The opinion of the court was delivered by: NEILL
In these consolidated cases plaintiffs seek declaratory and injunctive relief relating to the rights to waters of a very small waterway located entirely within the exterior boundaries of the Colville Indian Reservation in north central Washington. As the result of this extended litigation this formerly nameless waterway has acquired the appellation "No Name Creek". Because the surface water of No Name Creek has a hydraulic relationship with the underlying aquifer, these actions include rights to both surface and ground waters of the creek basin.
The Colville Confederated Tribes (Tribe) brought suit in 1970 to enjoin defendants Walton, who are not Indians, from using No Name Creek waters, claiming that the tribal reserved water rights were superior to Waltons' rights and that there was insufficient water to satisfy both the Tribe's and Waltons' needs. The State of Washington intervened asserting its authority to grant water permits on reservation lands. The United States brought suit against Waltons and the State of Washington, alleging identical issues of reserved water rights. The actions have been consolidated.
This Court has jurisdiction in Cause No. 3421 under 28 U.S.C. § 1362 and jurisdiction in Cause No. 3831 under 28 U.S.C. § 1345. In these actions the Court must determine first, the relative water rights of the Tribe and defendants Walton, and second, the relative authority of the Tribe, the United States, and the State of Washington to regulate, allocate and control the subject water.
No Name Creek and its basin lie entirely within the Colville Indian Reservation. The Reservation was established by executive order on July 2, 1872, as a home for various bands of Indians now known as the Colville Confederated Tribes. It is located in a semi-arid and mountainous region in north central Washington. No Name Creek, which originates on Allotment No. 892 north of the Walton property, is spring fed, flows southerly approximately three miles and empties into Omak Lake. The lake is composed of saline water, unsuitable for irrigation purposes.
Water from the No Name Creek basin presently serves seven parcels of land, all at one time allotted to individual Indians. The only lands within the basin presently held by non-Indians are the three allotments owned in fee by Waltons, each of which borders No Name Creek. The other four allotments in the basin are either held in trust by the United States for the heirs of the allottees and leased to the Tribe or are held in trust directly for the benefit of the Tribe. Historically, the two allotments to the north of Waltons were irrigated with surface waters from Omak Creek located on the northernmost allotment, while the two allotments south of Waltons were irrigated with waters diverted from No Name Creek.
Defendants Walton claim water rights on two theories. First, they claim rights as successors to Indian allottees. Second, they claim appropriative rights perfected under state law. Using water diverted from No Name Creek and water pumped from an irrigation well drilled in the 1970's, Waltons are presently irrigating 105 acres.
Waltons' first claim is based on a tracing of the title to their land through mesne conveyances back to the original Indian allottees. The allotments now owned by the Waltons passed from Indian ownership in 1942. The former Indian allottees had not irrigated these lands. In 1946, this land was again sold, and although the purchaser was Indian, he was not a member of the Colville Tribes. When Walton bought the property in 1948, approximately 32 acres were under irrigation. Based upon the right to use of water by the Indian allottees, defendants Walton claim to have succeeded to a right to irrigate all of their irrigable acreage or, alternatively, to a right to irrigate a minimum of the 32 acres which were under irrigation at the time of purchase.
Waltons' claim to an appropriative water right is based on a state certificate. Immediately after purchasing the land in 1948, Walton applied to the State for a permit to divert 3 cu. ft. per second from the creek to irrigate 75 acres. Pursuant to this application the state in 1950 issued Walton a certificate of water right to irrigate 65 acres by diverting 1 cu. ft. per second. This certificate was granted "subject to existing rights".
The Tribe bases its claim to water on the doctrine of reserved water rights. It asserts the right to irrigate the 228 irrigable acres contained in the four Indian-held allotments within the No Name Creek Basin. In addition, the Tribe claims the right to sufficient water to support spawning grounds in the creek for Lahontan cutthroat trout.
Presently the Tribe is irrigating 157 of the 228 Indian-held irrigable acres in the basin. Some of these acres historically were irrigated from the surface water of Omak Creek and No Name Creek. In 1975 the Tribe initiated an extensive irrigation project in the basin. Wells were drilled on the northern allotments to provide irrigation waters for the northern acres, and some well water was pumped into No Name Creek to serve the needs of the two southern allotments. The crops grown on these allotments are used to support the Paschal Sherman Indian School.
The Tribe and the United States, as trustee, seek to enjoin Waltons' interference with tribal use of No Name Creek Basin waters. They also seek a declaration that the State of Washington has no jurisdiction to issue water permits within the boundaries of the Reservation and that the permits heretofore issued to Waltons are null and void.
This litigation requires a determination of four complex issues of Indian water rights: 1) what effect the General Allotment Act has on Indians' reserved water rights; 2) whether a non-Indian grantee of an Indian allotment may succeed to his Indian grantor's reserved rights; 3) the amount of water available to each party in this action; and 4) whether a state may issue water permits to non-Indian landowners within the boundaries of an Indian reservation.
