The Yale Law Journal


Water Rights of Public Domain Allotments

17 Feb 2023

abstract. Indigenous peoples in the United States have stewarded its land and water for millennia, but now face barriers to accessing sufficient amounts of clean, safe water. Public domain allotments (PDAs) are one solution the United States offers to provide land to Indian people, but PDAs and the rights attaching to them are insufficiently studied or understood by governments and laypersons alike. This Essay shows how PDAs are entitled to a federally reserved water right, with particular attention to the history of Indian land tenure in California.

PDAs are land reserved out of the public domain for use by an Indian person or family, but unlike larger reservations, they are not connected to any Native Tribes or governments and are not subject to Tribal jurisdiction. Nevertheless, PDAs are Indian country.

The United States Supreme Court has found that when Congress created Indian reservations, it impliedly reserved water sufficient to fulfill the purpose of those reservations—a purpose that is individually determined by the language of the treaties or executive orders. This water right, commonly known as a Winters right, is not subject to the restrictions of state water systems such as a beneficial-use requirement.

This Essay examines several different statutes to show that, while Congress specifically declined to reserve water rights for allotments granted to non-Indians, Indian allotments—including PDAs—are entitled to a Winters right in the same manner as larger reservations.

This conclusion arises from the language of the statutes but is reinforced by applying the Indian Canons of Construction, which dictate that laws applying to Indian Tribes and people should be interpreted to their benefit or as they would be understood by the Indians. By tracing the history of Native land laws in California from the time of Spanish colonization to the mid-twentieth century, this Essay shows that Indian land reservations in California have always included a right to water. The Essay specifically explains the necessity and benefit to Native peoples of including a reserved water right, and why it is the case that Indians would understand land reservation statutes, orders, and other legal instruments to include water rights as well.

Finally, given the practical necessity of integrating federally protected water rights into state water-management systems, this Essay gives a brief overview of water management in the western United States and how Winters rights of PDAs can be asserted even in fully appropriated water systems.


Amid the calls for change and social justice that have echoed ever more loudly across the United States for the past several decades, one refrain stands out as a means to address multiple intersecting crises: #LandBack.1 The term refers to a movement in support of returning land in the United States and Canada to its Indigenous peoples. “Land back” can mean many different things: fee-to-trust conversions through the Department of the Interior, comanagement agreements with federal agencies, fee-simple transfers, and even easements or access permits.2 One principle, however, is common to all these mechanisms: land rights must come with water rights, or they are not full grants or restorations.3 Rights to water are critical for Native people, especially in the West where water is increasingly scarce.4 This Essay will discuss the water rights of public domain allotments (PDAs), which are a particular type of land grant separate from reservations.5

PDAs are tracts of land reserved from federally controlled territory in the United States held as trust or restricted fee parcels by Native American persons who do not live on reservations.6 A PDA often has many owners or beneficiaries of the trust, all of whom have a fractionated and undivided interest in an entire parcel.7 The benefit of a PDA, therefore, is largely in its availability as a place to live. In order to realize this benefit, it is critical for any potential owner or user that water rights attach to these allotments, especially as water becomes an increasingly precious resource in the West. Despite their detachment from any reservation or larger Tribal organization, PDAs are Indian country and are entitled to a federal reserved water right, also known as a Winters right.8 Water rights attach to PDAs as a matter of congressional intent, coupled with the trust responsibility of the United States to Native nations as dependent sovereigns.9

This Essay will examine the water rights of PDAs, with a focus on California history and allotments.10 Part I will explain what PDAs are and why their water rights are critical. Part II reviews Winters rights, a type of federal reserved water right that applies specifically to Indian reservations. Part III explains what is meant by “Indian country,” why that definition matters, and why PDAs fit into that definition. Part IV examines the various laws creating different kinds of allotments in the United States and how each law treats water rights. Specifically, the General Allotment Act creating Indian allotments has a distinct purpose and approach that indicates an intent to reserve water that is not apparent in other laws creating allotments. Part V explains the Indian canons of construction and how they apply to the General Allotment Act. Part VI briefly outlines the history of Indian land tenure in California and the various laws that have governed it over the centuries to explain how, in the context of California Indian history, the canons point to a federal reserved water right for PDAs. Finally, Part VII shows how PDAs’ rights would fit within a state’s prior appropriation system.

I. what is a public domain allotment?

PDAs are a critical but small portion of Indian land in the United States. This Part explains what a PDA is and why it is important to explore the water rights to which they are entitled.

