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In this Article, the author explores the question of whether nonfederally recognized eastern Indian tribes can claim reserved tribal rights to water under the Winters doctrine. The urgency of resolving this question in the tribes 'favor is underscored by the mounting problem of water scarcity in the East, where most such tribes live, and the problems these tribes have in claiming water under the prevailing systems for managing water in that part of the country, riparianism and regulated riparianism. Recognizing that, to date, these rights have been claimed almost exclusively by federally recognized western tribes who live on withdrawn federal lands in states that manage water under the prior appropriation system, the author nonetheless puts forth an array of reasons why these factors should not bar eastern tribes from claiming the same rights. After examining the major features of the three systems for allocating surface flow and the Winters doctrine, the author will show that there are no insurmountable obstacles to the assertion of Winters rights in non-prior appropriation jurisdictions. The author then turns to various normative and utilitarian reasons why eastern tribes should be able to claim these rights. The Article concludes by showing why the artifacts of federal recognition and federal reservations should not pose a barrier to eastern tribes' assertion of their Winters rights.

Publication Citation

91 Cornell L. Rev. 1203-1260 (2006)