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f1r--o'i I U (.~, '. I. AN OVERVIEW OF INDIAN WATER RIGHTS A. Pre-Winters Doctrine At a symposium on western water resources sponsored by the Federal Reserve Bank of Kansas City in 1979, Richard Simms, General Counsel to the New Mexico State Engineer and Interstate Streams Commission, reviewed the history of water law in the West. An understanding of the history, he stated, is necessary to comprehend Indian wa ter claims and why they are, "Perhaps the area of greatest potential conflict over water in the West. .." (Simms, 1979, p. 67). Simms summarized the development of western water law in the following manner: During the middle 1800s, title to most of the land in the western United States had been ceded to the country by var ious foreign powers, and until the latter part of the century, it remained in the public domain. That is, it was unencumbered, federally owned property, subject to sale or other disposition and not reserved or held back for any special governmental or public purpose. There were no private rights in the federalIy owned land -- miners and others drawn to the West simply took up residence where they saw fit, acquiring at best incomplete, possessory interests. While water was being diverted for mining, agricultural, and domestic uses, there was no federal law governing its use. The United States simply acquiesced in the incipient development of local water law. The territories and fledgling states created their own water laws. During the twenty-five-year period following the Gold Rush - 18.50 to 187.5 - the doctrine of prior appropriation was recognized by state or territorial statute or court decision in Arizona, California, Colorado, Montana, Nevada, New Mexico, and Wyoming. The doctrine was practiced in Utah, but not officially sanctioned. Between 187.5 and 1900 the doctrine was officially expressed in the present areas of Idaho, Kansas, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah and Washington. -1-