Understanding the gravity of the problem with water scarcity in the western United States is complex enough before considering the doctrine of Federal Reserved Rights. Professor Alexader Pearl in his recent article, Homelands Not Graveyards, helps readers navigate and understand this complex mix of doctrines, policies, and priorities that help the law develop in this space.
More specifically, Professor Pearl focuses on Federal Reserved Rights that are known as “Winters rights” in the context of federal Indian law water rights jurisprudence. These implied water rights were first recognized by the United States Supreme Court in 1908 in Winters v. United States, 207 U.S. 564, a case involving the Fort Belknap Reservation created by agreement in 1888.
The Winters Court resolved a dispute between non-tribal prior appropriators and Indian tribes by holding that the federal government had the power to reserve the waters of the Milk River to support the irrigation of the dry and arid portions of the reservation. These reserved water rights were based on the 1888 agreement, whether express or implied, and could not be appropriated under state law or repealed when Montana was admitted to the Union in 1889. Id. at 577.
The doctrine of Federal Reserved Rights implicitly reserves an amount of water sufficient to satisfy the purposes for which the United States reserved public land “for uses such as Indian reservations, military reservations, national parks, forest[s], or monuments.”1
Professor Pearl positions his article in the uncertainty of water rights for tribal communities and their rights to tribal homelands in the Colorado River Basin after the Supreme Court’s decision in Arizona v. Navajo Nation, 599 U.S. 555 (2023).
His article brings together the primary foundations of federal Indian law to understand the Court’s decision as “the collision of Winters principles, treaty rights, and trust law.” (P. 1725.) As the Court in Navajo Nation acknowledged at the outset, the problem of water scarcity in the western United States has been with us for a long time, but it is getting worse with climate change, and the period from 2000 through 2022 was one of the driest in the last 1200 years. Arizona v. Navajo Nation, 599 U.S. at 561.
People in the western United States must use water from the resources available, and federal reserved rights are protected against state water regimes.
To illustrate the principles of federal Indian law establishing sovereignty “akin to a guardian-ward relationship with the federal government” (P. 1715), Pearl discussed Johnson v. M’Intosh, Cherokee Nation v. Georgia, Worcester v. Georgia, Ex Parte Crow Dog, and United States v. Kagama.
The first three cases, known as Marshall’s Trilogy, established tribal sovereignty with exclusive federal power over Indian affairs. However, the nature and source of congressional power over Indian affairs remains unclear after Crow Dog and Kagama. (Pp. 1720-21.) Pearl then viewed the validity of treaty rights through the decisions of Lone Wolf v. Hitchcock and United States v. Winans and perceives the Winans decision as strengthening treaty rights and confirming the federal role over Indian affairs. He reviewed the trust law decisions in United States v. Mitchell I & II and concluded that the Mitchell line of cases is relevant to water rights because resources reserved by treaty are trust assets. In addition, these cases also confirm that the federal government is bound by both treaty and a trustee’s fiduciary duty. (P. 1723.)
Finally, the principles from the Court’s opinion in Winters “that reservations included that amount of water necessary to provide a permanent home for the tribal community even if such rights were not expressly laid out in the treaty” (P. 1725), combine with these other foundations of sovereignty, treaty rights, and trust law, to set the stage for the Navajo Nation’s request in Arizona v. Navajo Nation. The Navajo Nation sought to “compel water resource planning, assessment, and other conduct as the basis of their request for equitable relief” because “the United States owes the Nation trust duties in managing water resources.” (P. 1725.)
Professor Pearl emphasizes one of many problems with the Navajo Nation opinion as “engag[ing] in legal analysis concerning Mitchell and progeny while ignoring the relevance of the relief sought.” (P. 1731.) Instead of asking whether there is a trust duty to assist in water resource assessment and planning, and then asking whether the trustee breached the duty, the majority resorted to using the United States v. Jicarilla Apache Nation2 decision that sought legal damages, not equitable relief as sought by the Navajo Nation. (P. 1734.) If the Court could misunderstand the difference between the remedies sought in trust claims, it could also fail to distinguish between treaty claims and trust claims, which follow different standards of interpretation. (P. 1736.)
Pearl also expresses disappointment that the Court rejected using Indian canons of construction as the basis for treaty interpretation, the exact place where they should apply. (P. at 1733.)
The Navajo Nation Court affirmed the Winters doctrine that “[t]he 1868 treaty reserved necessary water to accomplish the purpose of the Navajo Reservation.” Arizona v. Navajo Nation, 599 U.S. at 569. However, it held that while the United States maintains a general trust relationship with Indian tribes, there is not a duty “to take affirmative steps to secure water for the Tribe.” Id. at 566.
Professor Pearl’s article is a valuable read because it makes clear the implications of this decision on the security of Winters rights as tribal governments cannot rely on federal government support in their state negotiations over water rights. (P. 1737.) Adding insecurity to Winters rights, and federal reserved rights in general, will intensify the struggle of the multitude seeking access to water resources in times of climate change, shrinking water availability, and increasing water demands.
- Federal Reserved Water Rights – BLM National NEPA Register. Although federal reserved rights have been extended to non-Indian federal uses, for purposes of this Jot, only Winters rights as applied to federal Indian law water rights will be addressed.
- 564 U.S. 162 (2011).
