WSP08496 - Laserfiche WebLink

Home Browse Search

'. . . '~)5 - "'....... 100 NA TURAL RESOURCES JOUR NAL {Vol. 20 Bascd upon that reasoning, the court denied Walton his reserved right, but granted him a right to irrigate 32 acres, with a priority date cquaI to the date that the \\'ater had first been put to usc. Finally, the court held that. when an allotment is transferred to non-Indian ownership, the purpose for the implied re,~rvation of water is de- feated. and that portion of the Winters water right does not inure to the benefit of the tribe, but is lost completely. TIle Walton decision cannot be said to represent a clear-cut victory to any of the principals in the case," and its precedentiaI value is limited by its curious reversal of prior decisions which hold that Indian water rights are appurtenant t-:- the land within the Indian reservation." Apparently, the court was heavily infiuen:ed by its conclusion that the reserved right is a personal right created solei\' for the use of the tribes," a conclusion whi',h the court reached after analyzing the rationale behind the lVilllers doctrine." This element of the Wallon decision transcends the facts of the case, for it isolates the real significance of a Winlers water right-that it is created for and limited to the purpose of satisfying water needs within the boundaries of the reservation. CONCLUSION Only when the Wi/Hers doctrine is advanced as an economic doc- trine does it reach the boundless proportions suggested by its staunchest dogmatists. However, it is clear that the h'illlers doctrine was designed for the limited purpose of meeting the needs of Indian reservations. \\nile the doctrine arose to assure that Indians residing on the reservation would be able to enjoy a quality of life equivalent to that found in the non-Indian agrarian community, there is no foundation in law or equity to support the transferability of Winlers water rights for use outside the boundaries of Indian reservations. 52. While \\'a1hl:1~ton State took the position that the reserved right pJ.sseJ \\ith the land, it probabl}' jj, quite content .....ith the decision of the court limiting the scope of rcs,"[\'cd ri~hts ;.!nd Ihus reducing the likelihood that '1 previously unas<:.erted paramounl claim to \\J.l~'r cOl..:ld. without notice, !>pring up and up~et the rights of water u~er5 under state la\\'. Al.h.lition,l.Ily, the case established the right of tho state to c:\ercise its sovercit" aUlhorit}' 10 rcguIJ.e the appropriation and administI:nion of non-rcserv.:d waters within Lhi:' e:\ tcrior boundaries of the rcservation. 53. ReCl'nlly, fo: e:\ample, the court in United Slales and Kalamalh Indian Tribes \'. Adair and the S(~;e of Oregon, Ci\':~ r\o. 75.914 (D. Orc. St:'p. 27. 1979), c:\plicill>' reJecll~'d the tJoldjn~ in h'd.:;!! In fa.vor of the principles of law set forth in lIibner re~pcc(ing lh~' waler righls of noo-[.;,;;an SUCl.:essors to Indian allotmcnt~ S4. 460 I-". SUpp.,i l328. SS. Jd.