The Future of Indian and Federal Reserved Water Rights: The Winters Centennial

3: Winters in Its Historical Context

53 Winters in Its Historical Context chapter 3 Introduction  Barbara Cosens John Shurts is the author of Indian Reserved Water Rights: The Winters Doctrine in Its Social and Legal Context, 1880s–1930s. The book places the case we’re commemorating in its historical context. His work is also important in a broader context. One of the questions that we often discuss when we’re talking about settlements is who really benefits. Is it the tribes? Or is it the non-Indians who are getting the benefits? And you’ll see from John’s review of history that the question was first asked almost the day after the Winters case was decided. It is not a new question. His research also tells a story of how the West has always turned east to the federal government for water relief, not primarily to relieve the pain of Indian water rights but to relieve the pain of prior appropriation. And finally, for those of us with the responsibility of carrying Winters forward, his research reminds us that history matters. Patricia Limerick is the faculty director and chair of the board of the Center of the American West at the University of Colorado. She is also a professor of history at the university and an insightful writer on the history of the American West. She is the author of the 1987 book The Legacy of Conquest. She reminds us 54 PART I that history, even in our romanticized West, is no less complex then the times in which we live and that western expansion played a major role in defining and shaping federalism. The Historical Context of Winters  John Shurts Milk River Valley News, Harlem, Montana, January 9, 1908: INDIANS GET WATER THE SUPREME COURT OF THE UNITED STATES AFFIRMS JUDGE HUNT’S RULING IN THE RIVER WATER RIGHT SUIT— RESULT IS QUITE SATISFACTORY TO ALL  The decision was received in this city with much joy as we all know that this will have a tendency to hasten construction on diversion dams, laterals and storage reservoirs to hold and divert the unlimited flood waters [of the Milk River] of which there is enough going to waste every year to irrigate every foot of ground between here and Mondak. Any story about Winters and its place in American history has to make room for this reaction from the good people of Harlem, Montana, or at least from the good editor of its newspaper. I have been intrigued about the law and the history of water ever since I was a youngster and interested in Winters almost from the beginning. But the stories I heard about Winters did not make a lot of sense to me. So I went looking to see what I could find, and I focused on three things. One was to tell the story of the litigation itself. The second was to place that litigation in its local context: What was going on in the Milk River valley just after the turn of the last century, and how did Winters fit in? How did people understand it? Third, I wanted to see to what extent people outside of the valley knew of, reacted to, or made use of Winters in the few first decades afterward—what I came to call the “Work of Winters.” What follows is just a brief survey of what I found. And I am going to discuss it in response to the things I have heard. The first story concerns the litigation itself. The story that has been told is that the U.S. attorney who filed the case thought that he had a valid prior appropriation claim for water from the Milk River for the irrigation project at the Fort Belknap Reservation, and then the claim fell apart. And so he fumbled 55 Winters in Its Historical Context about and concocted a novel theory of a water right based on the 1888 reservation agreement, and sort of “oops” he won and now what do we do. It is a story that fits with a view of Winters and of the Winters doctrine as an anomaly in western water law, as something that was outside and was added on. I did not expect this to be the case because it is not how good attorneys work, and I was right. U.S. Attorney Carl Rasch knew going into the litigation that he did not have the...