A. Statutory Definitions: Where Allotments Live in U.S. Law

PDAs are land held in trust or in fee simple by Indian persons outside the bounds of a reservation.11 Allotments of this type are governed by the General Allotment Act, also known as the Dawes Act, which split collectively held Indian reservations into individual parcels for the purpose of providing homes for Indians and integrating them within settler farming communities and practices.12 At the time of the Act’s passage, many Indians did not wish to or could not settle on a reservation, so Congress created the option to claim an allotment from land in the public domain.13 The General Allotment Act of 1887 authorized the following:

Where any Indian entitled to allotment under existing laws shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated, he or she shall be entitled, upon application to the local land office for the district in which the lands are located, to have the same allotted to him or her and to his or her children in manner as provided by law for allotments to Indians residing upon reservations, and such allotments to Indians on the public domain as herein provided shall be made in such areas as the President may deem proper.14

Unlike reservation allotments, which retained their connection to a Tribe despite being the property or trust benefit of an individual or family, PDAs are not under the jurisdiction of any Tribe or Indian nation.15

B. Current State of Public Domain Allotments

PDAs comprise about 1.23 million acres in the United States, primarily in the West.16 California contains about 400 allotments comprising about 20,000 acres; New Mexico has the most territory devoted to PDAs, at over 600,000 acres.17 Compared to California’s roughly 100 million-acre landmass, PDAs are a very small land interest—but on the scale of Indian land in California, they are vital.18 Indian reservations and rancherias in California comprise only about 525,000 acres, meaning PDAs account for nearly four in every one hundred acres of Indian-held land.19

The stated purpose behind allotment was to help Indians assimilate into settler, agrarian culture and build capital wealth based in property with the eventual goal of reducing the United States’s responsibility for their welfare.20 However, because of probate laws governing Indian trust interests and property, PDA ownership is usually fractionated—that is, it is divided among so many heirs that no one person may effectively benefit from the land as a source of capital.21 Most PDAs are held in severalty, meaning that each heir has an undivided interest in the entire parcel rather than an individual claim to a portion of the total; the only real benefit of such an interest in land is as a place to live, since alienation or leasing is next to impossible to coordinate among dozens or hundreds of parties.22

It is critical that water rights attach to these allotments so that rights to the land may be exercised through settlement or lease. As climate change continues to reduce the available water supply in California and other western states, rights to water are an increasingly fraught issue and a serious human rights concern.23 Overall, Native people are already at a disadvantage when it comes to water rights, as they have less access to this critical resource than non-Native people.24 One in ten Native Americans lacks access to safe, clean drinking water.25 Since most of California’s water is fully appropriated for all or part of the year, allotment owners or tenants likely cannot establish new appropriative rights to water.26 However, PDAs are entitled to federally reserved water rights to fulfill the purpose of supporting Indians and their families.27

II. what is a reserved water right? an overview of the winters doctrine

Federal reserved Indian rights to water were first recognized in Winters v. United States in 1908, when the U.S. Supreme Court held that when Congress created Indian reservations, it impliedly reserved sufficient water to “support the purpose” for which the reservation was established.28 Noting that “the lands [which are] arid and, without irrigation, were practically valueless,” the Court held that the federal government had the power to “reserve the waters and exempt them from appropriation under the state laws” to ensure an adequate water supply.29

Various courts have recognized that the Winters doctrine provides three unique privileges: “[F]irst, reserved water rights may be asserted at any time; second, those rights are need-based and do not require continued beneficial use; and third, they take priority over all junior water users in water shortages.”30 Because Indian reserved water rights date back to the creation of the reservations, and thus pre-date other settlement of the areas, Tribal water rights are usually senior to other water users’ claims.31

Because Winters did not dictate a formula to quantify the water reserved, courts apply different standards to quantify Indian reserved water rights by discerning the “purpose” of reservations.32 The reserved federal right was quantified in Arizona v. California according to the “practicably irrigable acreage” (PIA) on reservations dedicated to agriculture.33 However, in In re General Adjudication of All Rights to Use Water in the Gila River System & Source, the Supreme Court of Arizona held that the U.S. Supreme Court did not intend the PIA standard to be the sole method for quantification.34 Other courts have used different methods to quantify rights to consumptive and nonconsumptive water use for farming, fishing, and aquaculture.35 On the Klamath reservation, for example, the Ninth Circuit found that Congress intended to support the Tribe’s subsistence through fishing and hunting, as opposed to agriculture, and allocated enough water to support this purpose.36

The judicial trend “appears to recognize [that] reservation allocations should not be limited to only an amount of water sufficient to support the pastoral lifestyle contemplated in the nineteenth century, but rather calculated to provide the tribes with water in quantities sufficient to promote survival and the success of the reservations.”37 Modern jurisprudence tends to recognize that the goal of the federal government in creating Indian reservations was not to produce more farmers or shepherds but instead “to make the reservation livable” and “to further and advance the civilization.”38

