Amicus Curiae Brief — Arizona, et al., Petitioners v. Navajo Nation, et al.

Supreme Court briefFeb 8, 2023

Ask Donna

What actually matters in this document.

Text

Nos. 21-1484 & 22-51

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------STATE OF ARIZONA, et al.,

Petitioners,

NAVAJO NATION, et al.,

Respondents.

---------------------------------♦--------------------------------DEPARTMENT OF THE INTERIOR, et al.,

Petitioners,

NAVAJO NATION, et al.,

Respondents.

---------------------------------♦--------------------------------On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF TRIBAL NATIONS AND

INDIAN ORGANIZATIONS AS AMICI CURIAE

IN SUPPORT OF THE NAVAJO NATION

---------------------------------♦--------------------------------HEATHER D. WHITEMAN RUNS HIM

Counsel of Record

TRIBAL JUSTICE CLINIC

ROGERS COLLEGE OF LAW

UNIVERSITY OF ARIZONA

1145 N. Mountain Avenue

Post Office Box 210176

Tucson, AZ 85721

(520) 626-9762

whitemanrunshim@arizona.edu

MONTE MILLS

NATIVE AMERICAN LAW CENTER

UNIVERSITY OF WASHINGTON

SCHOOL OF LAW

4293 Memorial Way Northeast

Seattle, WA 98195

JOHN E. ECHOHAWK

STEVEN C. MOORE

DAVID L. GOVER

JOE M. TENORIO

ADA MONTAGUE STEPLETON

NATIVE AMERICAN RIGHTS FUND

1506 Broadway

Boulder, CO 80302

MORGAN E. SAUNDERS

NATIVE AMERICAN RIGHTS FUND

950 F St., N.W., Suite 1050

Washington, D.C. 20004

WESLEY JAMES FURLONG

SYDNEY TARZWELL

NATIVE AMERICAN RIGHTS FUND

745 West 4th Avenue,

DYLAN R. HEDDEN-NICELY

Suite 502

UNIVERSITY OF IDAHO COLLEGE OF LAW Anchorage, AK 99501

875 Perimeter Drive

Moscow, ID 83843

Attorneys for Amici Curiae

February 8, 2023

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

iii

INTEREST OF AMICI CURIAE .........................

SUMMARY OF ARGUMENT ..............................

ARGUMENT ........................................................

The Winters Doctrine is a Foundational

Component of Water Resource Management in the West........................................

A. Prior to Winters v. United States, Water Resources Reserved for Tribal Nations were Rapidly Appropriated by

Non-Indians .........................................

B. The Reserved Rights Doctrine Protects

Federal Promises Made to Tribal Nations

in the Face of Widespread Appropriations of Land, Water, and Other Resources Across the American West ......

C. The Winters Doctrine Gives Effect to

the Central Federal Promise of a

Tribal Homeland ................................. 10

II.

The Winters Doctrine is Foundational to

the United States’ Exercise of its Trust

Duties to Protect and Secure Tribal Reserved Water Rights .................................. 16

A. Winters is the foundation for decisions

in extensive water adjudications......... 16

B. Winters is the foundation for extensive

water settlements ................................ 20

TABLE OF CONTENTS—Continued

Page

C. Winters articulates the mandate by

which the United States measures the

fulfillment of its trust duties to Tribal

Nations when protecting, securing, or

negotiating tribal water rights ............ 22

III.

States’ Reliance on Winters also Contributes to Certainty in Water Resource Management ..................................................... 27

A. Western States’ Water Policy Experts

Recognize the Importance of Water Security for Tribal Nations and Fulfillment of Winters-based Claims ............. 29

B. When States Recognize and Respect

Winters Rights, Certainty is Achievable ........................................................ 31

CONCLUSION..................................................... 33

APPENDIX A

List of Amici Curiae ............................................ App. 1

APPENDIX B

Table 1 – List of Congressionally Authorized

Settlements ...................................................... App. 3

iii

TABLE OF AUTHORITIES

Page

CASES

Agua Caliente Band of Cahuilla Indians v.

Coachella Valley Water Dist., 849 F.3d 1262

(2017) ................................................................. 16, 18

Arizona v. California, 373 U.S. 546 (1963).... 14-17, 20, 27

Arizona v. San Carlos Apache Tribe of Arizona, 463

U.S. 545 (1983) ........................................................19

Cappaert v. United States, 426 U.S. 128 (1976) ... 17, 28

Colo. River Water Cons. Dist. v. United States,

424 U.S. 800 (1976) ............................................. 6, 19

Colville Confederated Tribes v. Walton, 647 F.2d

42 (9th Cir. 1981).....................................................16

Conrad Inv. Co. v. United States, 161 F. 829 (9th

Cir. 1908) .................................................................15

Herrera v. Wyoming, 139 S. Ct. 1686 (2019) ................8

In re CSRBA Case No. 49576 Subcase No. 917755, 448 P.3d 322 (Idaho 2019) ....................... 16, 19

In re Gen. Adjudication of All Rts. to Use Water

in Big Horn River Sys., 48 P.3d 1040 (Wyo.

2002) .................................................................. 16, 19

In re Gen. Adjudication of All Rts. to Use Water

in the Gila River Sys., 35 P.3d 68 (Ariz. 2001) .......19

In re Yakima River Drainage Basin, 850 P.2d

1306 (Wash. 1993) ...................................................16

In re Yakima River Drainage Basin, 296 P.3d

835 (Wash. 2013) .....................................................32

TABLE OF AUTHORITIES—Continued

Page

Jennison v. Kirk, 98 U.S. 453 (1878) .............................4

Kobobel v. State, 249 P.3d 1127 (Colo. 2011) ..............28

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) ............................................9

New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir.

1976) ........................................................................16

Report from Special Master Simon H. Rifkind,

Arizona v. California, 373 U.S. 546 (1963) (report filed as 364 U.S. 940 (1961) ...............................7

State ex rel. Greely v. Confederated Salish &

Kootenai Tribes of Flathead Rsrv., 712 P.2d

754 (Mont. 1985) .....................................................32

State of New Mexico, ex rel. State Engineer v.

United States of America, 425 P.3d 723 (N.M.

