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Indian Reserved Water Rights: An Overview

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Abstract:

With the dramatic population increase in the West over the last thirty years, the Western states have been under increasing pressure from their citizens to secure future access to water. In planning to meet this goal, however, Western officials have had to confront a heretofore obscure doctrine of water law: the doctrine of Indian reserved water rights, also known as the Winters doctrine. This doctrine holds that when Congress reserves land for an Indian reservation, Congress also reserves water to fulfill the purpose of the reservation. When this doctrine is applied to the water laws of the Western states, tribal rights to water are almost always senior to other claimants. Therefore, in order for Western water officials to effectively plan for a stable allocation of water on which all parties can rely, they must find a way to satisfy the water claims of local Indian tribes. The parties originally took to the courts to resolve these issues, only to find themselves in an endless cycle of litigation that rarely produced definitive rulings. As a result, negotiated settlements - which require Congressional authorization in order to be valid - are fast becoming the norm. This report provides an overview of the legal issues surrounding Indian reserved water rights disputes.