WSP06987

• File Number: 8064
• Description: Section "D" General Federal Issues/Policies
• Date: 12/1/1983
• Author: Norman K Johnson
• Title: Indian Water Rights in the West
• Water Supply Pro - Doc Type: Report/Study

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By passage of the Mining Act in 1866 1/ and the Desert Land
Act in 1877 ~/ Congress approved past and future appropri-
ations of water on public lands which had been made pursuant
to local laws and customs, This included the vast majority
of appropriations since most western land was in public
ownership at the time.

The Desert Land Act stated that all water on public
lands was "free for appropriation and use of the public for

irrigation. mining and manufacturing purposes." The Supreme

Court later recognized in California-Oregon Power Co., v,
Beaver Portland Cement Co.1/that this statute affected a

severa~ce of the land and water estates in the public domain,

directing that rights to the land be established independently
of water rights. This decision affirmed the principle that
water could be appropriated and property rights in it es-
tablished under traditional state practices and laws. Although
a few states provided for establishment of some riparian water
rights, the majority opted for the appropriation doctrine as
the controlling standard of water law. That standard prevails.

The water rights created under the appropriation doctrine

are considered constitutionally protected property interests.

They are given a priority date by which they are integrated

into a hierarchy of rights controlled by the "first in time"

principle, The attributes of appropriative water rights are:

(1) Their basis is publicly defined beneficial use: (2) The