Ct. App. 2018) ..........................................................21

United States v. Abousleman, 976 F.3d 1146

(10th Cir. 2020)........................................................16

United States v. Adair, 723 F.2d 1394 (9th Cir.

1983) ........................................................................16

United States v. Ahtanum Irr. Dist., 236 F.2d 321

(9th Cir. 1956)..........................................................15

United States v. Rio Grande Dam & Irrigation

Co., 174 U.S. 690 (1899) ............................................5

United States v. Wash., 969 F.2d 752 (9th Cir.

1992), cert. denied, 507 U.S. 1051 (1993) ..................8

United States v. Winans, 198 U.S. 371 (1905) .... 9, 10, 12

TABLE OF AUTHORITIES—Continued

Page

Washington v. Washington State Commercial

Passenger Fishing Vessel Assoc., 443 U.S. 658

(1979) .........................................................................8

Wash. State Dep’t of Licensing v. Cougar Den,

Inc., 139 S. Ct. 1000 (2019) ................................. 9, 28

Winters v. United States, 207 U.S. 564

(1908) ....................................... 1, 10-15, 17, 21, 24-33

STATUTES AND RESOLUTIONS

Act of May 1, 1888, ch. 213, 25 Stat. 113 ...................10

Act of July 28, 1978, Pub. L. No. 95-328, 92 Stat.

409 ...........................................................................10

Colorado Ute Water Rights Settlement Act of

1988, Pub. L. No. 100-585, 102 Stat. 2978..............25

Desert Lands Act of March 3, 1877, ch. 107, 19

Stat. 377 (codified as amended 43 U.S.C.

§§ 321-339) ................................................................5

Hualapai Tribe Water Rights Settlement Act of

2022, Pub. L. No. 117-349 (Jan. 5, 2023) ................20

Jicarilla Apache Tribe Water Rights Settlement

Act of 1992, Pub. L. No. 102-441, 106 Stat.

2237 .........................................................................25

Little Shell Tribe of Chippewa Indians Restoration Act of 2019, S.51, 116th Cong. § 4 (2019)..... 31, 32

Mont. Code Ann. § 85-2-701(1) (2021)........................31

Omnibus Public Land Act of 2009, Pub. L. No.

111-11, § 10603, 123 Stat. 991 .................... 21, 25, 26

TABLE OF AUTHORITIES—Continued

Page

Pub. L. No. 117-58, 135 Stat. 429 (2021) ....................26

San Luis Rey Indian Water Rights Settlement

Act of 1988, Pub. L. No. 100-675, 102 Stat.

4000 .........................................................................25

Truckee-Carson Pyramid Lake Water Settlement Act of 1990, Pub. L. No. 101-618, 104

Stat. 3289 ................................................................25

Western Water Policy Review Act of 1992, Pub.

L. No. 102-575 .........................................................30

OTHER LEGISLATIVE AND EXECUTIVE BRANCH MATERIALS

CHARLES V. STERN, CONG. RSCH. SERV., R44148,

INDIAN WATER RIGHTS SETTLEMENTS (2022) ... 20, 23, 25

Criteria and Procedures for Participation of Federal Government in Negotiating for Settlement of Indian Water Rights Claims, 55 Fed.

Reg. 9223 (Mar. 12, 1990) .................................. 23, 24

Department of the Interior Press Release, Bipartisan Infrastructure Law Supports $580

Million Investments to Fulfill Indian Water

Rights Settlements (Feb. 2, 2023), https://tiny

url.com/e7r4jdjb ......................................................26

First Annual Report of the Reclamation Service

from June 17 to December 1, H.R. DOC. NO.

(1903) .........................................................................7

vii

TABLE OF AUTHORITIES—Continued

Page

Hearing on H. Res. 320, H.R. 4832, H.R. 5001,

and H.R. 5345 Before the Subcomm. on Water,

Oceans, and Wildlife of the H. Comm. on Nat.

Res., 117th Cong. (2021) (Written Testimony

of the Western States Water Council) ....................29

Indian Water Settlements: Hearing Before the H.

Comm. on Nat. Res., 110th Cong. 7 (Apr. 16,

2008) (statement of Michael Bogert, Chairman, Working Group on Indian Water Settlements) ......................................................................27

MEMORANDUM, OFFICE OF THE SOLICITOR TO THE

SECRETARY OF THE INTERIOR, NAVAJO INDIAN IRRIGATION PROJECT WATER ENTITLEMENT OF THE

NAVAJO TRIBE (July 30, 1980), https://tinyurl.

com/cmatptsk ..........................................................21

Jimmy Carter, U.S. President, Federal Water

Policy Message to the Congress (June 6, 1978),

https://tinyurl.com/3ujshvtf ....................................23

Richard Nixon, A Better Day for the American

Indian, Omaha, Nebraska (Sept. 27, 1968),

https://tinyurl.com/reasj7tr.....................................23

U.S. GOV’T ACCOUNTING OFF., CED-78-176, RESERVED WATER RIGHTS FOR FEDERAL AND INDIAN RESERVATIONS: A GROWING CONTROVERSY

IN NEED OF RESOLUTION (1978) ...............................31

U.S. Western Water Policy Review Advisory

Comm’n, Water in the West: Challenge for the

Next Century, Report of the Western Water

Policy Review Advisory Commission (1998) ..........30

viii

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

THE DECLARATION OF INDEPENDENCE (U.S. 1776) ..........8

BARTON H. THOMPSON, JR. ET AL., LEGAL CONTROL

OF WATER RESOURCES (6th ed. 2018) ........................6

CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN: LAND, WATER, AND THE FUTURE OF THE

WEST (1992) ...............................................................6

COHEN’S HANDBOOK OF FEDERAL INDIAN LAW

(NELL JESSUP NEWTON ed. 2012) ...............................8

Dale D. Goble, Prior Appropriation and the Property Clause: A Dialogue of Accommodation, 71

OR. L. REV. 381 (1992) ..............................................5

Daniel McCool, Searching for Equity, Sovereignty, and Homeland, in CORNERSTONE AT THE

CONFLUENCE: NAVIGATING THE COLORADO RIVER

COMPACT’S NEXT CENTURY (Jason A. Robison

ed., 2022) ............................................................. 6, 18

J. Farrell et al., Effects of Land Dispossession

and Forced Migration on Indigenous Peoples

in North America 374 SCIENCE 57, https://tiny

url.com/yc2xk4jb .......................................................4

JOHN SHURTS, INDIAN RESERVED WATER RIGHTS:

THE WINTERS DOCTRINE IN ITS SOCIAL AND LEGAL CONTEXT, 1880S-1930S (2000) .................... 10, 11

Judith Royster, Water, Legal Rights, and Actual

Consequences: The Story of Winters v. United

States, in INDIAN LAW STORIES (Goldberg et al.

eds., 2011) .......................................................... 10, 11

TABLE OF AUTHORITIES—Continued

Page

Philip P. Frickey, Marshalling Past and Present:

Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L.

