Laserfiche WebLink
<br />oa~3 <br />v <br />--, <br />- <br /> <br />. <br /> <br />. <br /> <br />9~ <br /> <br />NA TURAL RESOURCES jOl"R!\'AL <br /> <br />(Vol. 20 <br /> <br />THE LAW WITH RESPECT TO ALLOB1ENTS <br /> <br />An additional issue concerning the transferability of Winters rights <br />involves the rights of purchasers of land which was formerly a part of <br />the reservation. The private ownership of lands within the exterior <br />boundaries of Indian reservations is common, brought about by the <br />goal of assimilation which dominated federal Indian policy in the <br />early 1900s. After the cessation of hostilities between white settlers <br />and Indians, the government embarked upon a program designed to <br />bring the Indian into the mainstream of society. A key element of <br />the federal policy was to divide reservation lands into individual <br />tracts for each Indian" and to make available the unallotled land <br />within the reservation to non-Indians for homesteading purposes' 3 <br />As a consequence of this fee ownership of tracts located within a <br />reservation, several lawsuits have originated over claims to lI'inters <br />water rights made by successors in interest to such land.' 4 The <br />earliest of these allotment cases, United SlalesI'. -Hibner." deter. <br />mined the rights of non-Indian purchasers <Jf allotted land invoh'ing <br />the Fort Hall Indian Reservation in Idaho. In its decision, the court <br />tirst addressed the rights of the Indian a1lottees, holding that they <br />were entitled to reserved rights with a priority date equal to the <br />ratification date of the Fort Bridger Treaty which established the <br />reservation, and that these rights could not be abandoned or for' <br />feited for non-use' 6 <br />The court also recognized the right of aJlottees to sell their land <br />and water. TIle purchasers of such water rights were granted the right <br />to the Win JeTS priority date but were held to be immediately <br />go\'erned by state law. Further, purchasers were limited to the <br />amount of water which had been actually used by the Indian <br />allottee, along with that which could be put to use with reasonable <br />diligence. <br />The next case to address the allOlment issue was United States I'. <br />PO\l-ers.' 7 in which the rights of non-Indian purchasers of allotment> <br />which had formerly been a part of the Crow Reservation in MonwnJ <br />were at issue. TIle United States sought to enjoin the non-Indian <br />holders of the allotments from using waters above a go':ernlllel11 <br />irrigation project on the r~servation. <br /> <br />-\2. St'e, e.g.. Gt:ncr:ll AUotment Act of 1887, 25 C.S.c. ~331 (976) (commonl~ rt" <br />)'l':red [0 a~ the Da.....es AC'n. <br />43. S.., e.g., j ~43 U,s.c. 161-302 (1976). <br />44. It appears that the lessees of allotted lands ffia}' e'\ercise the waler rights appurI(J"I,Ir..: <br />10 such J..mds. Sk{'cm v.l"nlted Stales. 273 F. 93, 9b 19thCir. 1921). and Ih31 issue "ill r,... <br />b( Ul~3.ted herein. See also I{l'pon 01 Special Mas[cr 266. <br />.JS. 27 F.2d 9'}~'lD.ld~ho 1928). <br />46. Jd.:it 912 <br />47. )OS U.S. 527 (,939). <br />