Damming the Bighorn: Indian reserved water rights on the Crow Reservation, 1900--2000.

Abstract

According to one experienced lawyer, the Winters doctrine "hangs by a thread." Quantification of the Indian reserved water right serves the interests of local and state entities; does it also serve the interests of Indians? The dissertation examines Crow negotiations to quantify their reserved right with the State of Montana's Reserved Water Rights Compact Commission and concludes that circumstances will always dictate whether or not quantification is advisable. The Crow had compelling reasons to quantify and many obstacles including in fee owners within the tribe, non-Indian ranchers, and the United States.

This dissertation explores a century of interpretation of the Winters Doctrine, reserved water rights, on the Crow Reservation. Beginning with the 1880s construction of the Crow Indian Irrigation Project, the federal government attempted to fulfill the directive of the 1887 General Allotment Act---to turn a nomadic people to agrarian pursuits. Under the same act, Congress charged the Department of Interior with the duty and the power to divide the waters of the reservations. In 1908, the Supreme Court handed down their seminal Winters decision, reserving to Indian tribes all necessary water to ensure the success of the agrarian enterprise. Using the double-pronged authorization, the Department of Interior, as trustee to the ward Crow, oversaw construction of a number of water projects through the bureaucratic arm of the Indian Irrigation Service.

The Service, along with the Bureau of Reclamation, oversaw development that ostensibly helped the Crow Indians achieve a settled existence. Instead the projects made Crow land more attractive to non-Indian interests and eventually came to serve larger development interests---non-Indian corporate farmers and eventually extractive industry giants. Rather than serve the interests of Indians, both the Indian Irrigation Service and the Bureau of Reclamation merged Indian reserved water rights under their purview, claiming them as "Secretarial waters." As such the Indian reserved right eventually came to serve the interests of the developers---industrial users dependent on the resource. For the purposes of this study, the story unfolds in four distinct federal policy periods: the allotment era, 1900--1932; reorganization, 1932--1952; termination, 1950s; and self-determination, 1970s to the present. Regardless of executive policy, the powerful bureaucracies that controlled water development determined Indian water policy.

The Indian Irrigation Service and the Bureau of Reclamation have ensured their own federal water development policies using the Winters doctrine, while the Crow have fought, often in court, to prevent their fiduciary from raiding their tribal trust fund, their natural resources, and most notably their tribal water rights. Throughout the 20th century, no tribe has fought more consistently than the Crow to separate their tribally owned water resources---their Winters rights---from the development interests of their federal trustee. Several court cases reveal the extent of the ongoing battle: U.S. v. Thomas Powers (1939); U.S. v. 5,677.94 acres of land (1956); and Montana v. U.S. (1981).