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<br />0_,... - nr- <br />. U t:1 '.", <br /> <br />claim to a water right based on a state water permit, noting <br />that the State of Washington has no power to regulate water <br />which is part of an intra-Indian reservation water system. <br />The Ninth Circuit then ordered the district court to <br />'determine the number of irrigable acres Walton owns, and <br />the amount of water he appropriated with reasonable <br />diligence in order to determine the extent of his right to <br />share in reserved water (from No Name Creek).' Once <br />having ascertained these amounts, the district court was to <br />'calculate the respective rights of the parties,' bearing in <br />mind the Tribe's implied reserved water right for fishery <br />maintenance. The district court found that Walton, a non- <br />Indian who succeeded to ownership of alloted reservation <br />lands, owned 170 irrigable acres and consistently irrigated at <br />least 104 acres. These lands passed out of Indian ownership <br />between 1921 and 1925, with the related water rights never <br />having been exercised by Indians. Walton acquired the land <br />in 1948. Based on these facts, the court held that Walton <br />had exercised reasonable diligence in beneficially applying <br />water for agricultural purposes. The court was impressed <br />with the argument that what is 'reasonable' should be <br />'ascertainable with refe rence to what is practical.' The <br />court then calculated Walton's water right by multiplying the <br />number of acres he had 'diligently' placed under irrigation by <br />a water duty and then, after calculating a water right for <br />other allottees, prorated the total based on the available <br />water supply, and reduced the respective water rights <br />accordingly. The court then turned to the question of the <br />Tribe's fishery water right and held that it equaled the <br />difference between the potential water right of the allottees, <br />other than Walton, and the amount of water the Tribe, as <br />lessee of the other allotments, is presently using for <br />irrigation. The court considered, but rejected, the argument <br />that the fishery water right took precedence over the rights <br />for irr iga tion. The court also rejected the argument that <br />(absent some relevant law not brought to the court's <br />attention) the Tribe could dispose of property rights (water <br />rights) of its members or their successors in interest in order <br />to fulfill the Tribe's fishery needs. (Western States Water, <br />Issue 0487, September 16, 1983). <br /> <br />Another recent court decision involving, among other things, the question <br /> <br />of transferability of Indian reserved water rights, occurred in U.S. v. Adair <br /> <br />(Supra, p. 7). Regarding the transferability issue, the Ninth Circuit Court of <br />Appeals in Adair upheld a lower court decision that individual Indian landowners <br />(allottees at the time the Klamath Indian Reservation in Oregon was terminated) <br />had water rights, subject to the paramount rights of the tribe (for hunting and <br /> <br />-17- <br />