Missouri River and other Water Rights Issues::

Winters and Water Rights in Indian Country

Though the treaties had guaranteed "the perpetual integrity of their land", the Sioux tried but failed to gain generous federal compensation for damages incurred by the Pick-Sloan dams. The Pick-Sloan plans had proceeded without the proper negotiations with Indian tribes and in violation of Indian water rights as protected under the Winters Doctrine, and subsequent decisions. In the Pick-Sloan case, the Corps relied on the government's power of eminent domain to proceed with their plans. By the time the Plan's programme was properly brought to the tribes' attentions in 1949, surveying of and building on forcibly evacuated areas were already taking place.

Federal and Indian water rights came to the judicial fore in 1908, with the so-called Winters Doctrine. In 1907, a federal court ruled in favour of the Fort Belknap Reservation by stating that the Indians possessed a superior right based on treaty to the resources of the Milk River, for the beneficial purpose of irrigating the reservation. This right superseded the 'prior use' right of the state of Montana and its residents who were diverting the river upstream.

In short, the Winters principle (and the body of law subsequent to this) holds that federal government has the right to reserve water for any federal land, including Indian reservations. "Indian reservations are created by Congress with the intention of making them habitable and productive, and whatever water is necessary to fulfill this goal is reserved by implication of the tribe's use" - future as well as present needs and usages (Pevar 1992: 210).¹ Thus Indians have rights to all ground and surface water resources which border, run through, underlie or are contained within reservation land.

In the water-scarce west, all states have a law that privileges the first appropriator of a water resource. This 'first in time, first in right' doctrine means that the first person to divert water has continuing and senior rights; 'junior interests' get the remaining water. But Indians benefit from federal law which holds that Indians are the first appropriators by dint of usage since time immemorial or at least since the date the reservation was established (often prior to the establishment of western states). Western law based on prior appropriation contrasts with the 'riparian' doctrine of water-rich eastern states, where "prior use does not create a vested right to continued use, and in times of scarcity, the available water supply is distributed equitably among all users" (Pevar 1992: 213).

Predictably, Indian water rights as defined by federal government is riddled with contradictions and inconsistencies. We have already seen how the Pick-Sloan Project went ahead without affording Indians the protections guaranteed under the corpus of legal decisions that have made up the Winters Doctrine. As the Sisseton-Wahpeton Dakota attorney, Susan Williams has said, Indian water rights is not a simple process because there is, to date, no coherent federal policy regarding them. Moreover, the federal government has conflicting interests in this area: one, to exert its trust responsibility and protect tribal property interests (in this case, water); two, to protect non-Indian interests in the same water resource; and three, to protect its own financial investments in non-Indian water projects such as canals and reservoirs.

Some writers have also pointed out other flaws inherent in the Winters Doctrine. The 1908 Winters case highlighted not only federal (vis-a-vis state) superiority over water matters but also over Indian water rights. In other words, the case left unclear as to whose water rights were really being enhanced - federal or Indian. As Marianna Guerrero says:

"Left unstated, perhaps deliberately so, in the high court's final articulation of [the Winters case] was whether it was the federal government or the Indians themselves who were considered as having reserved these [water] rights through the treaty-making process. [...] In any event, given the Supreme Court's then recent assertion of absolute US `plenary power' over Indian property in the Lonewolf v. Hitchcock case (1904), it is plain that the justices saw their decision as placing the waters at issue in Winters under federal rather than Indian control" (1992: 193).²

It could also be said that Indian water rights, as apparently supported by the Winters and subsequent cases, has been simply a device for the federal government to exert its power over states.

Notes::

• 1 - Stephen L. Pevar. 1992. The Rights of Indians and Tribes: The Basic ACL U Guide to Indian and Tribal Rights. Second Edition. Carbondale, IL: Southern Illinois University Press.
• 2 - Marianna Guerrero. 1992. "American Indian Water Rights: The Blood of Life in Native North America." Jaimes, M. Annette, ed. The State of Native America: Genocide, Colonization, and Resistance. Boston, Massachusetts: South End Press.

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