Appellants
Henry Winters, John W. Acker, Chris Cruse, Agnes Downs and the Empire CattleCompany
Appellee
United States
Appellants' Claim
That appropriated water rights to the Milk River of Montana were valid and had priority over those of the Fort Belknap Native Americans and the United States.
Chief Lawyer for Appellants
Edward C. Day
Chief Lawyer for Appellee
Sanford, Assistant Attorney General
Justices for the Court
William Rufus Day, Melville Weston Fuller, John Marshall Harlan I, Joseph McKenna (writing for the Court), Oliver Wendell Holmes, William Henry Moody, Rufus Wheeler Peckham, Edward Douglass White
Justices Dissenting
David Josiah Brewer
Place
Washington, D.C.
Date of Decision
6 January 1908
Decision
Found in favor of the United States affirming two lower court decisions thatthe tribes held implied water rights through their agreement with the UnitedStates that took priority over latter nearby settlers.
Significance
This landmark ruling set U.S. policy regarding Native American water rights in the western United States. Agreements and treaties establishing Indian Reservations, though not explicitly claiming water rights, contained an implied reserved right to the amount of river water necessary to effectively pursue the purposes of the reservations. The decision created the Winters doctrine, defining a form of water right unique to Native American tribes.
After acquiring rights to the western lands from other European countries, the federal government still had to negotiate actual possession through treaties and agreements with the numerous Native American tribes. The newly gained property rights of the federal government included the power to dispose of thepublic lands and water in the West.
Two major systems of water rights are found in the United States. The water abundant states in the East established the riparian system. The more arid West applied an appropriative system. Under the riparian system, an owner of land that borders a stream has the right to make reasonable use ofthe water. The right is attached to the land and cannot be terminated even if not used. The owners are also entitled to continuation of the stream flow from the upstream source. The appropriative system operates quite differently.Water rights are not linked to the land, rather they belong to the first person who makes beneficial use of the water. An appropriator maintains the right to continue using the water without interference by later appropriators. However, the right is retained only as long as the water is used for benefit. The popular phrase "use it or lose it" was often connected to the appropriative water system.
During early western settlement, Congress permitted the states to control, distribute, and manage water on the public lands. The public could appropriatethe water in accordance with state law. Through the second half of the nineteenth century, settlement and development of public lands occurred under various federal land laws, such as the Homestead Act of 1862 which opened the public lands to settlement. In 1877, the Desert Land Act opened all previously unappropriated, "surplus," water on the public lands for "use of the public forirrigation, mining and manufacturing purposes subject to existing rights." The act designated the states to regulate this appropriation of surplus water,but left the door open for the federal government to later assert water rights. Later, the federal government began to take a more active role with inception of land reclamation and flood control projects, assertion of Native American rights, and development of interstate agreements.
Water for the Pursuit of "Civilization"
In 1874, the U.S. government withdrew from settlement a large area of the future state of Montana for the exclusive use of the Gros Ventre, Piegan, Blood,Blackfeet, and River Crow Indians. However, as the U.S. population continuedto push westward, the United States negotiated an agreement in 1888 with thetribes to transfer much of the land back to the United States to promote settlement of the area. As part of the agreement, Congress retained a small partof the formerly withdrawn lands specifically for the Gros Ventre and Assiniboing tribes, called the Fort Belknap Native Reservation. The lands relinquished by the tribes returned to the public domain and became available to settlers through the various land laws.
Much of the new reservation was suitable to pasture, feed and graze large numbers of cattle and horses and other portions were suitable for farming and cultivation. But large quantities of water were needed for irrigation to make them productive. In 1889 the United States constructed houses and buildings onthe reservation for its officers in charge and appropriated a small amount of water from the Milk River which formed the reservation's northern boundary.The water was used for domestic use and irrigation to raise crops includinggrain, grass, and vegetables.
Almost a decade later in 1898, the Fort Belknap Natives diverted a much larger flow to water about 30,000 acres of land to raise crops. The Native Americans needed the waters to stabilize their rural economy and continue their pursuit of "civilization" under federal guidance.
