Laserfiche WebLink
<br />support tribal fishing rights guaranteed by the 1859 Treaty of <br />4It Hells Gate. The irrigation districts in turn filed an injunction <br />stating that the reduced diversions injured their members. <br />The federal district court judge ruled in favor of the <br />non-Indian irrigators, stating that the BIA must be guided by the <br />principle of "just and equal distribution of all waters of the <br />Reservation." The Ninth Circuit Court of Appeals overturned this <br />finding in November 1987, stating that the Treaty of Hells Gate, <br /> <br />"accompanied by a history indicating that one of the <br /> <br />essential purposes in creating the reservation was to <br /> <br />preserve Indians' right to fish, created a reserved <br /> <br />[instream] water right in the Tribe."[21] <br /> <br />4It The court then invoked the concept of first in time, first <br />in right, concluding: <br /> <br />"Because any aboriginal fishing rights secured by treaty are <br />prior to all irrigation rights, neither the BIA nor the <br />Tribes are subject to a duty of fair and equal distribution <br />of reserved fishery waters." <br /> <br />Consequently, the BIA must continue to administer the water <br />distribution network to ensure that sufficient flows remain in <br />the natural stream to support tribal fishing activities. <br /> <br />4It <br /> <br />-17- <br />