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Home > BYU Law Review Collections > BYU L. Rev. > Vol. 1975 (1975) > Iss. 3 (1975)

 

BYU Law Review

Abstract

Summary of Contents

Introduction

I. The Historical Setting, Origin, and Scope of the Winters Doctrine

A. The Historical Setting of the Winters Doctrine: Development of the Doctrine of Prior Appropriation

B. The Origin of the Winters Doctrine: Winters v. United States

C. The Scope of the Winters Doctrine: Water Impliedly Reserved to Fulfill the Purposes of the United States in Establishing Reservations and Enclaves by Withdrawals from the Public Domain

II. The Application of the Winters Doctrine to Indian Reservations, Federal Enclaves and Reservations, and the Public Domain

A. Application of the Winters Doctrine to Indian Reservations

1. The nature of the Indians' reserved water right

a. Uses for which water was reserved

b. The measure of water reserved for each use

2. Aboriginal water rights

3. The effect of the Reclamation Act of 1902 on reserved water rights

4. The effect of other federal statutes on reserved water rights

5. Rights of the non-Indian lessees, transferees, and entrymen

B. Application of the Winters Doctrine to National Parks, Monuments, and Forests

1. The effect of the prior status of lands in national parks, monuments, and forests

a. Reserved and withdrawn lands

b. Acquired lands

2. The effect of various purposes for creating parks, monuments, and other reservations: a discussion of United States u. Cappaert

C. Application of the Winters Doctrine to Fish and Wildlife Areas Reserved by the United States

1. Activities of the Bureau of Sport Fisheries and Wildlife

2. The measure of the reserved water right and full development of the refuge

3. Minimum stream flows

D. Application of the Winters Doctrine to Lands of the Public Domain

1. The effect of statutes on federal reserved rights to water on the public domain

2. Creation of federal water rights by application to beneficial uses upon the public domain

3. Summary

E. Application of the Winters Doctrine to Military Reservations

1. The issue of state jurisdiction over the military's reserved water rights

2. Water rights of acquired lands on military reservations

3. The military purposes for which water was reserved

4. The effect of nonuse, abandonment, or transfer

F. Changes in the Place and Nature of Use of Reserved Water Rights

III. Legislative, Judicial, and Administrative Authority over Reserved Water Rights

A. Legislative Authority over Reserved Water Rights

1. Reserved water rights of Indians

2. Reserved water rights of other federal reservations and enclaves

B. Judicial Authority over Reserved Water Rights

1. The McCarran Amendment and state jurisdiction over non- Indian reserved water rights

2. The McCarran Amendment and state claims of jurisdiction over Indian reserved water rights

a. The principle of tribal sovereignty

b. The relationship of the McCarran Amendment to other acts of Congress

c. State enabling acts and constitutions

d. The legislative history of the McCarran Amendment

3. Removal of Indian water rights cases to federal court

4. The Supreme Court's original jurisdiction over interstate stream apportionments

C. Administrative Authority and a Proposal for Federal Administrative Action to Determine Reserved Water Rights

1. Administrative authority and action to determine Indian reserved water rights

2. Administrative authority and action to determine Indian reserv- ed water rights

a. The need for administrative machinery

b. The authority to establish administrative machinery

c. Proposed administrative action

3. Summary: proposed administrative action

Rights

© 1975 J. Reuben Clark Law School

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