WATER RIGHTS APPURTENANT TO INDIAN ALLOTMENTS Indian Land Working Group Annual Symposium Green Bay, WI August 15-17, 2016

Law Offices of Thomas E. Luebben, p.c. Summary of Winters Doctrine RESERVED RIGHT ASPECT Tribally-reserved right (reserved out of property ceded to U.S.). Federally-reserved right (reserved from allocation under state law). Reserved by implication in (A) Treaties, (B) Agreements, (C) Executive Orders, (D) Acts of Congress. Right is expansive to fulfill purposes of reservation. Right includes ground water (except on the Wind River Reservation). Winters Doctrine PERFECTED RIGHT ASPECT Reserved for all time. Does not require initial beneficial use to perfect. Not subject to loss because of non-use. May be expanded at any time. PRIORITY ASPECT Aboriginal uses are prior and paramount with an immemorial priority. Priority as of date of Treaty, Agreement, Executive Order or Act of Congress creating reservation. TRANSFERABILITY ASPECT Allottee water rights can be sold. Non-Indian acquires Indian allottee’s quantity. Non-Indian acquires Indian allottee’s perfected right (but subject to loss for non-use under state law). Can tribal water rights be leased or sold? Can Indian water right be used off-reservation? QUANTITY ASPECT Aboriginal uses, including fishing. Enough water for present and future needs. Enough water to irrigate all practicably irrigable acres (PIA). Enough water for mineral development? Enough water for industrial development? Enough water for unlimited tribal growth? Enough water for low, moderate or high standard of living?

Origin of Allottee Water Rights 1887 General Allotment Act (Dawes Act). Policy of assimilation through parceling out reservation land to individual Indians. 25 USC § 331. Allotments on reservations; irrigable and non-irrigable lands. Basic allotment provision of 1887 Act. Now repealed. 25 USC § 381. Irrigation lands; regulation of use of water “In cases where the use of water for irrigation is necessary to render the lands within any Indian reservation available for agricultural purposes, the Secretary of the Interior is authorized to prescribe such rules and regulations as he may deem necessary to secure a just and equal distribution thereof among the Indians residing upon any such reservations; ….” Case law.

Result of Allotment Acts Between 1887 and 1934, the Government pursued a policy of assimilating Indians into mainstream America by allotting (privatizing) the tribal land base to promote an agrarian lifestyle and enable the sale of Indian land to non-Indians.  More than 100,000 allotments were made under the 1887 General Allotment Act and other allotment acts throughout the western United States. Allottees hold real property rights to water appurtenant to allotments.

Result of Allotment Acts Allottee water rights are protected by the 5th Amendment to the U.S. Constitution. Allottee water rights are involved in adjudications and settlements of Indian reserved water rights on western reservations.   Individual allottees are usually unrepresented in general stream adjudications and tribal water settlement negotiations.

Categories of Allotments Trust allotments and restricted fee allotments owned by tribal members owned by non-member Indians repurchased by tribe Fee simple allotments owned by non-Indians Public domain trust allotments

Indian Allotment Water Rights Case Law Winters v. United States, 207 U.S. 564 (January 6, 1908) 1888 agreement creating the Ft. Belknap Reservation reserved by implication water necessary for irrigation. Conrad Investment Co. v. United States, 161 F. 829 (9th Cir. March 25, 1908) 1888 agreement creating the Blackfeet Reservation reserved an expansive “paramount right” to water as necessary for irrigation. allotments are mentioned.

Indian Allotment Water Rights Case Law Skeem v. United States, 273 F. 93 (9th Cir. 1921) Water was permanently reserved for the irrigation of allotments on the Ft. Hall Reservation based on interpretation of treaties and agreements.

Indian Allotment Water Rights Case Law United States v. Hibner, 27 F.2d 909 (D. Idaho 1928) Clarifies and extends Skeem and states allotment water law as we now know it. Indian owned allotments are entitled to water for lands “susceptible to irrigation” with 1869 priority based on Ft. Bridger Treaty. Expansive right not subject to abandonment under state law. Non-Indian purchaser acquires the title and right of the Indian allottee (quantity and priority), subject to state laws of appropriation and use.

Indian Allotment Water Rights Case Law United States v. Powers, 305 U.S. 527 (1939) (Crow Reservation) U. S. sought to enjoin diversions of water on Crow Reservation to serve non-Indian owned fee allotments above and outside of a federal irrigation project. Injunction denied. Based on 1868 treaty and Dawes Act, fee allotment owners outside of federal irrigation project have right to use an equal portion of tribal waters for irrigation.

