The judicially crafted Winters Doctrine (1908) provides water for the needs of Native Americans who reside on federally reserved lands. This judicial guarantee, while not absolute, is highly significant given the demands for this critical natural resource in a region where water is often not abundantly available.
Water policy in the Great Plains is shaped by powerful political forces. Economic demands translate into political pressures and ultimately into water law. State water laws are generally designed to allocate water for "beneficial uses," following the doctrine of prior appropriation. Stressing uses, rather than needs, is inconsistent with Native American ideals, whereby water, like other aspects of the environment, is connected to a higher sacred order. Consequently, European American water schemes have often been in conflict with Native American concepts.
In 1908, however, Native Americans prevailed in the landmark case Winters v. United States. The case involved the Gros Ventres and Assiniboines of the Fort Belknap Reservation in Montana and their right to use the water of the Milk River. When farmers upstream diverted water from the river, the United States brought an injunction against them, reasoning that this left insufficient water for agriculture on the reservation. The farmers appealed. On January 6, 1908, the Supreme Court ruled in favor of the United States and the Native Americans, arguing that the establishment of the Fort Belknap Reservation entitled the Native Americans to perpetual use of the water that it contained. Their rights were "reserved" at the date of establishment (1888), and, contrary to the doctrine of prior appropriation, those rights could not be lost through nonuse.
The Winters Doctrine was a major victory for all Native Americans, serving notice that state laws are secondary to federally reserved water rights and preventing prior appropriation schemes from extinguishing Native American needs. In 1976, in Cappaert v. United States, the doctrine was extended to groundwater use on or near federally created reservations. Subsequently, however, an increasingly conservative Supreme Court has ruled against tribes in a number of water rights disputes. While the Winters Doctrine protects Native American water rights, this protection is still vulnerable to changes in the prevailing political climate.
Peter J. Longo University of Nebraska at Kearney
Burton, Lloyd. American Indian Water Rights and the Limits of Law. Lawrence: University Press of Kansas, 1991.
Hundley, Norris. "The Winters Decision and Indian Water Rights: A Mystery Reexamined." In The Plains Indians of the Twentieth Century, edited by Peter Iverson. Norman: University of Oklahoma Press, 1985: 77–106.