The Online Library of Liberty

A project of Liberty Fund, Inc.

• Editorial Staff
• Associate Editors
• Editorial
• Bibliographical Essay: Richard Stroup and John Baden, Property Rights and Natural Resource Management
• I: Natural Resources and Property Rights
• Indian Water Rights
• Resources and Bureaucrats As Predators
• Government Energy Conservation
• Timber, Property Rights, and Government
• The Reclamation Service's Tahoe Fiasco
• Mineral Rights and Government
• Market Protection of Property Rights
• Government Water Planning
• Indians, Property, and Conservation
• Political Or Voluntary Ecology?
• II: War, Peace, and Empire
• American Foreign Policy
• Oil and Government Policy
• War, State, and Nation
• Early U.s. Indian Policy
• U.s. Foreign Policy and Latin America
• Reform, Progressives, and Empire
• Harry Elmer Barnes and Revisionism
• Imperialism and War Technology
• Pietistic Vs. Pragmatic Foreign Policy
• Atomic Warfare and Human Suffering
• Vietnam: Cost-benefit Warfare
• III: Political and Social Philosophy
• Plato and Constitutions
• The Uses of a Political Myth
• Florentine Guilds and Republicanism
• Machiavelli, Corruption, and America
• Hume and Contract Theory
• Corporations: a Contractual Paradigm
• Smith, America, and Utilitarianism
• People, Freedom, and State In Hegel
• Freedom and Virtue
• Nineteenth Century Spanish Liberalism
• Victorian England and Laissez-faire
• O'connell, Anti-slavery, and Freedom
• Carnegie and Spencer
• Republicanism Vs. Liberal Individualism
• Rousseau's Social Contract and Freedom
• Artistic and Cosmic Harmony
• Pound and Politics
• Ideology and Classes

Indian Water Rights

Norris Handley, Jr.

• University of California, Los Angeles; and Managing Editor of The Pacific Historical Review

“The Dark and Bloody Ground of Indian Water Rights: Confusion Elevated to Principal.” The Western Historical Quarterly 9(October 1978):455–482.l

The future of American Indian life crucially depends on water rights. Of the nation's 370,000 reservation Indians, 75% live lives of deprivation in the arid West. These Native Americans suffer the highest unemployment rate, the lowest percapita income, the least formal education, the highest suicide rate, and the highest death rate from alcoholism. Much of this deplorable status stems directly from a fundamentally flawed, century-old assortment of U.S. government policies to “civilize” tribal Americans. One disastrous policy was the government's crude handling of Indian water rights. The Indians' new “civilized” lives as ranchers and farmers failed because the dry land caused by inept government policy failed to bear the fruits of husbandry.

Historically, this failure steams from tampering with the Indians' common law water rights by water-hungry immigrants from east of the Mississippi. Knowing which products of the West would yield the greatest market returns, white immigrants quickly jettisoned English common law and devised a water rights law called “prior appropriation.” That is, the first person to use a water source for productive purposes acquired primary and often exclusive rights to that source.

This doctrine undercut the reservation Indians. At the Gros Ventre reservation (Fort Belknap, Montana) Indian life depended on the free flow of the Milk River. However, ‘prior’ claimant Henry Winters diverted so much of the river's flow up-stream from Fort Belknap that during the drought of 1904–05, the Milk River ceased to flow past the reservation. The administration moved to avert mass starvation and precipitated the landmark Supreme Court case of 1908, Winters v. United States. The Court held that Indians possessed prior or reserved rights to water that superceded the rights of Winters or, indeed, of any so-called prior claimant. The court also ruled that ambiguities in laws governing reservation life should always be decided in favor of the Indians.

Although hailed as the Magna Carta for reservation Indians, the court ruling contained a key ambiguity: Did the Indians themselves reserve rights to the water or did the federal government reserve it for them? Did Winters v. United States mean that non-Indians would be compelled to purchase all property taken at the expense of this aboriginal right? Or, by a second interpretation, were property holders responsible solely to the United States government?

The obvious benefits to non-Indians of the second interpretation led to a subtle undercutting of Indian rights to water. Federal policies have failed to join action with equity, and the present status of Indian well-being, consequently, is little better than it was before the Winters case. The Indians have unavoidably relied on slow-moving court-made law. Governmental policies that continually frustrated the Indians' full exercise of water rights, so that no means other than government court action have been available to redress Indian grievances. However, courts are notoriously slow to act, notoriously ineffective at implementing policy, and notoriously ambiguous with respect to Indian rights. Thus, the exploitation of Indian rights by non-Indians continues. Only a major emphasis on equity can reverse this century-old practice of legal neglect and flagrant violation of water rights. Nothing less than the future of reservation Indian life turns on this practice being reversed.