update: A previous version of this post had what I though was a picture of Carl Rasch. Upon inquiry, I think it was a black-and-white picture of some other old dude with a great mustache.
In answer to a question that came up in conversation on Twitter today, herewith an abbreviated version of the story of Carl Rasch, the attorney behind what is known as the Winters Doctrine, the legal principle that, to borrow the words of the late David Getches, ensured “the Indians got the best water rights” in the West.
Our story takes place in the Milk River Valley of Montana, dry hardscrabble land of the sort where many pioneering tales took root. The Fort Belknap Indian tribe used the Milk River for irrigation, sharing it with a number of small communities of European immigrants in the last 1800s. From Daniel McCool’s “Command of the Waters“:
The waters of the Milk River were the only dependable source to maintain these irrigation efforts. When settlers moved upstream from the reservation and began diverting water, the Indians were left with an insufficient supply.
In 1905 the U.S. Bureau of Indian Affairs, concerned about the Fort Belknap tribe’s loss of water, asked the U.S. attorney in Montana, Carl Rasch, to go to court to reclaim the water that the government felt should rightfully belong to the Indian irrigators. The key here was the “doctrine of prior appropriation” – the principle common in western U.S. water law that the first folks to use water have the first priority, and people can’t come later, move in upstream, and siphon it off.
But according to McCool’s account, Rasch wasn’t comfortable with the accounting, and was afraid that the upstream settlers may have really gotten there just ahead of the Indian irrigators he was supposed to protect. So Rasch filed a brief that left the door open to the U.S. government invoking other grounds for claiming dibs on the water for the Fort Belknap tribe, not merely the act of appropriating first. Which turns out to have been a good thing, because, as McCool tells the story, the settlers quickly produced evidence that they started taking water from the Milk River four days before the Indians.
Rasch’s cleverly open-ended legal strategy eventually led to a U.S. Supreme Court decision that found that Indians’ water rights priorities in the West date to the date their reservation was created, not the date they actually began using water on them.
I cheerfully recommend McCool’s book, Command of the Waters: Iron Triangles, Federal Water Development, and Indian Water, a great history of Indian water and federal water development.
And who was “Winters”? Therein lies another fun tale.