| Line | In Winters v. United States (1908), the Supreme |
| | Court held that the right to use waters flowing through |
| | or adjacent to the Fort Belknap Indian Reservation |
| | was reserved to American Indians by the treaty |
| (5) | establishing the reservation. Although this treaty did |
| | not mention water rights, the Court ruled that the |
| | federal government, when it created the reservation, |
| | intended to deal fairly with American Indians by |
| | reserving for them the waters without which their |
| (10) | lands would have been useless. Later decisions, citing |
| | Winters, established that courts can find federal rights |
| | to reserve water for particular purposes if (1) the |
| | land in question lies within an enclave under exclusive |
| | federal jurisdiction, (2) the land has been formally |
| (15) | withdrawn from federal public lands—i.e., withdrawn |
| | from the stock of federal lands available for private |
| | use under federal land use laws—and set aside |
| | or reserved, and (3) the circumstances reveal the |
| | government intended to reserve water as well as land |
| (20) | when establishing the reservation. |
| | Some American Indian tribes have also established |
| | water rights through the courts based on their |
| | traditional diversion and use of certain waters prior |
| | to the United States’ acquisition of sovereignty. For |
| (25) | example, the Rio Grande pueblos already existed |
| | when the United States acquired sovereignty over |
| | New Mexico in 1848. Although they at that time |
| | became part of the United States, the pueblo lands |
| | never formally constituted a part of federal public |
| (30) | lands; in any event, no treaty, statute, or executive |
| | order has ever designated or withdrawn the pueblos |
| | from public lands as American Indian reservations. |
| | This fact, however, has not barred application of the |
| | Winters doctrine. What constitutes an American Indian |
| (35) | reservation is a question of practice, not of legal |
| | definition, and the pueblos have always been treated |
| | as reservations by the United States. This pragmatic |
| | approach is buttressed by Arizona v. California (1963), |
| | wherein the Supreme Court indicated that the manner |
| (40) | in which any type of federal reservation is created |
| | does not affect the application to it of the Winters |
| | doctrine. Therefore, the reserved water rights of |
| | Pueblo Indians have priority over other citizens’ water |
| | rights as of 1848, the year in which pueblos must be |
| (45) | considered to have become reservations. |
