in groundwater. In Gila III, the Arizona court concluded that “a reserved right to groundwater may only be found where other waters are inadequate to accomplish the purpose of [the] reservation.” 989 P.2d at 748. But a Washington federal district court held that reserved rights extend to groundwater regardless of surface water adequacy in providing for tribal needs. United States v. Wash. Dep’t of Ecology, 375 F. Supp. 2d 1050, 1058, 1068–70 (W.D. Wash. 2005), order vacated by United States ex rel. Lummi Indian Nation v. Wash. Dep’t of Ecology, 2007 U.S. Dist. LEXIS 86162 (W.D. Wash. Nov. 20, 2007).

Finally, courts have yet to address the attributes related to the use of groundwater in those states in which groundwater is not an appropriable source of water, such as Arizona. While Gila III concluded that including groundwater would ensure greater protection for Indian tribes, it did not address how priority would be applied in allocating groundwater because state groundwater rights have no priority.

In summary, a common law federal reserved water right for Indian tribes has existed since the first decade of the twentieth century. This common law right supports the principles of tribal sovereignty and economic self-sufficiency. Yet there are significant challenges to its application to a specific Indian tribe. While federal and state courts have generally accepted a broad interpretation of the purpose of an Indian reservation as a permanent homeland for Indian peoples, most other attributes of a common law water right remain unresolved.