REV. 381 (1993)..........................................................8

REED D. BENSON ET AL., WATER RESOURCES MANAGEMENT: A CASEBOOK IN LAW AND PUBLIC POLICY (8th ed. 2021) .......................................................4

ROBERT T. ANDERSON ET AL., AMERICAN INDIAN

LAW: CASES AND COMMENTS (4th ed. 2020)................5

SANDRA B. ZELLMER & ADELL AMOS, WATER LAW

IN A NUTSHELL (6th ed. 2021) ....................................5

Western States Water Council, Resolution #454

In Support of Indian Water Rights Settlements

(Oct. 15, 2020) .........................................................29

Western States Water Council, Resolution #465

Universal Access to Reliable, Clean Drinking

Water for Federally Recognized Indian Tribes

and Alaska Native Communities (Mar. 25,

2021) ........................................................................30

INTEREST OF AMICI CURIAE1

Amici curiae are a diverse coalition of thirty-seven

federally recognized Tribal Nations listed in Appendix

A, and three intertribal organizations, the San Luis

Rey Indian Water Authority (“SLRIWA”); the National

Congress of American Indians (“NCAI”), and the Affiliated Tribes of Northwest Indians (“ATNI”). Located

in states across the American West, Amici and their

members rely on reserved water rights for commercial,

industrial, and residential uses as well as agriculture,

fishing, and cultural and spiritual practices.

Tribal Nation Amici include the Assiniboine and

Gros Ventre Tribes of the Fort Belknap Indian Community of the Fort Belknap Reservation, whose rights

were at issue in Winters v. United States, 207 U.S. 564

(1908). Relying on the foundational holding of that

case, now known as the Winters Doctrine, Tribal Nation Amici have participated in all stages of recognizing, quantifying, protecting, and enforcing their

federally reserved water rights and worked for decades

with all water users in their respective regions to ensure sound water management practices promoting

economic development and preserving core environmental values. Amicus SLRIWA is an intertribal governmental entity created by the federally recognized

No counsel for any party authored this brief in whole or in

part, and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this

brief. No entity or person aside from amici curiae, their members,

and their counsel made any monetary contribution intended to

fund the preparation or submission of this brief.

La Jolla, Pala, Pauma, Rincon, and San Pasqual Bands

Mission Indians in California, as part of their congressionally-ratified water settlement. Amicus NCAI, established in 1944, is the oldest and largest national

organization comprising federally recognized Tribal

Nations and their citizens. Amicus ATNI, formed in

1953, represents fifty-seven Tribal Nations from

across Oregon, Idaho, Washington, Alaska, California

and Montana. Amici are committed to protecting reserved water rights, which are foundational to their

sovereignty and necessary for the health and welfare

of their tribal citizens.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

The Winters Doctrine recognizes and gives effect

to the promises made by the United States in treaties,

congressionally ratified agreements, and executive orders that Tribal Nations would retain permanent and

viable homelands. These promises, made in exchange

for the Tribal Nations’ cession of billions of acres of

land, paved the way for the non-Indian settlement of

the West. Although every tribal homeland is unique,

invariably, each requires water to be livable. Applying

the canons of construction this Court has developed as

part of its federal Indian law jurisprudence, as well as

the history and circumstances surrounding the creation of each individual reservation, the Winters Doctrine holds that the United States promised to provide

water sufficient to fulfill the purposes for which the

reservations were created.

Concomitant with the promise to reserve water

rights is the corresponding duty to protect and deliver

on that promise and avoid rendering those rights

meaningless through obstruction, depletion, or diversion to more junior users. In this way, the Winters Doctrine is a pathway for ensuring the United States

fulfills its solemn obligations to Tribal Nations. The

United States—through both Congress and the Executive—has repeatedly and expressly reaffirmed its

understanding of these obligations. Petitioners here

articulate no reason why the Lower Colorado River Basin should be treated differently. This Court should

once again ensure the United States honors its obligations.

In the 115 years since Winters v. United States, the

Doctrine solidified into an integral part of the fabric

that makes up Western water management. The Winters Doctrine forms the basis for extensive adjudication

and settlement of claims by Tribal Nations to water

rights. Today, millions of tribal and non-tribal citizens

benefit from the certainty provided by the Winters Doctrine.

---------------------------------♦---------------------------------

ARGUMENT

The Winters Doctrine is a Foundational

Component of Water Resource Management in the West.

A. Prior to Winters v. United States, Water

Resources Reserved for Tribal Nations

were Rapidly Appropriated by NonIndians.

When Europeans first approached what is today

the continental United States, Indigenous peoples controlled over 1.73 billion acres (7 million km2) of land. J.

Farrell et al., Effects of Land Dispossession and Forced

Migration on Indigenous Peoples in North America 374

SCIENCE 57, https://tinyurl.com/yc2xk4jb. Today, Tribal

Nations retain an ownership interest in just 6.1 percent (105 million acres/426,598 km2) of the land they

used to control, a reduction of 93.9 percent. Id. For the

American West, that part of the country west of the

100th meridian, the turning point came in the middle

of the nineteenth century. See Jennison v. Kirk, 98 U.S.

453, 457-59 (1878). This expansion was particularly

impactful to water resources, ultimately resulting in a

new water rights regime that was largely non-existent

when the federal government negotiated treaties with

sovereign Tribal Nations. REED D. BENSON ET AL., WATER RESOURCES MANAGEMENT: A CASEBOOK IN LAW AND

PUBLIC POLICY 797-98 (8th ed. 2021).