Meanwhile, Henry Winters and the stockholders of the Matheson Ditch Company and Cook's Irrigation Company acquired lands upstream from the reservation under the Homestead and Desert Land Acts. The Empire Cattle Company soon purchased the lands. Shortly before the Belknap Indians began diverting Milk River waters, the settlers posted various signs along the river and its tributariesat the points of intended diversion containing notices of appropriation, describing the proposed means of diversion, and where the water was to be used. Forty days after posting the notices, Winters and the others built numerous dams, reservoirs, and ditches upstream from the reservation to divert Milk River waters from the river channel for their use.
The United States filed suit in federal district court to restrain Winters and the cattle company from diverting water out of Milk River above the reservation. Winters claimed their rights to the Milk River waters and its tributaries were established prior to the river use by the United States and the Natives. Winters also asserted that the Native Americans and the United States could obtain sufficient water from a large number of springs and several streamson the reservation. Winters argued the river waters were indispensable. If use of the waters was blocked, their land's productivity would be ruined. Theloss would compel the settlers to abandon their homes and a substantial and irreparable damage would have been inflicted. Though the amount of damages could not be estimated, Winters asserted it would greatly exceed $100,000.
The district court ruled in favor of the United States, and an appeals courtaffirmed the decision. Winters then appealed to the U.S. Supreme Court.
A Special Right
By a 8-1 decision, the Court found in favor of the U.S. government. Justice Joseph McKenna, writing for the majority, found that the key factor was the 1888 agreement creating the Fort Belknap Indian Reservation. McKenna found it unnecessary to determine the validity of Winter's water right claim because when the Fort Belknap land was reserved in 1888, water rights for the Native Americans were reserved as well by implication.
McKenna wrote that the reservation was originally part of a much larger traditional territory the Native Americans rightly occupied. The expansive regionwas adequate to meet the needs of a nomadic people. However, government policy dictated the Native Americans become a pastoral and westernized people andthe Native Americans agreed to change their lifestyle. Consequently, the original territory became larger than necessary but a smaller tract would be inadequate without changing its condition. The arid lands without irrigation werenot favorable to more permanent settlement.
McKenna acknowledged the difficulty of interpreting implicit elements of agreements. But, a standard established in United States v. Winans (1905)required that interpretation of ambiguities in agreements and treaties between the United States and the Native Americans must be made in favor of the Natives. McKenna found that the Court was faced with two questions. First, did Congress, in creating the Fort Belknap Indian Reservation by agreement, implya guaranteed reasonable quantity of water to the Native Americans. Secondly,did Congress terminate this reservation of water when it admitted Montana tothe Union one year later "upon an equal footing with the original States."
In answering the first question, McKenna emphasized that the reservation wascreated to change the Native Americans' "nomadic and uncivilized" habits, making them into "a pastoral and civilized people." Without water to irrigate the lands, however, the reservation would be "practically valueless" and "civilized communities could not be established thereon." The fundamental purpose of the reservation would be "impaired or defeated."
Regarding the second question, McKenna wrote,
Impact
The Court's decision created the "Winters doctrine" which guided the future management of Native reserved water rights. Oddly, for decades after Winters, the issue of Native American water rights was largely ignored. The Winters doctrine was eventually affirmed in Arizona v. California (1963)concerning Lower Colorado River water. The Court went a step further than Winters by actually identifying how to determine the quantity of water desirable for tribal use. The Court ruled the quantity should not be based on the size of the existing reservation population, but on the amount of reservation acreage potentially productive with irrigation.
Some key characteristics of the doctrine included: (1) establishment of an Indian reservation by treaty, statute or executive order included an implied reservation of rights to water sources within and bordering the reservation; (2) the water rights were reserved at the date the reservation was created; (3)the quantity of water reserved for Native American use was the amount sufficient to irrigate all the practical reservation acreage; and, (4) the water rights can not be lost by non-use. Also, those who held water rights prior to creation of a reservation could retain those rights. As a result of Winters, Native American rights blended aspects of appropriative and riparian rights. While the rights became established at the time a reservation was established and the rights of existing users were recognized, rights to water fromstreams within or bordering reservations were tied to the land and could notbe lost because of non-use.