Water quality has been recognized by some courts as an element of a reserved water right when a decline in quality would degrade the waters used for reservation purposes.39 For example, a federal district court in Arizona held that “quantity alone is insufficient when granting tribes water for consumptive uses,” so reserved water rights call for “a certain quality of water.”40 Because of farming and groundwater pumping in upstream valleys, water used by the San Carlos Apache Indian Reservation was becoming saline, resulting in the loss of some crops.41 Although the district court never specifically discussed Winters rights, it applied similar reasoning to require users upstream from the reservation to cease using water in order to increase flow and restore the water to a sufficient quality to sustain the salt-sensitive crops grown by the Tribes.42

III. public domain allotments are indian country

Winters rights are a particular type of federally reserved water right that is specific to Indian country. PDAs’ entitlement to water rights is directly tied to their existence as Indian country, despite their not being controlled by or associated with a particular Tribe or nation. This Part explains the statutory meaning of “Indian country,” the different kinds of authority attached to that term, and how PDAs fit within that framework.

Indian country is statutorily defined at 18 U.S.C. § 1151. It includes all reservations, all dependent Indian communities, and “all Indian allotments, the Indian titles to which have not been extinguished,” as well as allotments no longer owned by Indians but within reservation boundaries.43

Most Indian allotments were created from reservation land by the passage of the Dawes Act and other, similar laws.44 On targeted reservations, each Tribal citizen was permitted to choose a plot of land within the reservation’s boundaries, usually 80 or 160 acres.45 After each member of the Tribe received their allotment, the “surplus” land on the reservation was sold to settlers.46 However, even when the land was owned by non-Indians, it often remained part of the reservation for purposes of jurisdiction. In 1984, the U.S. Supreme Court held that “only Congress can divest a reservation of its land and diminish its boundaries” and that, therefore, “[o]nce a block of land is set aside for an Indian reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.”47 Courts look to the specific language of treaties or agreements to determine a reservation’s post-allotment status.48

Although the policy of Indian allotment ended in 1934 with the Indian Reorganization Act,49 it continues to (usually) be true that on Indian reservations, some allotments are owned by Tribal members and others are owned by non-Indians, but all of it is Indian country.50 Additionally, some allotments have passed out of trust status and are owned in fee simple; the original Indian Reorganization Act intended that all allotments should pass out of trust status after twenty-five years but maintained that “the President of the United States may in any case in his discretion extend the period,” creating a patchwork of trust and fee-simple allotments owned by Indians and settlers, mostly but not entirely within reservation boundaries.51PDAs were created from land that the United States had already acquired from Indigenous peoples and are largely still held in trust.52 Although PDAs were not created from reservations, courts have held that “a reservation set apart out of the public domain [is] just as truly Indian Country as a reservation created from land which had always been occupied by Indians.”53

IV. the flow of congressional intent: water and allotments

During the nineteenth century, Congress passed several laws allocating public land in the western territories.54 The distinctions between these types of allotments and who owns them informs the status of their water rights, and congressional intent regarding allotments and water rights was repeatedly examined by courts in the decades following allotment. Unlike the Desert Lands Act and other federal statutes distributing public land, the statutes governing Indian allotments do not say anything about water rights.55 It has fallen to the courts, therefore, to infer Congress’s intent with regard to water rights for each allotment. This Part will walk through established water rights on non-PDA allotments and explain how that reasoning extends to PDAs.

A. Reservation Allotments and Reserved Water Rights

Reservation allotments are the parcels of land that resulted from general allotment statutes such as the Dawes Act.56 Their primary distinction from PDAs is that they were created from reservation land, rather than land in the public domain, and usually remain subject to Tribal jurisdiction. Reservation allotments retain their water rights as a proportion of the original congressional water reservation. In United States v. Powers, land companies adjacent to a reservation challenged the water use of Crow citizens who had “succeeded to the interest of the original allottees either by mesne conveyances or by purchase at government sales of deceased allottees’ lands” on the reservation.57 The Court relied on Congress’s intent that allotments support the Indians’ pursuit of settlement and farming to hold that, even where the Secretary of the Interior had not prescribed rules for irrigation on the plots in question, “when allotments of land were duly made for exclusive use and thereafter conveyed in fee, the right to use some portion of tribal waters essential for cultivation passed to the owners.”58

Courts further developed this system of water allotment in a series of cases on the Colville Indian Reservation that examined the water rights of reservation allotments held by non-Indians.59 In Colville Confederated Tribes v. Walton, a non-Indian farmer petitioned for the use of the reserved water rights attached to his allotments, which he had purchased from Indian allottees and which remained part of the Colville Reservation.60 The court examined prior holdings on reserved rights and the General Allotment Act and concluded that Walton had a water right that was bounded by the Indian allottees’ actual use.61 Specifically, the court said Indian allottees were entitled to a “ratable” share of water (i.e., a share of the reserved water proportionate to their share of the reserved land), and non-Indians had priority use of that right:

