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Show The Indians did, however, retain water rights for the lands under this jurisdiction. ^' The courts in several cases ruled that the United States could withdraw any or all unappropriated water on Federal and Indian lands and reserve it for Indian use. This doctrine was first applied in a court case of 1908; it later " became known as the " Winters Doctrine." " Winters v. United States -' was a suit brought by the United States to restrain Henry Winters, et al. from constructing or maintaining dams or reservoirs on the Milk River in Montana or in any manner preventing the waters of the river or its tributaries from reaching the Indian reservation. The Indian reservation involved in the dispute was part of a large tract which had been set aside for the Indians by an act of Congress April 15, I87U. It was agreed under this suit the Indians _,, had the absolute right to use the waters of the river for any purpose." In Skeen versus the United States ( 273 Fed. 93 ( C. A.- 9 Idaho, 1921)), the United States brought suit on behalf of the Indians on the Fort Hall Indian Reservation to determine their rights to the water of Indian Creek for irrigation purposes. The courts ruled that the lands retained by the Indians were also provided with a permanent reservation of water. ^ Indian water rights in Utah are based on this concept. " Many of the decrees which have applied the Winters Doctrine have created a problem by leaving an ' open end.' The Supreme Court simply stated that there was water ( without fixing the quantity) reserved for Indian use when the reservation was created. In the past this uncertainty as to quantity reserved has created a practical problem in that no other water user with a priority date later than the Indian water rights could safely proceed to develop an economic use for the unused water. At a given point in time it may have appeared that the quantity of water would exceed foreseeable Indian needs, but no one could be assured that the Indians' needs would not substantially increase at some future time to the point where the Indians would require all of the water. This uncertainty as to the rate of Indian growth and the extent of their future needs left a cloud on the surplus or unused water." 1~-?' o / " In the 1963 Arizona v. California -/ decision, the uncertainty as to total quantity was removed by a holding that the quantity was measured by the needs of the lands within the reservation which were susceptible of irrigation. This is a standard which can be applied 1/ Winters v. United States, 207 U. S. 56U, 577, 52 L. Ed. 3^ 0, 3^ 6, 28 Sup. Ct. 207, 212 ( 1908). 2/ Arizona v. California, 373 U. S. 5^ 6, 10 L. Ed. 2d 5^ 2, 83 Sup. Ct. 1U68 ( 1963). 553 |