WSPP00050

• File Number: 8064
• Description: Indian Water Rights
• State: CO
• Date: 8/1/1985
• Author: Frank E Maynes
• Title: Colorado Ute Indian Water Rights-Final Settlement Agreement-December 10 1986-The Animas La Plata Related Reserved Indian Water Rights Concerns
• Water Supply Pro - Doc Type: Report/Study

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to the waters of the Milk River. agriculture was not possible. either for

the non-Indian community or for the Indians, since the area was dry and

arid. In reaching its decision in favor of the Indians, the Supreme Court

of the United States ruled that water rights were impliedly reserved for
the Indians, even though not specified in the agreement. The Court

reasoned that a central purpose of the reservation was to encourage ag-

riculture, yet farming or ranching could hardly be accomplished without

adequate water for irrigation. In any controversy over tribal rights to

water, then, there is an implied right to the water necessary to fulfill the

stated purposes of the reservation.

The following basic principles underly Indian entitlement to water, as

was pointed out by Duane Woodard, Colorado Attorney General, in a water

seminar in Durango in 1984:

First, the I ndian reserved water right is created
when the lands are originally set aside for Indian use;
Second, the right is created and has a priority date
for administration as of the date of the reservation's
creation;
Third, unlike appropriative rights, the right, once
created, cannot be lost by non-use;
Fourth. the amount of water reserved is that amount
necessary to fulfill the purpose of the reservation;
Fifth, the purpose for which the reservation was
created is a question of intent as of the time of its
creation and is determined from the documents estab-
lishing the reservation and the circumstances sur-
rounding its establishment;
Sixth. the water right is senior to all subsequent
appropriations, although non-Indians may use the
water until it is put to use by the Indians. At such
time, though, the non-Indian user is treated as a
junior and may suffer a partial or complete loss of his
appropriative water right without being entitled to any
compensation.

In contrast, the non-indian must demonstrate his beneficial use of water

and must periodically submit statements of diligent use of his water right.
His direct flow rights are expressed in terms of the maximum flow that may

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