Who Was “Winters”?

Lake Sherburne, Montana, on the Milk River

Working today on a piece for the newspaper on Indian water rights, I followed a trail of Google crumbs trying to figure out who was the “Winters” in what’s called “the Winters doctrine”.

The doctrine is a pillar of U.S. water law, which grows out of a 1908 decision by the U.S. Supreme Court in a case known as “Winters V. United States“. It essentially says that Indian water rights are based on the date the reservations were formed, which means they’re entitled to some of the best, most senior water rights in the region. (updated based on Chris’s comment regarding the details of the Winters decision)

The case originated on the Milk River in Montana in the early 1900s, in a legal battle between folks on the Fort Belknap Reservation and non-Indian irrigators upstream. The argument was that the non-Indians were depleting the river, leaving the Indians without the water they needed.

It’s an often-told tale, but I’d never seen a narrative that explains who the named plaintiff was.

A little Googling led me to Indian Reserved Water Rights, a history of the Winters case and the resulting legal issues. The author, John Shurts, says that the great western water historian Norris Hundley actually tracked down “Winters” in old Census records, and found that he name was really “Henry Winter” (no “s”), though even in life he was improperly tagged with that extra letter.

The best bit is this piece of trivia Shurts tracked down from the Jan. 17, 1906 edition of the Milk River Valley News:

Foreclosure proceedings have been instituted in Choteau county to recover about $27,000 from Henry Winters and wife. Winters has left the country, it is said, as a result of disclosures regarding his scheme to kill Stock Inspector Hall and Judge Tattan.

Ah, the Wild West.


  1. Actually John, the idea of practicably irrigable acreage didn’t come into the lexicon until the 1963 Arizona v. California opinion, which quantified the rights of tribes along the lower Colorado. Winters simply said that when the reservation was established to provide a homeland for the tribe, there was an implied intent by the government to set aside the necessary water for achieving the purposes of the reservation – i.e. farming.
    The thing that amazed me about Winters was that it was probably the shortest SCOTUS opinion I read the entire time I was in law school. But those couple of pages of text sure had legs.

  2. Pingback: Who Was Carl Rasch? The lawyer behind the Winters Doctrine : jfleck at inkstain

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