The hydrology and climate of the American West

required a different approach than the common law’s

riparian rights doctrine recognized in the eastern

United States.2 State authority to fundamentally alter

the law governing water resources was initially uncertain. See Dale D. Goble, Prior Appropriation and

the Property Clause: A Dialogue of Accommodation, 71

OR. L. REV. 381, 390-91 (1992). A series of federal public land laws—culminating in the Desert Lands Act

of March 3, 1877, ch. 107, 19 Stat. 377 (codified as

amended 43 U.S.C. §§ 321-339)—collectively “recognized

and assented” to state authority to change “th[e] common law rule and permit the appropriation of the flowing waters for such purposes as [they] deem[ ] wise.”

United States v. Rio Grande Dam & Irrigation Co., 174

U.S. 690, 703, 706 (1899). However, the Court highlighted that Congress’ accommodation of the states’

authority over water could not “destroy the right of the

United States, as the owner of lands bordering on a

stream, to the continued flow of its waters; so far at

least as may be necessary for the beneficial uses of the

government property.” Id. at 703. Since its beginning,

Western water law has been defined by the interrelationship between federal law and the laws of the

Western states that adopted the prior appropriation

doctrine to govern water rights. See Goble, supra, at

399-408; see also ROBERT T. ANDERSON ET AL., AMERICAN

INDIAN LAW: CASES AND COMMENTS 741 (4th ed. 2020).

“In a riparian jurisdiction, the owner of land bordering a

waterbody . . . may make reasonable use of the water on the riparian land if the use does not interfere with reasonable uses of

other riparian owners.” SANDRA B. ZELLMER & ADELL AMOS, WATER

LAW IN A NUTSHELL 15 (6th ed. 2021).

Under the prior appropriation doctrine, water

rights are acquired by diverting unappropriated water

from its natural source and continually applying it to

some beneficial use. Colo. River Water Cons. Dist. v.

United States, 424 U.S. 800, 805 (1976). During periods

of scarcity, “priority among confirmed rights is determined according to the date of initial diversion.” Id.

The doctrine’s basic command that ‘first in time is first

in right’ incentivized rapid development and use of

scarce water resources with little regard for conservation, efficiency, or equitable allocation. See BARTON H.

THOMPSON, JR. ET AL., LEGAL CONTROL OF WATER RESOURCES 178 (6th ed. 2018).

Prior appropriation’s focus on the self-serving use

of water was central to nineteenth century policies

that encouraged the “filling up [of ] the ‘empty’ western

half of the nation.” CHARLES F. WILKINSON, CROSSING

THE NEXT MERIDIAN: LAND, WATER, AND THE FUTURE

OF THE WEST 236 (1992); see also id. at 231-59. The

scheme, however, did not account for tribal water needs,

nor many Tribal Nations’ nascent understanding of

large-scale agriculture. As a result, the prior appropriation doctrine served “to divert water away from tribal

homelands and to non-Native farms and cities.” Daniel

McCool, Searching for Equity, Sovereignty, and Homeland, in CORNERSTONE AT THE CONFLUENCE: NAVIGATING

THE COLORADO RIVER COMPACT’S NEXT CENTURY 146

(Jason A. Robison ed., 2022). In the zero-sum game between the politically powerful Western water lobby

and Tribal Nations, the Tribal Nations often lost. Id. at

151; see also Report from Special Master Simon H.

Rifkind, at 261, Arizona v. California, 373 U.S. 546

(1963) (report filed as 364 U.S. 940 (1961)). As the first

annual report of the Reclamation Service admonished:

[t]he history of . . . Indians on arid lands has

shown that unless protected with great care

the rights to the use of water on Indian lands

have been gradually lost through neglect or

oversight and the mere allotment of land

without carefully guarding the future use of

the necessary water has resulted disastrously

to the Indians.

First Annual Report of the Reclamation Service from

June 17 to December 1, H.R. DOC. NO. 57-79, at 289

(1903). This oblique reference to inhumane turn-ofthe-century federal Indian policies acknowledged the

tragic irony that those who were historically first in

time had been practically excluded from claiming and

using water during this era.

B. The Reserved Rights Doctrine Protects

Federal Promises Made to Tribal Nations in the Face of Widespread Appropriations of Land, Water, and Other

Resources Across the American West.

Westward expansion created economic and political incentives for the United States to acquire additional lands, which furthered the policies of removal

and relocation of Tribal Nations. Relying on the use of

treaties and agreements ratified by Congress, the

United States secured massive cessions of tribal lands

throughout the nineteenth century.

In recognition of the immense consideration provided by Tribal Nations in these agreements, as well

as their status as sovereigns, a series of interpretative

rules, known as the Indian Canons of Construction

(“Indian Canons”), developed over two centuries of this

Court’s precedent to ensure the benefits of those original bargains can be understood and protected. See

COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 2.02

(NELL JESSUP NEWTON ed. 2012).3 Under the Indian

Canons, all treaties, agreements, statutes, executive

orders, and other enactments affecting the rights of

Tribal Nations “must be interpreted in light of the parties’ intentions, with any ambiguities resolved in favor

of the Indians, and the[ir] words . . . construed in the

sense in which they would naturally be understood by

the Indians.” Herrera v. Wyoming, 139 S. Ct. 1686, 1699

(2019); see also Washington v. Washington State Commercial Passenger Fishing Vessel Assoc., 443 U.S. 658,

675-76 (1979); United States v. Washington, 969 F.2d

752, 755 (9th Cir. 1992), cert. denied, 507 U.S. 1051

(1993). Although Congress can unilaterally abrogate

Giving effect to Tribal Nations’ view of these agreements is

necessary to ensure the United States’ legitimacy, both domestically and internationally, which is rooted in the idea that

“[g]overnments . . . deriv[e] their just powers from the consent of

the governed.” THE DECLARATION OF INDEPENDENCE para 2 (U.S.

