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

Foreword

xi Foreword On January 6, 1908, the U.S. Supreme Court handed down its decision in Wintersv.UnitedStates,foreveralteringtherightsofIndiantribesandthelandscape of western water law. The federal government had brought suit against irrigators upstream of the Fort Belknap Indian Reservation in Montana, seeking to enjoin their water diversions that interfered with the Gros Ventre and Assiniboine Tribes’ use of water on the reservation. Although the United States presented several arguments on behalf of the tribes, it prevailed—from the district court through the Supreme Court—on a theory of reserved rights to water. At a time when federal Indian policy favored forced assimilation, the Supreme Court held that when land is set aside for the use of Indian tribes, that reservation of land includes a reservation of water. The Winters doctrine, as it has come to be known, is now a fundamental principle of both federal Indian law and water law. The doctrine of reserved rights to water has expanded beyond Indian reservations to include all federal reservations of land. Its details and contours have been shaped through a century of subsequent litigation and negotiation. In 2008, as the Winters decision reached its hundredth anniversary, the American Indian Law Center, Inc., and the Utton Transboundary Resources Center organized a centennial conference to explore the original decision, xii FOREWORD its subsequent development as doctrine, its importance to Indian tribes and western states, and its future in the twenty-first century. The conference, “The Winters Centennial: Will Its Commitment to Justice Endure?,” was held June 9–12, 2008, at the Santa Ana Pueblo in New Mexico. This book represents much of the discussion that took place over the two and a half days of the conference and includes additional articles submitted by experts in the field. The content is divided into four parts. Part 1 introduces the Winters case and the Winters doctrine, including reenactments of the Supreme Court oral arguments in Winters and two other crucial Supreme Court cases on the reserved water rights doctrine. Part 2 discusses the Winters doctrine broadly in today’s world, raising modern issues of both theory and implementation . Part 3 presents case studies of the Winters doctrine in action, offering a mix of transcripts of discussions from the conference and prepared articles. Finally, part 4 looks to the future, reprinting the remarks of the final conference panel, which was charged with imagining whether the commitment to justice embodied in the Winters doctrine will endure into this century and beyond. —Barbara Cosens —Judith Royster Moscow, Idaho Tulsa, Oklahoma ...