Indian Allotment Water Rights Case Law Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981) (Walton II) allotment water right measured by irrigable acres and gets “ratable share” of reservation right. allotment water right priority is date of creation of reservation. trust allotment water right not subject to abandonment. non-Indian successor gets Indian priority, quantity being used, and right to appropriate more with reasonable diligence. Non-Indian successor subject to state law rule of abandonment.

Indian Allotment Water Rights Case Law United States v. Anderson, 736 F.2d 1358 (9th Cir. 1984) (adjudication of water rights in the Chamokane Basin, Spokane Reservation) Applies law same as Walton II. Congressional policy to assure Indian allottee full economic benefit of the allotment if sold. Indian priority date makes right “more valuable than the rights of competing water users, and therefore applies to the right acquired by a non-Indian purchaser.”

Indian Allotment Water Rights Case Law Colville Confederated Tribes v. Walton, 752 F.2d 397 (9th Cir. 1985) (Walton III) allocated specific water quantities from No Name Creek among Tribe, Indian trust allotments and non-Indian fee allotments. 666.4 AFY to Indian trust allotments. 350 AFY for tribal fishery. 120 AFY to non-Indian fee owner Walton.

Plenary Power and the Ft. Berthold Doctrine Congress exercises its so-called “plenary power” to enact Indian water settlements that extinguish marketable water rights appurtenant to Indian trust allotments.

Plenary Power and the Ft. Berthold Doctrine Three Affiliated Tribes of Ft. Berthold Reservation v. United States, 390 F.2d 686, 691 (Ct. Cl. 1968) “Where Congress makes a good faith effort to give the Indians the full value of the land and thus merely transmutes the property from land to money, there is no taking.” Does the right to apply for a tribal permit to use water on an allotment meet this standard?

The 1995 Solicitor’s Opinion “Entitlements to Water Under SAWRSA” Response to San Xavier challenge to 1982 Settlement Act. Issue: who owned water rights appurtenant to allotments – Tohono O’odham Nation or allottees? Tribal and allottee interests in water: Allottees have right to “just and equal distribution” of reservation water for irrigation; 25 U.S.C. §381. Allottee’s interest in irrigation water is “private property” (but not necessarily under the 5th Amendment). Tribes and Interior Secretary have regulatory authority over Indian use.

“Tribal Water Rights Settlement and Allottees”, January 19, 2001 Interior Solicitor’s Policy Guidance Memorandum 25 U.S.C. § 381 applies to settlement water for allotment irrigation. 2. Settlement may give tribe right to regulate use and allocation of settlement water. Tribe must enact water code governing use and allocation of settlement water and providing due process for allocations.

“Tribal Water Rights Settlement and Allottees”, January 19, 2001 Interior Solicitor’s Policy Guidance Memorandum Settlement water substitutes for allottee water rights and damages claims - U.S. as trustee waives claims by allottees. Only the U.S. as trustee and allottee landowners can waive claims. Numerosity of allottees may delay settlement [due process is inconvenient]. Only realistic course is for Congress to settle allottee claims by invoking Fort Berthold doctrine – substitute one form of trust asset for another as long as value is approximately equal.

Public Domain Allotments Allotments were authorized pursuant to Section 4 of the General Allotment Act: “Section 4 of the General Allotment Act ‘was designed to afford Indian settlers upon public lands the same privilege of entering such lands as white settlers….’” - 38 I.D. 553, 555. The 1995 Solicitor’s Opinion may not be applicable.

CONCLUSION Indian trust allotment landowners hold appurtenant property rights in water protected by the Fifth Amendment. Water rights appurtenant to allotments are marketable and have high value due to their early priority. Water settlements that expropriate Indian allottee water rights probably violate the Fifth Amendment requirements of due process, just compensation and public purpose.

CONCLUSION Such settlements rely on the “plenary power doctrine” and the Fort Berthold doctrine – Congress may substitute one form of Indian trust asset for another as long as value is approximately equal. Exercise of the “plenary power” and the Fort Berthold doctrine is exceptional race-based law and should no longer be acceptable. Allottees should be afforded counsel, should be named parties in adjudications, should be given due process, and should be represented in settlement negotiations.