The Winters doctrine also served as a model broader non-Native application. Any time the federal government reserved land for a public purpose, water rights were also provided in sufficient quantity and quality so that the purposefor which the land was designated could be satisfied.
A lingering difficulty with such implied reserved rights was that normally the actual volume of water reserved was not known. For example, concerns were that designation of lands for wilderness purposes would carry some unspecifiedquantity of water. The manner in which water allocations were recognized enormously affected continued development in the West. Many worried that unresolved reserved water rights could limit the efficient use of limited water resources. Furthermore, uncertainty persisted even when rights were awarded sincethe conditions of ownership were still not well defined. Could the rights could be bought, sold, or traded for other water rights? To avoid expensive andlengthy legal battles, many states and tribes pursued complex negotiations in the late twentieth century to specifically establish water allocations forthe various users.
Related Cases
Reservation Populations
According to the U.S. Census Bureau, 808,163 people live on the largest Indian reservations--those with 10,000 people or more, which constitute a large portion of the nation's Native American population of 1,878,285. Just over halfof the population of the largest reservations is Native American, a group which includes American Indians and Alaskan Natives. Thus out of more than 808,000 people, 437,431 (54 percent) are Native Americans. This figure, less thana quarter of the nation's total Native American population, suggests a largedegree of movement to non-reservation locales.
The largest tribal area is the Navajo and Trust Lands territory in Arizona, New Mexico, and Utah, which holds 148,451 people, 96 percent of whom are Native American. The next-largest reservation, the Pine Ridge and Trust Lands of Nebraska and South Dakota, is much smaller, with just 12,215 people, of whom 91.5 percent are Native American. The reservation at East Cherokee, North Carolina, has 5,388 Native Americans. Other substantial reservations include FortApache (11,182 Native Americans), Gila River (9,825), and Papago (8,480), all in Arizona.
Sources
Statistical Abstract of the United States 1997. Washington, DC: U.S. Government, 1997.
Henry Winters, John W. Acker, Chris Cruse, Agnes Downs and the Empire CattleCompany
Appellee
United States
Appellants' Claim
That appropriated water rights to the Milk River of Montana were valid and had priority over those of the Fort Belknap Native Americans and the United States.
Chief Lawyer for Appellants
Edward C. Day
Chief Lawyer for Appellee
Sanford, Assistant Attorney General
Justices for the Court
William Rufus Day, Melville Weston Fuller, John Marshall Harlan I, Joseph McKenna (writing for the Court), Oliver Wendell Holmes, William Henry Moody, Rufus Wheeler Peckham, Edward Douglass White
Justices Dissenting
David Josiah Brewer
Place
Washington, D.C.
Date of Decision
6 January 1908
Decision
Found in favor of the United States affirming two lower court decisions thatthe tribes held implied water rights through their agreement with the UnitedStates that took priority over latter nearby settlers.
Significance
This landmark ruling set U.S. policy regarding Native American water rights in the western United States. Agreements and treaties establishing Indian Reservations, though not explicitly claiming water rights, contained an implied reserved right to the amount of river water necessary to effectively pursue the purposes of the reservations. The decision created the Winters doctrine, defining a form of water right unique to Native American tribes.
After acquiring rights to the western lands from other European countries, the federal government still had to negotiate actual possession through treaties and agreements with the numerous Native American tribes. The newly gained property rights of the federal government included the power to dispose of thepublic lands and water in the West.
Two major systems of water rights are found in the United States. The water abundant states in the East established the riparian system. The more arid West applied an appropriative system. Under the riparian system, an owner of land that borders a stream has the right to make reasonable use ofthe water. The right is attached to the land and cannot be terminated even if not used. The owners are also entitled to continuation of the stream flow from the upstream source. The appropriative system operates quite differently.Water rights are not linked to the land, rather they belong to the first person who makes beneficial use of the water. An appropriator maintains the right to continue using the water without interference by later appropriators. However, the right is retained only as long as the water is used for benefit. The popular phrase "use it or lose it" was often connected to the appropriative water system.