1776). Indeed, these agreements memorialized the terms of tribal

incorporation into the United States and documented the only basis upon which tribes consented to a relationship with the United

States. But for these agreements, bare colonialism would be the

sole legal justification for assimilating tribes into the domestic

constitutional structure. Philip P. Frickey, Marshalling Past and

Present: Colonialism, Constitutionalism, and Interpretation in

Federal Indian Law, 107 HARV. L. REV. 381, 393-417 (1993).

its agreements, there is a heavy presumption that

tribal property rights and sovereignty are preserved

unless congressional intent is clearly and unambiguously expressed to the contrary. Minnesota v. Mille

Lacs Band of Chippewa Indians, 526 U.S. 172, 202

(1999).

These principles have been particularly important

to the Court’s commitment to recognizing and protecting rights reserved by Tribal Nations. See, e.g., United

States v. Winans, 198 U.S. 371 (1905); see also Wash.

State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct.

1000, 1011-13 (2019). In Winans, the Court interpreted

the 1855 Treaty with the Yakama Nation, which, in exchange for ceding large portions of its aboriginal territory, had reserved (among other things) the “right of

taking fish at all usual and accustomed places, in common with the citizens of the Territory. . . .” Winans, 198

U.S. at 378. Despite this promise, members of the

Yakama Nation were blocked from accessing their

usual and accustomed fishing places by private property owners who acquired the recently ceded land. Id.

at 377, 379.

To justify this exclusion, the non-Indian landowners argued the treaty provided “no rights but what any

inhabitant of the Territory or State would have. Indeed, [the Yakama] acquired no rights but such as they

would have without the treaty.” Id. at 380. The Court

rejected that construction as “an impotent outcome to

negotiations and a convention, which seemed to promise more and give the word of the Nation for more.” Id.

(emphasis added). Instead, the Court applied the Indian Canons to the text of the treaty and looked to the

circumstances surrounding its negotiation to discern

the intent of both the United States and the Yakama

Nation. Id. at 380-82. That analysis distilled to the rule

that “the treaty was not a grant of rights to the Indians, but a grant of rights from them—a reservation of

those not granted.” Id. at 381. Since both the Yakama

Nation and the United States intended the treaty to

protect those rights, the treaty “imposed a servitude

upon every piece of land [adjacent to the Yakama’s

usual and accustomed fishing places] as though described therein.” Id.

C. The Winters Doctrine Gives Effect to the

Central Federal Promise of a Tribal

Homeland.

Just three years after Winans, this Court extended

the reserved rights doctrine to water use on Indian reservations. Winters v. United States, 207 U.S. 564 (1908).

There, the Assiniboine and Gros Ventre Tribes agreed

to cede a “vast territory” of land to the United States

that included “the northern half of what would later

become . . . the state of Montana.” Judith Royster, Water, Legal Rights, and Actual Consequences: The Story

of Winters v. United States, in INDIAN LAW STORIES 81,

82 (Goldberg et al. eds., 2011); see also JOHN SHURTS,

INDIAN RESERVED WATER RIGHTS: THE WINTERS DOCTRINE IN ITS SOCIAL AND LEGAL CONTEXT, 1880S-1930S

17 (2000). In consideration for that cession, the agreement, ratified by Congress in 1888, promised the Fort

Belknap Reservation would remain the “permanent

home[ ]” of the Tribes. Act of May 1, 1888, ch. 213, 25

Stat. 113, 113-14. The Tribes and the United States intended that farming and stock raising would be the

economic foundation of that homeland. SHURTS, supra,

at 19. However, the Reservation’s “lands were arid,

and, without irrigation, were practically valueless” for

agriculture. Winters, 207 U.S. at 576. To protect the

Reservation’s agricultural purposes, the United States

took the affirmative step of developing infrastructure

for an irrigation project to divert water from the Milk

River, which forms the Reservation’s northern border,

to irrigate 30,000 acres of reservation land. Id. at 566.

At the same time, the Tribes’ ceded lands were

opened to settlement under the federal homestead

laws. See, section I.A, supra. Non-Indian settlers soon

began diverting and using water from the Milk River

upstream of the reservation under Montana’s prior appropriation laws. Winters, 207 U.S. at 568-69. In 1905,

drought reduced the Milk River’s flow, which became

inadequate to meet the needs of both the Tribes and

non-Indian irrigators. Royster, supra, at 81. Consistent

with the “historical attitude of the department in dealing with violations of the rights of Indians of whatsoever sort . . . to use for the protection of such rights all

means properly at the Government’s disposal,” the

United States filed suit on behalf of the Tribes. SHURTS,

supra, at 94, n.17.

In Winters, the non-Indian irrigators made two arguments seeking to defeat the Tribes’ right to divert

and use water from the Milk River. The first, just as

the States and their Amicus assert here, State Pet’rs’

Br. 23-24; Colo. Br. 16-17; Amicus Western Water Users

Br. 22, was the bare policy-based appeal that “if the

claim of the United States and the Indians be maintained, the lands of the defendants and the other settlers will be rendered valueless [and] said communities

will be broken up.” Winters, 207 U.S. at 570. The second, which hinged on Montana’s prior appropriation

law, was that the Tribes had failed to establish senior

water rights because the right to divert and use water

from the Milk River was not expressly reserved in the

language of the 1888 agreement. Id. at 576 (“[I]t is further contended, the Indians knew [the reservation

lands were arid], and yet made no reservation of the

waters.”).

This Court firmly rejected both of these arguments

and determined that the case hinged not on bare policy-based appeals or state prior appropriation law but

“on the agreement of May, 1888, resulting in the creation of Fort Belknap Reservation.” Id. at 575. Applying

the Indian Canons, it was clear that the United States

and the Tribes intended to reserve the right to use water in the 1888 agreement. Id. at 576-77 (“By a rule of

interpretation of agreements and treaties with the Indians, ambiguities occurring will be resolved from the

standpoint of the Indians. . . . On account of their relations to the government, it cannot be supposed that

the Indians were alert to exclude by formal words

every inference which might militate against or defeat

the declared purpose of themselves and the government. . . .”); see also State Pet’rs’ Br. 26; United States’

Br. 36-37. Notwithstanding the “conflict of implications” arising from the agreement’s silence on water

rights, the Court paid particular attention to Winans’

mandate to discern the Tribes’ understanding of the

agreement and the rule that anything not expressly

ceded to the United States was reserved by the Tribes:

The Indians had command of the lands and

the waters—command of all their beneficial

use, whether kept for hunting, ‘and grazing

roving herds of stock’ or turned to agriculture

and the arts of civilization. Did they give up

all this? Did they reduce the area of their occupation and give up the waters which made

it valuable or adequate? . . . If it were possible

to believe affirmative answers, we might also

believe that the Indians were awed by the

power of the government or deceived by its negotiators. Neither view is possible.