[An] Indian allottee does not lose by non-use the right to a share of reserved water. This characteristic is not applicable to the right acquired by a non-Indian purchaser. The non-Indian successor acquires a right to water being appropriated by the Indian allottee at the time title passes. The non-Indian also acquires a right, with a date-of-reservation priority date, to water that he or she appropriates with reasonable diligence after the passage of title. If the full measure of the Indian’s reserved water right is not acquired by this means and maintained by continued use, it is lost to the non-Indian successor.62

Throughout the line of cases that became part of the Walton adjudication, it was essential to the court’s reasoning that Indian allottees were empowered to sell their reserved water rights along with their allotted land because they could not derive the full benefit of the allotment if they were forced to sell land without accompanying water.63

B. Water Rights of Homestead Act and Other Non-Indian Allotments

As this Section will show, laws allotting Indian land differed significantly from other allotment laws in their treatment of water rights because the federal government explicitly declined to reserve water when creating non-Indian allotments.

In the rush to settle the western territories, several laws were passed in addition to the General Allotment Act to allocate “public” land to settlers.64 Two of the largest allotment programs were governed by the Homestead Act of 1862 and the Desert Lands Act of 1877 (DLA).65 These laws bore some similarity to the General Allotment Act, in that they allocated plots to settlers who lived on and farmed the land; the Homestead Act allocated 160 acres, while the DLA allocated up to 640 acres.66

Critical requirements distinguish these allotments from those made under the General Allotment Act. A settler made a claim under the Homestead Act by moving to a tract of land, building a residence, and farming the land.67 If a person lived on a tract for five years, they were issued a patent from the government confirming their ownership of the allotment.68 Congress’s intent for these allotments is clear from the Act’s language, which states:

[N]o certificate shall be given or patent issued therefor until the expiration of five years from the date of [entry]; . . . the person making such entry . . . shall prove by two credible witnesses that he, she, or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit . . . [after which they] shall be entitled to a patent.69

The Act made no provision for water rights, nor have courts found they were implied. In Big Horn IV, the Supreme Court of Wyoming found:

1. Only land that was once an Indian allotment can be awarded a reserved water right.

2. Claims based on title acquired under such federal programs as the Homestead Act, the Cash Entry Act, the Desert Land Act and the Federal Reclamation Act are not entitled to a reserved water right.70

Congress’s intent in passing the Homestead Act was not to encourage industrial laborers to take up an agrarian lifestyle, reward decommissioned Union soldiers, or provide material assistance to new immigrants, although it ended up contributing to each of these things; instead, it aimed to encourage people to move west, build farms, and stay there in order to extend control over land in the territories.71

The DLA was equally explicit about its intent for settlers to cultivate land in the West. It does not require witnesses to settlement to qualify for a patent; instead, the DLA requires a would-be settler to acquire water rights under state law and prove their ability and intent to irrigate and farm the land. Specifically, the Act requires a settler to declare under oath

that he intends to reclaim a tract of desert land . . . by conducting water upon the same, within the period of three years thereafter[.] Provided, however,[t]hat the right to the use of water by the person so conducting the same, on or to any tract of desert land . . . shall depend upon bona fide prior appropriation.72

Another section of the DLA requires settlers to

file a map of said land, which shall exhibit a plan showing the mode of contemplated irrigation, and which plan shall be sufficient to thoroughly irrigate and reclaim said land, and prepare it to raise ordinary agricultural crops, and shall also show the source of the water to be used for irrigation and reclamation.73

The DLA makes clear that the settler, not the United States, bore the burden of acquiring water rights.74

Courts have found violations of these provisions sufficient to deny claims to allotments under the Homestead Act and the DLA. In Robert J. Proctor, for example, the Interior Board of Land Appeals rejected the appellants’ application to use their DLA allotment to grow Christmas trees because the trees were not an agricultural crop and timber cultivation was governed by a different statute.75 The Board noted that “the ultimate goal of both the Homestead Act and the Desert Land Act were the same, viz., the transformation of heretofore undeveloped land into productive farms.”76 In Stewart v. Penny, although the court ultimately allowed the petitioner to remain on his land, they agreed with the Land Office that “the allowance of this entry . . . without requiring the entryman to show a water right sufficient to cultivate at least 1/8th of the land in the entry, or 15 acres, was erroneous.”77 The court in Penny found that the Homestead Act did not allow the Bureau of Land Management to withhold the patent if the petitioner had fulfilled the other requirements of the Act by settling and cultivating the land, but cautioned that it “may or may not” have been improperly classified for settlement because the Act required a showing of water rights.78