During early western settlement, Congress permitted the states to control, distribute, and manage water on the public lands. The public could appropriatethe water in accordance with state law. Through the second half of the nineteenth century, settlement and development of public lands occurred under various federal land laws, such as the Homestead Act of 1862 which opened the public lands to settlement. In 1877, the Desert Land Act opened all previously unappropriated, "surplus," water on the public lands for "use of the public forirrigation, mining and manufacturing purposes subject to existing rights." The act designated the states to regulate this appropriation of surplus water,but left the door open for the federal government to later assert water rights. Later, the federal government began to take a more active role with inception of land reclamation and flood control projects, assertion of Native American rights, and development of interstate agreements.
Water for the Pursuit of "Civilization"
In 1874, the U.S. government withdrew from settlement a large area of the future state of Montana for the exclusive use of the Gros Ventre, Piegan, Blood,Blackfeet, and River Crow Indians. However, as the U.S. population continuedto push westward, the United States negotiated an agreement in 1888 with thetribes to transfer much of the land back to the United States to promote settlement of the area. As part of the agreement, Congress retained a small partof the formerly withdrawn lands specifically for the Gros Ventre and Assiniboing tribes, called the Fort Belknap Native Reservation. The lands relinquished by the tribes returned to the public domain and became available to settlers through the various land laws.
Much of the new reservation was suitable to pasture, feed and graze large numbers of cattle and horses and other portions were suitable for farming and cultivation. But large quantities of water were needed for irrigation to make them productive. In 1889 the United States constructed houses and buildings onthe reservation for its officers in charge and appropriated a small amount of water from the Milk River which formed the reservation's northern boundary.The water was used for domestic use and irrigation to raise crops includinggrain, grass, and vegetables.
Almost a decade later in 1898, the Fort Belknap Natives diverted a much larger flow to water about 30,000 acres of land to raise crops. The Native Americans needed the waters to stabilize their rural economy and continue their pursuit of "civilization" under federal guidance.
Meanwhile, Henry Winters and the stockholders of the Matheson Ditch Company and Cook's Irrigation Company acquired lands upstream from the reservation under the Homestead and Desert Land Acts. The Empire Cattle Company soon purchased the lands. Shortly before the Belknap Indians began diverting Milk River waters, the settlers posted various signs along the river and its tributariesat the points of intended diversion containing notices of appropriation, describing the proposed means of diversion, and where the water was to be used. Forty days after posting the notices, Winters and the others built numerous dams, reservoirs, and ditches upstream from the reservation to divert Milk River waters from the river channel for their use.
The United States filed suit in federal district court to restrain Winters and the cattle company from diverting water out of Milk River above the reservation. Winters claimed their rights to the Milk River waters and its tributaries were established prior to the river use by the United States and the Natives. Winters also asserted that the Native Americans and the United States could obtain sufficient water from a large number of springs and several streamson the reservation. Winters argued the river waters were indispensable. If use of the waters was blocked, their land's productivity would be ruined. Theloss would compel the settlers to abandon their homes and a substantial and irreparable damage would have been inflicted. Though the amount of damages could not be estimated, Winters asserted it would greatly exceed $100,000.
The district court ruled in favor of the United States, and an appeals courtaffirmed the decision. Winters then appealed to the U.S. Supreme Court.
A Special Right
By a 8-1 decision, the Court found in favor of the U.S. government. Justice Joseph McKenna, writing for the majority, found that the key factor was the 1888 agreement creating the Fort Belknap Indian Reservation. McKenna found it unnecessary to determine the validity of Winter's water right claim because when the Fort Belknap land was reserved in 1888, water rights for the Native Americans were reserved as well by implication.
McKenna acknowledged the difficulty of interpreting implicit elements of agreements. But, a standard established in United States v. Winans (1905)required that interpretation of ambiguities in agreements and treaties between the United States and the Native Americans must be made in favor of the Natives. McKenna found that the Court was faced with two questions. First, did Congress, in creating the Fort Belknap Indian Reservation by agreement, implya guaranteed reasonable quantity of water to the Native Americans. Secondly,did Congress terminate this reservation of water when it admitted Montana tothe Union one year later "upon an equal footing with the original States."
