WSP00897

• File Number: 8410.300.60
• Description: Basin Multistate Organizations - Missouri Basin States Association - Reports
• State: CO
• Basin: Statewide
• Date: 11/8/1984
• Author: MBSA
• Title: The Issue of Indian Reserved Water Rights
• Water Supply Pro - Doc Type: Report/Study

Court declined to review the case on June 18, 1984. The case had other

interesting aspects that will be reviewed later in this report.

2. Date of Priority

In Winters the U.S. Supreme Court established the date of the water right

reserved for the Fort Belknap Indian tribes as May I, 1888 n the date the

reservation was created by act of Congress. Indian reservations were created

both by treaty between tribes and the United Steltes, which were then ratified

by Congress, and also by Presidential executive order. Later, in Sheem v. U.S.

(273 F. 93; 9th Circuit Court of Appeals, 1921), Indian Welter rights on

reservations created by Presidential executive order were also held to have a

date of the reservation's creation. These rulings meant that the Indieln water

rights were senior to any rights subsequently granted by the states or their

territorial predecessors. Since the estelblishment of Indian reservations preceded

much non-Indian settlement in the West, few non-Indian water rights are senior

to Indi3l1 water rights.

Indians also sometimes argue that their water rights are aboriginal in

nature. That is, they date from ''time immemoriell" and "are inherent sovereign

rights deriving from aboriginal ownership of the entire North American

continent" (National Congress of American Indians, 1981). It follows then that

they also postulate it was they and not the United States who reserved water

for their own use and that these and rights to other natural resources "may

extend beyond reservation boundaries to ceded areas, to traditional sacred sites

or to usual and accustomed hunting, fishing and gathering places" (NCAI, 1981).

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