INDIAN WATER RIGHTS

Abstract

IN 1908 the United States, on behalf of Indians at the Fort Belknap Reservation in Montana, brought suit to stop non-Indians upstream on the Milk River from diverting water needed to irrigate land on the reservation. The Supreme Court ruled [Winters v. United States (207 U.S. 564, 1908)] that the United States did implicitly reserve water in sufficient quantity to meet the primary purpose of the reservation. That decision, referred to as the Winters Doctrine, has figured prominently in virtually all Indian water rights suits. Since Winters, this legal issue has evolved into the reserved rights doctrine. The issue of federal reserved water rights and Indian water rights in particular has received much legal and scholarly attention. But even with all the attention Indian water rights have received, many questions remain. Among the numerous unanswered questions are those pertaining to uncertainty and equity in the quantification and administration of Indian water rights and if quality of life will be improved after water rights are granted. Federal reserve rights, thus, Indian water rights, are generally regarded to have originated with the Winters decision. Three questions are of importance First, how do Indian water rights compare and contrast with state …