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WSP00897
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Last modified
1/26/2010 12:28:23 PM
Creation date
10/11/2006 10:00:15 PM
Metadata
Fields
Template:
Water Supply Protection
File Number
8410.300.60
Description
Basin Multistate Organizations - Missouri Basin States Association - Reports
State
CO
Basin
Statewide
Date
11/8/1984
Author
MBSA
Title
The Issue of Indian Reserved Water Rights
Water Supply Pro - Doc Type
Report/Study
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<br />Indian allottee pass his water right to an Indian or non-Indian subsequently <br /> <br />acquiring his allotted land? If so, were the water rights thus acquired the same <br /> <br />as the previous Indian allottee's? Could an Indian tribe or individual Indian <br /> <br />allottee sell or transfer an Indian reserved water right for use off the <br /> <br />reservation? <br /> <br />Jack D. Palma, former Assistant Attorney General for the State of <br /> <br />Wyoming, reviewed some early court decisions regarding the transferability of <br /> <br />Indian water rights in the following manner: <br /> <br />As a consequence of . . . fee ownership of tracts <br />located within a reservation, several lawsuits have originated <br />over claims to Winters water rights made by successors in <br />interest to such land. The earliest of these allotment cases, <br />United States v. Hibner (27 F.2d 909j D. Idaho, 1928), <br />determined the rights of non-Indian purchasers of allotted <br />land involving the Fort Hall Indian Reservation in Idaho. In <br />its decision, the court first addressed the rights of the Indian <br />allottees, holding that they were entitled to reserved rights <br />with a priority date equal to the ratification date of the <br />Fort Bridger Treaty which established the reservation, and <br />tha t these rights could not be abandoned or forfeited for <br />non-use. <br /> <br />The court also recognized the right of allottees to sell <br />their land and water. The purchasers of such water rights <br />were granted the right to the Winters priority date but were <br />held to be immediately governed by state law. Further, <br />purchasers were limited to the amount of water which had <br />been actually used by the Indian allottee, along with that <br />which could be put to use with reasonable diligence. <br /> <br />The next case to address the allotment issue was <br />United States v. Powers (305 U.S. 527, 1939), in which the <br />rights of non-Indian purchasers of allotments which had <br />formerly been a part of the Crow Reservation in Montana <br />were at issue. The United States sought to enjoin the non- <br />Indian holders of the allotments from using waters above a <br />government irrigation project 011 the reservation. <br /> <br />In den y ing the government's request for an injunction, <br />the Supreme Court observed: '(W)hen allotments of land <br />were duly made for exclusive use and thereafter conveyed in <br />fee, the right to use some portion of tribal waters essential <br /> <br />-14- <br />
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