Winters, 207 U.S. at 576. From this vantage, the Court

thought it clear that the logic resulting in “the retention of the waters is of greater force than . . . their cession.” Id.

Not only was the Court’s construction of the 1888

agreement rooted in an analysis of its text and the

Tribes’ history but also the circumstances surrounding

the creation of the Reservation. Id. (“The reservation

was a part of a very much larger tract which the Indians had the right to occupy and use, and which was

adequate for [their traditional] habits . . . It was the

policy of the government . . . to change those habits

and to become a pastoral and civilized people.”). Analysis of those circumstances led the Court to the central

purpose of the 1888 agreement—developing tribal agriculture on the Fort Belknap Reservation to fulfill

Congress’ tribal policy goals. Id. at 576-77. Given the

climate of the Reservation, the Court found that purpose would be defeated if the 1888 agreement did not

include a reservation of water. Id. (“And the rule

should certainly be applied to determine between two

inferences, one of which would support the purpose of

the agreement and the other impair or defeat it.”). Because Congress did not intend, or clearly express, such

a contrary result, the only inference to draw was the

one “which would support the purpose of the agreement.” Id. at 577. Thus was born the Winters Doctrine:

when the federal government agrees to create an Indian Reservation, it also promises the water necessary

to fulfill the purposes of that reservation. Arizona v.

California, 373 U.S. 546, 599-600 (1963).

The Court’s construction of the 1888 agreement

likewise disposed of the non-Indian irrigators’ policy

argument that ruling for the United States would

cause their lands to “be rendered valueless [and] said

communities . . . be broken up.” Id. at 570. Notwithstanding this argument’s hyperbolic nature, the Court

concluded that Congress had already weighed those

considerations and nonetheless opted to reserve a

water right for the Tribes when it created the Fort

Belknap Reservation. Id. at 575. Having discerned congressional intent to reserve a homeland pursuant to

the 1888 agreement, which necessarily required water,

the Court refused to second-guess or reweigh that intent. Id. at 577.

Thus, Petitioners here are incorrect that Winters

rights derive from the common law rather than federal

positive law. See United States Br. 36-37; State Pet’rs’

Br. 26-36. The Winters Court did not create the water

rights reserved for the benefit of Tribal Nations, nor

has any court since Winters purported to create water

rights pursuant to the common law. Instead, the Winters Court concluded “[t]he case . . . turns on the agreement of May, 1888, resulting in the creation of Fort

Belknap Reservation.” Id. at 575 (emphasis added).

This Court reaffirmed that holding in Arizona, 373 U.S.

at 599-600. There, in discerning the purposes for the

creation of several executive order reservations, the

Court concluded that “Congress and the [E]xecutive

have ever since recognized these as Indian Reservations.” Id. at 598 (emphasis added). Simply put, the federal promise to reserve and protect tribal water rights

comes from the constitutional powers of Congress and

the Executive, not from the Judiciary. In both cases, the

Court has looked to the operative document that

served to create the reservation and discerned a federal and tribal purpose to reserve a homeland. Because

water was necessary to fulfill that purpose, the Court

has twice found it inconceivable that the parties failed

to ensure a water supply sufficient to make that homeland habitable for future generations. Following this

Court’s lead, state and federal courts across the American West have engaged in the same analysis to discern

the scope of the federal government’s intent when reserving an Indian homeland.4

Conrad Inv. Co. v. United States, 161 F. 829, 831-32 (9th

Cir. 1908) (construing 1888 Agreement with the Blackfeet, 25

Stat. 124); United States v. Ahtanum Irr. Dist., 236 F.2d 321, 326

II.

The Winters Doctrine is Foundational to

the United States’ Exercise of its Trust Duties to Protect and Secure Tribal Reserved

Water Rights.

A. Winters is the foundation for decisions

in extensive water adjudications.

Over a half-century after Winters, Arizona v. California reaffirmed the Winters Doctrine’s central role in

western water law. 373 U.S. 600. There, the Court expressly “follow[ed]” Winters when interpreting congressional actions and executive orders establishing

reservations in the Colorado River Basin, concluding

that “[w]e have no doubt about the power of the United

States . . . to reserve water rights for its reservations

and its property.” Id. at 598, 600. As in Winters, the

question reduced to one of intent, which the Court

inferred from the purposes for the creation of the

(9th Cir. 1956) (construing Treaty with the Yakima, 12 Stat. 951

(1855)); New Mexico v. Aamodt, 537 F.2d 1102, 1113 (10th Cir.

1976); United States v. Abousleman, 976 F.3d 1146, 1158-60

(10th Cir. 2020); Colville Confederated Tribes v. Walton, 647 F.2d

42 (9th Cir. 1981) (construing Executive Order of July 2, 1872);

United States v. Adair, 723 F.2d 1394, 1409 (9th Cir. 1983) (construing Treaty with the Klamath, 16 Stat. 707 (1864)); Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist.,

849 F.3d 1262, 1272 (9th Cir. 2017). See also In re Gen. Adjudication of All Rts. to Use Water in Big Horn River Sys., 48 P.3d 1040,

1046-47 (Wyo. 2002) (construing Treaty of Fort Bridger, 15 Stat.

673 (1868)); In re Yakima River Drainage Basin, 850 P.2d 1306,

1317 (Wash. 1993); (construing Treaty with the Yakima, 12 Stat.

951 (1855)); In re CSRBA Case No. 49576 Subcase No. 91-7755,

448 P.3d 322, 344 (Idaho 2019) (construing Executive Order of

Nov. 8, 1873).

Reservations.5 Id. at 598-99. The Court found that the

purposes for these particular Reservations was to provide the Tribal Nations with an agriculturally-based

homeland, but also recognized that “most of the lands

were of the desert kind—hot scorching sands.” Id. at

599. Thus, it would be “impossible to believe” Congress

and the Executive failed to understand that “water

from the river would be essential for the life of the Indian people and to the animals they hunted and the

crops they raised.” Id.