In answering the first question, McKenna emphasized that the reservation wascreated to change the Native Americans' "nomadic and uncivilized" habits, making them into "a pastoral and civilized people." Without water to irrigate the lands, however, the reservation would be "practically valueless" and "civilized communities could not be established thereon." The fundamental purpose of the reservation would be "impaired or defeated."
Regarding the second question, McKenna wrote,
it would be extremeto believe that within a year Congress destroyed the reservation and took from the Indians the consideration of their grant, leaving them a barren waste -took from them the means of continuing their old habits, yet did not leave them the power to change to new ones.McKenna, ruling in favor ofthe United States, found it unreasonable to assume that Native Americans would settle on reservation lands to begin farming and grazing without having thewater to successfully pursue those activities. Justice Brewer dissented alone without stating his objections.
Impact
The Court's decision created the "Winters doctrine" which guided the future management of Native reserved water rights. Oddly, for decades after Winters, the issue of Native American water rights was largely ignored. The Winters doctrine was eventually affirmed in Arizona v. California (1963)concerning Lower Colorado River water. The Court went a step further than Winters by actually identifying how to determine the quantity of water desirable for tribal use. The Court ruled the quantity should not be based on the size of the existing reservation population, but on the amount of reservation acreage potentially productive with irrigation.
Some key characteristics of the doctrine included: (1) establishment of an Indian reservation by treaty, statute or executive order included an implied reservation of rights to water sources within and bordering the reservation; (2) the water rights were reserved at the date the reservation was created; (3)the quantity of water reserved for Native American use was the amount sufficient to irrigate all the practical reservation acreage; and, (4) the water rights can not be lost by non-use. Also, those who held water rights prior to creation of a reservation could retain those rights. As a result of Winters, Native American rights blended aspects of appropriative and riparian rights. While the rights became established at the time a reservation was established and the rights of existing users were recognized, rights to water fromstreams within or bordering reservations were tied to the land and could notbe lost because of non-use.
The Winters doctrine also served as a model broader non-Native application. Any time the federal government reserved land for a public purpose, water rights were also provided in sufficient quantity and quality so that the purposefor which the land was designated could be satisfied.
A lingering difficulty with such implied reserved rights was that normally the actual volume of water reserved was not known. For example, concerns were that designation of lands for wilderness purposes would carry some unspecifiedquantity of water. The manner in which water allocations were recognized enormously affected continued development in the West. Many worried that unresolved reserved water rights could limit the efficient use of limited water resources. Furthermore, uncertainty persisted even when rights were awarded sincethe conditions of ownership were still not well defined. Could the rights could be bought, sold, or traded for other water rights? To avoid expensive andlengthy legal battles, many states and tribes pursued complex negotiations in the late twentieth century to specifically establish water allocations forthe various users.
Related Cases
- United States v. Winans, 198 U.S. 371 (1905).
- Arizona v. California, 373 U.S. 546 (1963).
- Cappaert v. United States, 426 U.S. 128 (1976).
Reservation Populations
According to the U.S. Census Bureau, 808,163 people live on the largest Indian reservations--those with 10,000 people or more, which constitute a large portion of the nation's Native American population of 1,878,285. Just over halfof the population of the largest reservations is Native American, a group which includes American Indians and Alaskan Natives. Thus out of more than 808,000 people, 437,431 (54 percent) are Native Americans. This figure, less thana quarter of the nation's total Native American population, suggests a largedegree of movement to non-reservation locales.
The largest tribal area is the Navajo and Trust Lands territory in Arizona, New Mexico, and Utah, which holds 148,451 people, 96 percent of whom are Native American. The next-largest reservation, the Pine Ridge and Trust Lands of Nebraska and South Dakota, is much smaller, with just 12,215 people, of whom 91.5 percent are Native American. The reservation at East Cherokee, North Carolina, has 5,388 Native Americans. Other substantial reservations include FortApache (11,182 Native Americans), Gila River (9,825), and Papago (8,480), all in Arizona.
Statistical Abstract of the United States 1997. Washington, DC: U.S. Government, 1997.
User Comments Add a comment…