An Overview of Indian Water Rights in California – Part 2 Federal Winters Rights
By Mike Godbe, CILS Bishop office Staff Attorney
This is the second in a three-part series providing an overview of Indian Water Rights in California. This installment focuses on federal reserved rights, also known as Winters rights. Part 1 on state water rights may be found here.
The Winters doctrine is a federal common law doctrine that establishes that an American Indian tribe has the right to access enough water to meet the needs of the tribe, even where there is no treaty provision expressly recognizing such a right. The doctrine states that when the United States withdraws land from the public domain to establish an Indian reservation, the federal government implicitly reserves the amount of water necessary to fulfill the purpose of the reservation. The doctrine is based on the idea that when Congress reserved lands for the Indians, it did so to ensure that the land would be useful and sustain the tribal community.
The Winters doctrine derives its name from the 1908 Supreme Court case Winters v. United States. The Court held that the federal government had transitioned the Fort Belknap tribal members in Montana from a nomadic lifestyle to an agricultural and pastoral way of life. As demonstrated in Winters and subsequent cases, the purpose of creating a reservation is a question of Congressional intent, inferred based upon the specific legal documents and facts surrounding the creation of the reservation.
In creating the Fort Belknap Reservation, Congress sought to force the A’aninin (Gros Ventre) and the Nakoda (Assiniboine) people to give up large areas of land that they moved freely in and make them into farmers confined to a much smaller area. The Winters doctrine holds that, by reserving federal land for this purpose, Congress impliedly reserved the water rights necessary for the purpose (agriculture). Ironically, the case that enshrined federal reserved water rights for Indian people came about in the same federal policy era that oversaw the reduction and breaking-up of tribal land and tribal governments. Such are the paradoxes and contradictions contained within the long history of Federal Indian Law.
Courts have noted that reservations were created to serve as homelands for tribes and thus require enough water to account for “changing circumstances” and “meet[ing] future as well as present needs.” Some courts have taken this rationale to heart, for example, by holding that the purpose of reservations is to be construed liberally, such that the “purpose” of a reservation is amenable to modern policies of self-determination.[1]
Because Winters rights are implied as those rights reserved to effect Congress’s purpose, they do not apply to situations where Congress explicitly provides for a tribe’s water rights when it creates a reservation. The idea here is that it is not necessary to envision what Congress intended with regard to water rights when Congress has expressly stated its intensions.
In 2017, the 9th Circuit Federal Court of Appeals ( includes California) held that the Winters doctrine applies to groundwater.[2]
Winters rights contain features of both riparian and appropriative water law systems (see Part 1 of this series). In a riparian systems, Winters rights are not lost through non-use. Under an appropriative systems, the tribe’s priority date will correspond to the date the reservation was created, which can be junior or senior to neighboring water interests. Although Winters rights are federal and thus generally superior to state-law-created water rights, it is an established understanding that Winter rights do not trump the superior rights of prior appropriators under state law.[3]
Winters Rights and Allotments
Allotments are federal lands held in trust for individual Native Americans rather than for tribes. There are generally two types of allotments: 1) those that were created from former tribal lands and are within the boundaries of the reservation that was broken up (as initiated by the General Allotment Act or “Dawes” Act of 1877), and 2) ones that were created from the public domain, and exist separately and independently from any tribe’s reservation (“public domain allotments”).
Courts have conclusively held that Winters rights apply to allotments within the bounds of reservations, that the priority date extends back to the earlier creation of the reservation – not the creation of the allotment, and that allottees are entitled to a fair share of the tribal reserved water rights proportional to the relevant size of the irrigable lands of the allotment to that of the entire reservation. Colville Confederated Tribes v. Walton, 647 F.3d 42, 53 (9th Cir. 1981).
In contrast, we can find no case law explicitly applying Winters rights to public domain allotments. However, considering the purpose of public domain allotments, federal case law regarding the reserved rights doctrine applying to allotments within reservations, and the historical use of public domain allotments to provide land for the allegedly “landless Indians,” there is a strong argument that the Winters doctrine also applies to public domain allotments. Indeed, it has been found to apply to all other land held in trust for Indian people.
What’s Next
In part 3 of this series, we will explore California’s Integrated Regional Water Management system under California law and how it can create opportunities for both recognized and unrecognized tribes to engage with other stakeholders and obtain funding for water-related projects.
[1] In re Gila River Sys. & Source, 35 P.3d 68, 77 (Ariz. 2001).
[2] Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, 849 F.3d 1262 (9th Cir. 2017).
[3] See Arizona v. California, 373 U.S. 546, 600 (1963); Cappaert v. United States, 426 U.S. 128, 138 (1976); see also Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, 849 F.3d 1262, 1268 (9th Cir. 2017).
