WSP01888

• File Number: 8064
• Description: Section "D" General Federal Issues/Policies - Indian Water Rights
• State: NE
• Date: 11/8/1984
• Title: The Issue of Indian Reserved Water Rights
• Water Supply Pro - Doc Type: Report/Study

QSi8

for cultivation passed to the owners.' Unfortunately,
however, the Powers case was decided on procedural grounds,
and the Court did not have the opportunity to shed any
additional light upon the extent of the non-Indians' rights to
the use of water upon the former allotment (Palma, 1980,
pp. 98-99, footnotes omitted).

Palma then reviewed a more recent case involving the transfer of Indian

water rights, Colville Confederated Tribes v. Walton. Although much of the

federal district court's decision in Walton was later reversed by the Ninth

Circuit Court of Appeals, Palma's analysis of the original decision indicates the

extent to which it broke with precedent concerning the transferability of Indian

water rights:

Recently, the law with respect to the rights of
transferees of allotted land has become unsettled as a result
of the decision in Colville Confederated Tribes v. Walton
(460 F. Supp. 1320, E.D. Wash., 1978). There, the tribes
sought to enjoin the use of water by Walton, a non-Indian
successor in interest to an allotment within the boundaries of
the reservation.

The evidence in the case revealed that the original
allottee had not irrigated the land, although he later sold it
to another Indian who irrigated 32 acres before selling the
land to Walton. Walton claimed a reserved right for the
entire allotment or, in the alternative, for the 32 irrigated
acres of land, on the theory that the reserved water right is
appurtenant to the land and thus passes to non-Indian
landowners. The state of Washington intervened in order to
protect its authority to issue state water rights permits
within the boundaries of the reservation and aligned itself
with Walton.

The United States and the tribes took contrary positions
on the question of alienability of the reserved water right.
The federal government argued that Walton obtained a right
to the amount of water being put to use at the time of the
tr ansfer, while the tr ibes contended that the reserved right
was a tribal right, which could not be alienated to a non-
Indian.

Unpersuaded by the contentions of the parties or by the
previous holdings in United States v. Hibner and United
States v. Powers, the court broke new ground. Although the
court agreed that reserved rights are appllrtenant to allotted
land, it found that reserved water rights exist for the sole

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