In sum, the federal government’s purpose and responsibility when creating allotments for non-Indians were distinct from the purpose and responsibility of Indian allotment acts. The government required settlers to show active efforts to establish water rights on their claims—a process that differs significantly from the assignment of Indian allotments.79

C. Recognizing Water Needs of Public Domain Allotments

Congress’s intent for PDAs granted under the General Allotment Act differs from the intent guiding the Homestead Act and the DLA, and its treatment of water rights differs accordingly. Applicants under the Homestead Act and the DLA are responsible for acquiring sufficient water rights to irrigate the land. By contrast, under the General Allotment Act, the government is responsible for determining that sufficient water exists on land chosen for a PDA before it is granted to the Indian allottee.80

The General Allotment Act’s congressional purpose was to support the Indians in a transition to settler agricultural practices.81 It nominally recognized an obligation to compensate and support them by covering all the fees associated with allotments and paying for the “surplus” land that the United States sold to settlers.82 To ensure that allotments would fulfill their congressional purpose of supporting Indian families, the Department of the Interior surveyed land to ascertain its highest and best use; each Indian could be granted “forty acres of irrigable land or eighty acres of nonirrigable agricultural land or one hundred sixty acres of nonirrigable grazing land.”83 Unlike the grant in Penny, if during the application process it was found that land could not support a family through its designated use, the Department of the Interior would revoke the patent despite any reliance.84

In Saulque v. United States, the petitioner was informed by a Bureau of Indian Affairs (BIA) agent that land had been “temporarily withdrawn [from the public domain] for use of homeless Indians living in Inyo and Mono Counties” in California.85 Petitioner Joseph Saulque, a Paiute Indian, settled on the land and applied for an official allotment there, but his petition was denied because the plot he chose “would not support the residents” either through agriculture or grazing.86 Saulque appealed the decision, pointing out that he was in fact living there, but the Ninth Circuit held firmly that “land is available for allotment to Indians only if it is suitable for agricultural purposes, is suitable for a home for the Indian and his family, and the return from the use of the land would support the residents”; the plot Saulque had chosen was “rocky” and “sandy” and did not qualify.87

In Saulque and similar cases involving the General Allotment Act, courts have not read in, nor did Congress include, a responsibility for Indian allottees to obtain or demonstrate state water rights on their land.88 Instead, the Department of the Interior has a responsibility to choose plots of land that already have access to sufficient water to support an Indian family.89 PDAs are explicitly subject to this requirement and are only granted where sufficient water is available to the allottee. The Claims Court has held that “the government has no duty to develop irrigation facilities for tribes or to deliver irrigation water to allotments,” but the United States recognizes water rights for Tribes even without a duty to help them develop those rights.90 As the next Part argues, the difference in statutory construction, in combination with the Indian canons of construction, should be read as implying reserved water rights for public domain allotments.

V. how to read laws: indian canons of construction and the united states’s trust responsibility

The General Allotment Act does not contain any specific reference to the water rights of PDAs; finding that these rights exist is a matter of interpretation. When interpreting laws, treaties, executive orders, and other documents governing the relationship between Indians and the United States, courts must consider the Indian canons of construction. This Part explains the United States’s trust responsibility to Tribes, the Indian canons of construction, and how both concepts relate to water rights.

A. Trust Responsibility

The trust relationship giving rise to the canons is often attributed to Chief Justice Marshall’s opinions in Cherokee Nation v. Georgia and Worcester v. Georgia, in which he described the Tribes as “domestic dependent nation[s]” who had granted rights to the United States through treaties and reserved for themselves all rights and property not clearly ceded.91

Because of this dependent relationship, the United States has a trust responsibility to Indians not unlike the private trust relationship governed by the Restatement of Trusts and common-law principles.92 This responsibility often arises in controversies over the management of Tribal resources, in which “the government’s role is most akin to that of a private fiduciary.”93

Allotments, like reservations, are held in trust for Indians by the federal government. The Indian Reorganization Act limits the government’s general land-trust duties to preventing state taxation or alienation.94 However, courts have recognized other places where statutes and regulations create a “high fiduciary responsibility” to manage resources for the benefit of a tribe.95 The petitioner in Saulque attempted to base his claim for allotment on the United States’s trust responsibility to him and his family; Saulque had relied on incorrect information from a BIA agent and built a home on land that was later deemed not suitable for allotment.96 The court found that a trust responsibility existed between the United States and the petitioner but did not apply it as Saulque proposed. The court held:

