Reserved Water Rights for I ndian and Federal Lands

Abstract

Abstract Historically, the United States set aside land from the public domain for federal purposes such as parks and national forest without taking the actions necessary to establish a water right under state law. It also negotiated treaties with American Indian Tribes that failed to address the question of a water supply for the lands set aside for the tribe. The doctrine of reserved water rights is based on the contract law theory that the federal government intended to reserve adequate water for itself when it set aside land for federal purposes, even though it did not say so expressly in the document setting aside the land (1). Likewise, when an Indian tribe reserved some of its land for itself while ceding the rest to the United States by treaty, this doctrine recognizes that the tribe must have intended to reserve some waters for itself, to make the land it reserved useable. The United States Supreme Court first recognized a reserved water right in the 1908 case of “Winters v. United States”.