WSP06117

• File Number: 8583
• Description: Rio Grande Decision Support System
• State: CO
• Basin: Rio Grande
• Water Division: 3
• Date: 1/1/1988
• Author: Steven J. Shupe & Jo
• Title: The Upper Rio Grande: A Guide To Decision-Making
• Water Supply Pro - Doc Type: Publication

35

OC1132 INDIAN WATER RIGHTS
IN THE RIO GRANDE BASIN

INDIAN GOVERNMENTS and federal
agencies derive most water rights
from a very different legal source
than the appropriative rights
created under state law although
they can apply for rights under
state systems also, The reserved
rights doctrine is the most common
legal source cited in federal law for
Indian water rights. Tribes them-
selves trace their property rights in
water to their prior existence as
independent nations antedating the
formation of the United States and
to their use of water in earlier times.
In fact, the issue of Indian water
rights should be seen in the larger
context of Indian sovereignty and
self-government.

Tribal governments assert a funda-
mental sovereignty which, they
believe, removes them from the
jurisdiction of state government
relating to water resources and
many other issues as welL Thus,
whatever the legal protection of
their rights under current law, they
trace the origin of their property
rights and jurisdictional authorily
to an inherent power of self-
government, one that has been
modified by the United States but
never legally denied or eliminated.
State and tribal governments have
litigated the questions of Indian
sovereignty and governmental
authority in many contexts for
decades. In the context of Rio
Grande management, Indian water
rights are now in adjudication, and,
as court decrees are finalized, the
debate will shift from questions of
the extent of Indian water rights to
defining the role of tribes in water
administration and development,

Under the reserved rights doctrine,
the creation 'of a reservation of land
through actions of the federal gov-
ernment implies the creation of a
reservation of water sufficient to
fulfill the purposes for which the
land was set aside. This doctrine

was first defined in a Supreme
court case, Willters v, UIlited States,
decided in 1908, There a group of
non-Indians opposed a diversion of
water by an Indian tribe upstream
from them on the grounds that the
state prior appropriation doctrine
protected their earlier diversion
from interference by the Indians.
They argued, in short, that state
prior appropriation law should pre,
vail, and under that system the
non-Indians had priority.

The Supreme Court ruled that prior
appropriation under state law
would not decide this case. Rather,
it found that the federal action of
setting aside the Indian reservation
for the purpose of creating a home-
land for the tribe would be totally
defeated if a water appropriation
under state law took precedence,
This would mean that the arid
lands of the reservation could never
be made productive for agriculture,
and thus the federal purpose of
helping the Indians make a transi-
tion from a nomadic way of life to
an agricultural one could not be ful-
filled. The Court declared that the
tribe had a water right with the pri-
ority date of the establishment of
the reservation, not the date of the
first use of water through diversion
works, and that the amount of
water needed to fulfill the reserva-
tion's purpose could expand over
time, if need be.

Such a water right now known
either as a Winters or reserved
right, is obviously at variance with
rights created under state law in
several respects. First, the priority
of the right is not related to permit
application or actual diversion but
to creation of the reservation. Sec-
ond, the amount of the right is not
specified, nor is the use or place
and time of diversion. And main-
tenance of the right does not
depend on actual use but simply
requires availability of the water for
the eventual satisfaction of the pur'
pose of the reservation, whenever
that may occur.

The states have opposed the
Winters doctrine on the grounds
that it creates a cloud over most
non-Indian water rights since they
were established under state law, in
most cases, later than the dates on
which Indian reservations were
established. Thus, the non-Indian
rights could eventually be lost
when Indians actually put their
water rights to use. The Supreme
Court has found that all other fed-
eral reservations, including forests
and national monuments, also
derive water rights under this doc-
trine. Generally, the potential uses
of water for federal reservations are
much smaller than those for Indian
reservations.

,',

,

In recent years, the Supreme Court
has introduced modifications to the

Tribal governments assert a fundamental sover-
eignty. . . they trace the origin of their property rights
and jurisdictional authority to an inherent power of
self government. . .