PROTECTING FEDERAL RESERVED WATER RIGHTS ON MILITARY INSTALLATIONS

JUDICIAL RECOGNITION OF THE FEDERAL RESERVED WATER RIGHTS DOCTRINE In 1908, the Supreme Court first recognized the federal reserved water rights doctrine.8 In Winters v. United States, Congress had set aside a large land area in 1874 for several Indian tribes.9 However, in 1888, the tribes agreed to transfer the land back to the United States, except for a small tract which became known as the Fort Belknap Indian Reservation.10 In 1889, the United States constructed houses and other buildings on the reservation and diverted 1,000 inches of water from the Milk River for the Indians' domestic and irrigation needs.11 Prior to the United States or the Indians diverting any water, except for 250 inches pumped by a small water plant, non-Indians settled upstream along the Milk River.12 They established homesteads following all applicable federal and state laws.13 In July 1898, the Fort Belknap Indians diverted 10,000 inches of water to irrigate 30,000 acres of cropland.14 In 1900, in compliance with federal and state laws, the non-Indian settlers built dams and reservoirs and diverted 5,000 inches of water from the Milk River.15 This left the Indians with insufficient water to support their agricultural needs.16 Consequently, the United States sought to enjoin the settlers from diverting water from the Milk River.17 The Court found there was an implied reservation of the water from the Milk River for irrigation purposes in the 1888 agreement, which established the Fort Belknap Indian Reservation.18 The Court looked to the purpose of the agreement and reasoned that Congress could not have intended to take away the large tract of arid land the Indians had used to maintain a nomadic lifestyle only to leave them with a small tract of arid land that required water if a civilized community were to be established.19 In 1955, the Supreme Court hinted the reserved water rights doctrine may also apply to non-Indian lands.20 In Federal Power Commission v. Oregon (commonly referred to as the Pelton Dam case),21 the Federal Power Commission granted a license to build and operate a power facility and dam on the Deschutes River flowing through federal reserved land in Oregon.22 The State of Oregon, and others, challenged the federal government's authority to grant the license.23 The Court held that the Federal Power Commission did in fact possess such authority.24 It reasoned that under the Federal Power Act, the Commission has the authority to grant such licenses on federal r