Washington Law Review
The Winters Doctrine of federally reserved water rights applies to groundwater and water quality. Because most Indian tribes would have no water rights under state law, the reserved water rights doctrine, known as the Winters Doctrine, emerged to establish a federal right to water on Indian reservations sufficient to fulfill the purposes of the reservation. The reserved water rights doctrine originated in Winters v. United States, which was preceded by two cases upholding the federal government's right to reserve certain water rights. Winters rested on one of the Canons of Construction for Indian treaties that require agreements involving Indians be liberally construed in their favor. Whether Winters applies to water quality as well as quantity has never been directly litigated. However, courts have implied that this right extends to water quality by upholding water uses that do not actually require consumption of water, such as maintenance of minimum instream flows. Winters and the Canons of Construction also require an extension to water quality. This Comment uses the Lummi Nation to illustrate a real example of water rights problems faced by Indian tribes and concludes that because the Winters Doctrine extends to groundwater and water quality, the Lummi Nation is entitled to enjoin non-Indian groundwater users contaminating their groundwater source.
Amy C. Allison,
Notes and Comments,
Extending Winters to Water Quality: Allowing Groundwater for Hatcheries,
77 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol77/iss4/5