Arizona v. California also provides guidance for

the integration of reserved rights into state water law

schemes premised on prior appropriation. Recognizing

that reserved rights vest “as of the time the Indian

Reservations were created,” the Court agreed with the

Special Master that they constitute “ ‘present perfected

rights’ and as such are entitled to priority,” based on

the date of the reservation. Id. at 600; see also Winters,

207 U.S. at 577 (reserving Tribes’ water rights as of the

date of the agreement establishing the Reservation).

Such straight-forward integration of federal reserved

rights with existing rights recognized under state law

ensures consistency with this Court’s precedent in

Arizona.

The Arizona Court also extended the Winters Doctrine to

non-Indian reservations, Arizona, 373 U.S. at 601, and later concluded that Congress intended to reserve water for those reservations where such water would be necessary to fulfill the purposes

of the reservation. Cappaert v. United States, 426 U.S. 128, 138

(1976).

Federal courts throughout the West have relied

upon the Winters Doctrine to identify and protect the

scope of Indian water rights tied to the reservation of

permanent and sustainable tribal homelands. See section I.C, supra, at n.4. For example, the Ninth Circuit

relied on the Doctrine when it reviewed the Executive

Order creating the Colville Reservation to confirm that

the Order established a homeland for the Colville

Tribe and reserved the water necessary to fulfill the

purposes of that homeland. Walton, 647 F.2d at 46-48

(noting that “[r]esolution of the problem is found in

quantifying reserved water rights, not in limiting their

use.”) Likewise, “the Winters [D]octrine d[id] not distinguish between surface water and groundwater”

when, in an Executive Order, “the United States intended to establish a home for the Agua Caliente Band

of Cahuilla Indians.” Agua Caliente Band of Cahuilla

Indians, 849 F.3d at 1272. The Winters Doctrine and its

approach to determining the purposes of tribal homelands recognizes that “permanency requires a reliable

supply of water for meeting basic socioeconomic needs,

maintaining cultural integrity, and fostering diversified tribal economies; all of which are the heart of what

a ‘homeland’ is,” and are vital for tribal sovereignty.

McCool, supra, at 159.

State courts also broadly define and apply the

Winters Doctrine when determining tribal reserved

rights in general stream adjudications. The McCarran

Amendment, 43 U.S.C. § 666, established Congress’

preference for a comprehensive forum in which to adjudicate state, federal and tribal rights to water,

including reserved rights. Arizona v. San Carlos Apache

Tribe of Arizona, 463 U.S. 545, 571 (1983). With respect

to those state forums, however, this Court also recognized that the federal “powers and duties regarding

Indian water rights are constrained by its fiduciary

duty to the Indian tribes who are beneficiaries of the

trust,” including the “responsibility fully to defend Indian water rights in [ ] court. . . .” Colo. River Water

Cons. Dist., 424 U.S. 800 at 812. Thus, this Court’s

recognition of state court authority to comprehensively

adjudicate all rights, including tribal reserved rights,

was balanced with its understanding of the United

States’ affirmative duty to protect those rights in any

forum where they might be addressed or adjudicated.6

State courts across the West regularly determine tribal

reserved rights through such proceedings. In these

cases, the United States, as the trustee over tribal water rights, commences litigation on behalf of tribes or

joins the proceeding on behalf of tribes. State courts

across the West look to and incorporate applicable federal law by relying on the Winters Doctrine. See, e.g.,

In re CSRBA Case No. 49576 Subcase No. 91-7755, 448

P.3d 322, 362 (Id. 2019); In re Gen. Adjudication of

All Rights to Use Water in the Gila River Sys. & Source,

35 P.3d 68, 71-72 (Ariz. 2001) (describing the interaction of Winters and prior appropriation); In re Gen.

In Colorado River, the United States assured the Court

that “[t]he government’s ‘ownership’ status as trustee is . . . an

incident of the special obligation to protect the Indians, which the

United States assumed when it occupied their ancestral lands.”

Brief for the United States at 56, Colo. River Water Cons. Dist. v.

United States, 424 U.S. at 800.

Adjudication of All Rts. to Use Water in Big Horn River

Sys., 48 P.3d 1040, 1046-47 (Wyo. 2002). In this way, the

Winters Doctrine has become inextricably intertwined

with state law water rights and Western water management.

B. Winters is the foundation for extensive

water settlements.

In addition to its role in adjudications, the Winters

Doctrine is critical to the negotiated settlement of

tribal water rights. The decades following Arizona v.

California and the implementation of federal strategies to resolve tribal water rights based on Winters

have yielded a number of negotiated settlements that

confirm tribal water rights, thereby providing certainty for tribes and all water users. See Appx. B (listing settlements). The enactment of the Hualapai Tribe

Water Rights Settlement Act of 2022, Pub. L. No. 117349 (Jan. 5, 2023), marked the thirty-ninth such settlement across the West. CHARLES V. STERN, CONG. RSCH.

SERV., R44148, INDIAN WATER RIGHTS SETTLEMENTS 1

(2022).

While the number of such agreements attests to

the ubiquitous role of Winters in helping resolve complex and often-competing claims to water, the terms

of the settlements themselves also demonstrate the

benefits of—and reliance on—the Winters Doctrine.

The Navajo Nation Water Settlement and Northwestern New Mexico Rural Water Projects Acts of 2009

(“NNWS”), for example, settled Navajo Nation’s water

rights “held by the United States in trust” for its

2,795,418 acres of trust lands in New Mexico. Omnibus

Public Land Act of 2009, Pub. L. No. 111-11, § 10603,

123 Stat. 991, 1382. Acknowledging the Nation’s “critical” water needs that remain unaddressed in the

neighboring State of Arizona, id. § 10603(i)(3), 123

Stat. at 1387, Congress authorized three projects to

sustain Navajo communities within New Mexico, including the Navajo Indian Irrigation Project (“NIIP”).

Id. § 10701(b), 123 Stat. at 1396-98. The NIIP delivers

water from the San Juan River, a Colorado tributary,

explicitly quantified in accordance with the Winters

Doctrine and Indian Canons. MEMORANDUM, OFFICE OF

THE SOLICITOR TO THE SECRETARY OF THE INTERIOR, NAVAJO INDIAN IRRIGATION PROJECT WATER ENTITLEMENT OF

THE NAVAJO TRIBE 3 (July 30, 1980), https://tinyurl.com/

cmatptsk (citing Winters, 207 U.S. at 547-77).