It should be obvious that this trust relationship was the very reason why neither Congress nor the President would allow an allotment of land to be granted to an Indian where the land was not fit for agriculture and would not support the Indian and his family. To do otherwise would result in great hardship and injustice to the Indian and his dependents.97

In this case, the court extended the trust responsibility beyond preventing alienation and into ensuring that the Indian petitioners settled on land that could reasonably support them in the long term. This interpretation extends from the General Allotment Act’s goal of providing settlements for the Indians and their families, which would necessarily include water.98

B. Indian Canons of Construction

The Indian canons of construction apply when there is ambiguity in a statute or treaty; when a law is clear on its face, the canons “will not come into play.”99 They are intended to ensure that treaty rights are not abrogated without an explicit declaration of congressional intent.100 The canons are not a product of “judicial solicitude” for a marginalized group but an aspect of the government-to-government relationship between the United States and the Tribes intended to “mediate the problems presented by the nonconsensual inclusion of Indian nations into the United States.”101

Specifically, the canons require that any ambiguous treaty provision or law applying to the Indians be construed: (1) “as the Indians would have understood it”; or (2) “liberally in favor of the Indians”; and (3) “ambiguities in the treaty language must be resolved in favor of the Indians.102 For example, in Herrera v. Wyoming, the U.S. Supreme Court held that neither Wyoming’s admission to the Union nor the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal treaty right to hunt on the “unoccupied lands of the United States” outside their reservation.103 Congress had made no clear statement abolishing this right, and the Court declared that the test for determining treaty rights “is whether Congress has expressly abrogated an Indian treaty right or whether a termination point identified in the treaty itself has been satisfied.”104

Although the Court in recent years has applied the canons somewhat inconsistently, they remain good law; additionally, “[i]nconsistent use of the canons of construction in interpreting Indian treaties and statutes jeopardizes Indian rights, Indian interests, and the federal-Indian trust.”105 In the context of water rights, the canons of construction may be applied to interpret land grants as including rights to water unless Congress specifically stated otherwise, since the Winters court found that the Indians would have understood land grants to include water rights.106

VI. california indian history: public domain allotments and the “lost treaties”

This Part discusses California as a case study for applying the Indian canons of construction to laws governing Indian land, including the statutes establishing PDAs, to reach conclusions about PDA water rights. Accordingly, this Part contains a brief historical overview of California Indian land tenure. Native history in California is unique, due to California’s history as Indigenous, Spanish, Mexican, independent, and United States territory.107 In part due to this history, California has a large share of PDAs as well as fully appropriated water systems in most of the state, making the water rights of PDAs a crucial human-rights issue for California Indian allottees and their heirs and designees.108

California’s Indigenous peoples have a long history stretching back through time immemorial. Their interactions with Europeans began not with settlers coming west from the British colonies, but with Spanish explorers coming north from Mexico. California has belonged successively to its Indigenous peoples, to the Spanish Crown, to Mexico, and to the United States as a territory and as a state.109 A thorough examination of this history, or even of California Indians’ history with the United States federal government, is outside the scope of this Essay. Instead, this Essay will briefly describe the evolving status of Indian land in California and why PDAs play such a critical role in in that context.110

Spanish and Mexican colonization represented, for Indigenous peoples, a contradiction between words and actions that resulted in death and dispossession lasting over a century. Nominally, Spain’s Law of the Indies recognized the Indians’ territorial rights and claims; the Spanish crown instructed that when building pueblos and other settlements

the Indians shall be given all the land [and more, if possible] that belongs to them, both as to individuals and communities alike, and, specially those lands where they may have made ditches [acequias], or any other improvement . . . . And for no reason can these lands be sold or taken away from them.111

That protection extended to the Indians’ water rights; the U.S. Court of Appeals for the Tenth Circuit noted in 2020 that the Spanish settlers “never actually ended the Pueblos’ exclusive use of water or limited their use in any way.”112

Despite the Crown’s strong language, these protections were not to be realized. Spain’s establishment of twenty-one California missions between 1769 and 1823 removed tens of thousands of Indians from their traditional homelands and mixed together different bands and Tribes who came from different places with different cultures and languages.113 When California passed from Spain to Mexico, the missions were maintained in much the same manner. Missions bore some similarity to allotments in that they were an attempt to convert Indians into western-style farmers (albeit specifically Christian ones).114 Like allotment land, mission land was held in trust rather than owned by the Indians who labored upon it, with a view that one day, when the Indians proved themselves sufficiently “capable,” the missions would be secularized and the land granted to them.115 Instead, beginning in 1834, the Indians were removed from the missions, and the land was granted to Mexican settlers. William Wood notes that “[t]he Mexican government apparently tried to fix this ‘error,’ but ‘few of the Indians were willing to return to the Mission land because of their experiences there.’”116

The United States took possession of California with the Treaty of Guadalupe-Hidalgo in 1848 and promised to uphold “property [rights] of every kind” for Mexicans, including water rights.117 Nominally, the United States also protected at least some of Indian country, but “[b]ecause the American laws protecting Indian lands were so rarely followed, much of what was Indian country in 1846 lost its status as such during the following decades and passed out of Indian possession, ownership, and control.”118 The Land Claims Act of 1851 declared that any land which was not formally claimed within two years would pass into the public domain; unaware of the law’s requirements, most Indians failed to present their claims and became homeless.119 Due to the violence accompanying the Gold Rush and the doctrine of discovery, the Indigenous population of California declined by as much as ninety percent and many of the remaining peoples lost their ancestral lands.120

In 1851, congressional representatives went to California to make treaties with the Indians, whereby they would be settled on reservations like the Native peoples of other United States territories. 139 Tribes and nations signed 18 treaties reserving 8.5 million acres of land in California for Indian reservations and granting the rest to the United States.121 However, when the representatives returned to Washington, the senators from California felt that too much valuable land had been granted to the Indians and caused the treaty ratifications to fail.122 The eighteen treaties were “sealed in a vault,” becoming known as the “lost treaties,” and the land reverted to the public domain—although Congress neglected to inform the Tribes, many of whom had already moved to the agreed-upon reservation land.123 Congress later attempted to provide settlement for California Indians through the Rancheria Act of 1958, but “the water and sanitation facilities promised the Indians under the terms of the Act were, in virtually every circumstance, either inadequate or not provided at all,” so most of the land passed out of Indian ownership through tax sales or under duress to obtain basic necessities.124

This is the context in which California Indians today make claims to PDAs under the General Allotment Act of 1887. Much of the land that had legally been theirs—indeed, land that Congress attempted to reserve for their benefit—passed into the public domain through a combination of vigilantism, well-intentioned but poorly enforced laws, and blatant land grabs.125 Over the past century, “five rancherias, an ‘Indian village,’ an ‘Indian community’ and four reservations have been established [in California],” and 400 allotments have been granted from the public domain.126 The terminology is varied because of California’s unique history; only in California have “the words ‘ranchería,’ ‘village,’ ‘pueblo,’ ‘mission,’ ‘rancho,’ ‘reservation,’ [and] ‘colony’ . . . been used to describe Indian country.”127

Most of these types of Indian country have been understood to include water rights, in part due to their history dating back to Spanish colonization. Applying the Indian canons of construction, therefore, it is reasonable to assume that PDAs—like the rest of California’s Indian country—would include water rights for three reasons.

First, Indian country in California has historically included water rights, in part due to the legacy of Spanish law. Since the first European attempts at colonization, treaties with California Indians have reserved water rights either expressly (as with the Treaty of Guadalupe-Hidalgo) or impliedly (as with the unratified reservation treaties).128 It is therefore likely that Indians accepting allotments—the latest in a long line of Indian land reservations—would understand them to include rights to water, which falls within the first requirement of the canons to defer to Indians’ own interpretation of laws that apply to them.129 Second, the statute’s silence should, according to the canons, be construed to the Indians’ benefit, which would certainly include water rights.130 As mentioned earlier, California already experiences water scarcity, meaning that any Indian allottee wishing to make a home on a PDA would need to establish a water right independent of the state appropriation system.131 Finally, the trusteeship obligations of the United States to Indians means that laws providing land to Indians as a home or settlement should be interpreted as including an obligation to provide an actual benefit, which for a PDA must include a right to water.132

VII. competing systems: indian water rights and state appropriations

The complex overlap of state, federal, and Tribal jurisdiction on shared watersheds can make water-rights adjudication complicated.133 This Part explains how states and reservations have historically balanced water rights and how PDAs could assert water rights in systems where the water is mostly or entirely appropriated.

A. Defining and Integrating Reserved and Priority Rights

Water regulation in the United States is primarily a matter of state law. The federal government regulates water quality (though much of this is done through state mechanisms) but leaves allocation to state governments.134 Eastern states tend to use a riparian system that assigns water rights based on property ownership and “reasonable” use, while the more arid western states use prior appropriation, also known as priority rights or the Colorado doctrine.135 Prior appropriation is a “first come, first served” doctrine, in which the earliest claimant has a superior right to later appropriators, so long as they make actual beneficial use of all the water claimed.136