The NNWS also provides certainty and benefits to

the Navajo Nation’s non-Indian neighbors. As set forth

in that settlement, the Navajo Nation received entitlements and support for water infrastructure in the San

Juan River and Nighthorse Reservoir in Colorado in

exchange for relinquishing its reserved Winters rights

for priority Colorado River Compact water in New

Mexico. NNWS § 10701, 123 Stat. at 1396-98. Additional water is thereby freed up for other uses. See

State of New Mexico, ex rel. State Engineer v. United

States of America, 425 P.3d 723, 727-28 (N.M. Ct. App.

2018). The NNWS also authorized the Navajo-Gallup

Water Supply Project, which supplies a renewable

source of surface water to both Navajo and non-Indian

communities. NNWS § 10402(d), 123 Stat. at 1372-74;

id. § 10701(b), 123 Stat. at 1396-97. Within the NNWS

settlement, the Nation further agreed to conditionsbased reductions or alternative supplies from lowerpriority sources in times of shortage to ensure New

Mexico’s compliance with the law of the river and the

Colorado River Compact. Id. § 10402(d), 123 Stat. at

1372-74.

The remaining thirty-eight settlements address

similar needs for tribal and non-Indian communities

in nearly every state in the West. See STERN, supra, at

Summary. The geographic and substantive scope of

tribal water settlements have come to define the terms

on which Tribal Nations and non-tribal citizens across

the West now use and rely on water; those settlements

are built upon the Winters Doctrine and this Court’s

reserved rights jurisprudence.

C. Winters articulates the mandate by

which the United States measures the

fulfillment of its trust duties to Tribal

Nations when protecting, securing, or

negotiating tribal water rights.

Since its inception, the Winters Doctrine has continued to ensure the continuing vitality of the historical promises of the United States to reserve livable

homelands for Tribal Nations by securing the water

rights necessary to fulfill the purposes of those reservations. Guided by that mandate, the United States’

trust duties to Tribal Nations motivates federal

actions to make good on those promises. See STERN, supra, at 1-2.

The federal government’s modern approach is

premised upon the recognition that such rights are

“vested property rights for which the United States

has a trust responsibility, with the United States holding legal title to such water in trust for the benefit of

the Indians.” Criteria and Procedures for Participation

of Federal Government in Negotiating for Settlement

of Indian Water Rights Claims, 55 Fed. Reg. 9223 (Mar.

12, 1990) (“Criteria and Procedures”). In 1968, President Richard Nixon cited the “solemn obligations” assumed by the United States “through written treaties

and through formal and informal agreements,” as a basis for developing new approaches to fulfilling those obligations. Richard Nixon, A Better Day for the

American Indian, Omaha, Nebraska (Sept. 27, 1968),

https://tinyurl.com/reasj7tr.

Successive Presidential administrations continued that commitment. In 1978, President Jimmy

Carter directed federal agencies “to work promptly and

expeditiously to inventory and quantify Federal reserved and Indian water rights.” Jimmy Carter, U.S.

President, Federal Water Policy Message to the Congress (June 6, 1978), https://tinyurl.com/3ujshvtf. In

1990, President George H.W. Bush implemented a policy that permanently institutionalized settling unresolved tribal water rights as a federal priority of the

Department of the Interior. See generally, Criteria and

Procedures, supra, 55 Fed. Reg. 9223. Pursuant to the

Criteria and Procedures, the Department of the

Interior is charged with negotiating settlements for

water related and other “claims” Tribal Nations otherwise may bring “against the United States.” Id. at

9223-24. As consideration for settling those claims, the

United States as trustee, is to exchange “equivalent

benefits for [the] rights” asserted by Tribal Nations. Id.

This framework engages all branches of government

and has guided the settlement process since 1990.

Congressional ratification of settlement agreements also affirms the federal trust responsibility for

reserved water rights premised on Winters. See, e.g.,

Act of July 28, 1978, Pub. L. No. 95-328, 92 Stat. 409.

In the first negotiated settlement, the Ak-Chin Indian

Water Rights Settlement Act in 1978, Congress expressly acknowledged that resolution of the Ak-Chin’s

water rights was necessary to correct the “failure of the

United States to meet its trust responsibility to the Indian people. . . .” Id. § 1(a), 92 Stat. at 409. The Ak-Chin

Settlement, like others that followed, concedes the

United States’ obligations and past failures “to protect

and deliver the water resources,” and waives tribal

“claims” for otherwise judicially enforceable reserved

water rights. Id. § 1(b)(5), 92 Stat. at 409. The United

States mutually acknowledged in the Ak-Chin Settlement that “it is likely that the United States would be

held liable for its failure to provide water and for allowing ground water beneath the reservation to be

mined.” Id. § 1(b)(3), 92 Stat. at 409.

Subsequent settlements characteristically include

waivers and releases of claims arising from the United

States’ “fail[ure] to act consistently with its trust

responsibility to protect and deliver” reserved water

resources to Tribal Nations. See Colorado Ute Water

Rights Settlement Act of 1988, Pub. L. No. 100-585,

§ 8(a), 102 Stat. 2978 (authorizing the Tribe to “waive

and release claims concerning or related to water

rights. . . .”); San Luis Rey Indian Water Rights Settlement Act of 1988, Pub. L. No. 100-675, § 107(b)(1), 102

Stat. 4000, 4003 (declaring “the United States has a

trust relationship” and that settlement would ensure

that responsibility “would be fulfilled”); Truckee-Carson

Pyramid Lake Water Settlement Act of 1990, Pub. L.

No. 101-618, § 202(e), 104 Stat. 3289, 3294 (finding the

purpose of settlement is to “fulfill Federal trust obligations toward Indian tribes”); Jicarilla Apache Tribe

Water Rights Settlement Act of 1992, Pub. L. No. 102441, § 2(1), 106 Stat. 2237 (acknowledging settlement

of Tribe’s “claims” against the United States for “water

rights” based on the “infringement of those rights.”);