Federal reserved rights, such as Winters rights, are not subject to prior appropriation or the beneficial-use requirement.137 Because Indian country is under federal jurisdiction, state law typically does not apply to Indians on Tribal land. However, when federally reserved rights are adjudicated in a priority system, courts have typically treated them as being part of that system with a priority date of the agreement, order, or statute creating the reservation.138 Despite being a sort of patch from one system into another, the end result is usually a cognizable and usable water right for Indians:

[R]eserved rights, like appropriation rights, are assigned priority dates. But the priority of reserved rights is no later than the date on which a reservation was established, which, in the case of most Indian reservations in the West, is earlier than the priority of most non-Indian water rights. Thus, a reservation established in 1865 that starts putting water to use in 1981 under its reserved rights has, in times of shortage, a priority that is superior to any non-Indian water right with a state-law priority acquired after 1865. For these reasons, Indian rights are generally prior and paramount to rights derived under state law.139

Following this logic, PDAs would have reserved water rights with a priority date of the creation of the allotment—that is, when it was patented to the allottee. In United States v. McIntire, holders of an allotment argued that their Indian predecessor in interest had acquired water rights on the Kootenay reservation through prior appropriation; however, the Court held that “the Montana statutes regarding water rights are not applicable, because Congress at no time has made such [state] statutes controlling in the reservation,” and the water right was not valid.140 Conversely, where non-Indians hold allotments on a reservation, courts have found that state law can apply. In United States v. Anderson, the Ninth Circuit found that waters in the Chamokane Basin used by non-Indian allottees in excess of the Tribe’s reserved rights were subject to state regulation.141

B. States vs. Tribes: How Water Rights Are Settled

Where Tribal and state water claims conflict, courts typically appoint a water master or third party to examine legal and scientific evidence in order to determine the water rights of disputing parties.142 The appointment of water masters has become particularly relevant as the U.S. Supreme Court’s interpretation of the McCarran Amendment has given states the opportunity to quantify federal reserved water rights, so long as they are willing to expend the time and money for adjudications.143

Water masters are particularly necessary when adjudicating the rights of PDAs because those adjudications require fact-intensive inquiries into the individual legislative history and current status of the land parcel:

A party attempting to prove its rights on a specific public domain allotment or allotments on terminated reservations must review the legal documents and legislative history or context of the actions creating the allotments and the actions leading to the termination of the reservation. This documentation is used as evidence of federal intention. In some cases, the documents may have specific language regarding how to treat water rights on the particular lands.144

For instance, in United States v. Adair, Congress terminated the Klamath reservation, returning it to the public domain, then allotted some land to Klamath Indians.145 The Court held that Congress had intended that the water rights of the reservation continue on the allotments.146 Water masters use a variety of techniques to determine how much water Congress intended to reserve to fulfill a particular purpose. In the Adair adjudications, the water master determined a “yearly allocation of specific quantities of water to the various parties to the federal suit.”147 Over the decades since the establishment of Winters rights, methods for quantifying those rights against state appropriations have evolved, and their use depends heavily on the established purpose of the reservation.148

Overall, adjudications have emphasized treaties, executive orders, and other documents establishing Indian land reservations to determine the purpose of land grants or reservations and the amount of water necessary to fulfill that purpose.149 For PDAs, whose purpose was to provide homes for Indian families, such an investigation might depend upon the geography, history, and other attributes of a particular allotment, as well as the date on which the allotment was given over to the Indian owner or beneficiary.


Public domain allotments were created to serve the needs of Native Americans who did not have homes on reservations or other Tribal land. It is clear from legislative and historical context that these lands serve a purpose distinct from other allotted lands: rather than a tool of expansion, they are a nod to the United States’s trust responsibility to provide settlement for the Indigenous peoples of this land. PDAs comprise about 1.23 million acres in the United States, primarily in the West, including about 20,000 acres in California.150 In California and elsewhere, PDAs can provide land to Native peoples who were otherwise completely dispossessed of their ancestral territories. In order to serve their purpose as homes and settlements for Indians, or in order for these grants to have any real value to their present-day Indian owners, it is imperative that reserved water rights attach to the land with a priority date of the federal patent.

The author would like to express her gratitude to Professor James Salzman of University of California Los Angeles School of Law, for his instruction in water law and his guidance on this paper, and Rachel Green, for her infinite patience and advice. The author would also like to extend special thanks to Professor Dylan Hedden-Nicely of the University of Idaho College of Law for sharing his expertise in water law and its intersection with Indian law, which was invaluable. Much appreciation also to Michael Godbe at California Indian Legal Services, for proposing this paper topic in the first place, and to Professor Lauren van Schilfgaarde at UCLA School of Law, for introducing me to Indian law and Indigenous water issues and for being a phenomenal teacher and inspiration. Finally, to Ethan Rubin, thank you for your constant support and encouragement in all things.