EFFECT OF THE GENERAL ALLOTMENT ACT ON RESERVED WATER RIGHTS
Waltons claim a water right based on the prior status of their property as Indian allotments. They assert that the General Allotment Act, 25 U.S.C. § 331 Et seq., passed to the individual Indian allottees a portion of the reservation's reserved water, which became appurtenant to the allotted land and was conveyed when the land was sold. An analysis of the effect of the General Allotment Act on the allottee's water rights requires an understanding of the origin of the reserved water rights doctrine, the scope of that doctrine, and the purpose of the General Allotment Act.
In Winters v. United States, 207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. 340 (1908), the Supreme Court established the doctrine of implied reservation of water. The Court determined that when the United States set aside lands as Indian reservations, it intended to provide a suitable homeland for the Indians so they could change from their nomadic ways to "become a pastoral and civilized people." Id. at 576, 28 S. Ct. at 211. As recently noted by the Supreme Court, "It can be said without overstatement that when the Indians were put on these reservations they were not considered to be located in the most desirable area of the Nation." Arizona v. California, 373 U.S. 546, 598, 83 S. Ct. 1468, 1497, 10 L. Ed. 2d 542 (1963). The creators of the western reservations were aware of the arid nature of the region, and of the fact that water is "essential to the life of the Indian people and to the animals they hunted and the crops they raised." Id. at 599, 83 S. Ct. at 1497. When Congress placed the Indians on reservations, it took from them "the means of continuing their old habits" and therefore must have intended to give them "the power to change to new ones." Winters, supra, 207 U.S. at 577, 28 S. Ct. at 212. Because the reservation lands were arid and were "practically valueless" without irrigation, the Winters Court held that the Indians were entitled to an adequate supply of water.
As defined in Cappaert v. United States, 426 U.S. 128, 138, 96 S. Ct. 2062, 2069, 48 L. Ed. 2d 523 (1976), the Winters reserved water rights doctrine provides that upon the establishment of any federal reservation the United States "reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation." The Winters reserved water right "vests on the date of the reservation and is superior to the rights of future appropriators." Id. Winters rights apply to reservations created by executive order, as well as to those created by treaty or act of Congress. Arizona v. California, supra, 373 U.S. at 598, 83 S. Ct. 1486. They extend to ground water as well as surface water. Cappaert, supra, 426 U.S. at 142-143, 96 S. Ct. 2062. Where the purpose of establishing the reservation was to turn the Indians into an agrarian society, as is the case with the Colville Reservation, the amount of water impliedly reserved is that which would satisfy future as well as present needs, measured in terms of enough water to irrigate "all the practicably irrigable acreage" on the reservation. Arizona v. California, supra, 373 U.S. at 600, 83 S. Ct. 1468. The reserved rights are open-ended and do not depend on actual use to be maintained. Water is therefore available whenever needed to fulfill the purposes of the reservation. The reserved amount of water must be made available despite inequities to the non-reserved users. Cappaert, supra, 426 U.S. at 138, 96 S. Ct. 2062. Therefore, reserved water rights are not lost by laches, estoppel or adverse possession. See United States v. Ahtanum Irr. Dist., 236 F.2d 321 (9th Cir. 1956), Cert. denied, 352 U.S. 988, 77 S. Ct. 386, 1 L. Ed. 2d 367 (1957), Rev'd., 330 F.2d 897 (9th Cir.), Rehearing denied, 338 F.2d 307 (9th Cir. 1964), Cert. denied, 381 U.S. 924, 85 S. Ct. 1558, 14 L. Ed. 2d 683 (1965).
The General Allotment Act of 1887, (25 U.S.C. § 331 Et seq.) (the Dawes Act), was designed to help reservation Indians assimilate into the dominate culture by authorizing the division of communally-held tribal lands into specific tracts for each of the tribe's members. Unallotted lands within the reservations would then be opened to non-Indians with the apparent intent to promote interaction between the races and to encourage Indians to adopt white ways. Mattz v. Arnett, 412 U.S. 481, 496, 93 S. Ct. 2245, 37 L. Ed. 2d 92 (1973). It was hoped that the Indians would learn to farm their property from such association with white neighbors. Since the Indians were considered unsophisticated and the whites were known to desire increased land holdings, the allotted lands were to be held in trust by the United States for the allottees for twenty-five years, (25 U.S.C. § 348) after which a fee patent could issue to the Indians. Id. Section 7 of the Dawes Act (25 U.S.C. § 381) provides that where water is necessary for irrigation, the Secretary of Interior is authorized to see that the available water is divided in a just and equal manner among the Indians residing on the reservation.
This Court concludes, based upon a reading of the relevant cases, that the Dawes Act did not deprive the allottee of his share of the reservation's reserved water. Reserved rights belong to each individual Indian. United States v. Winans, 198 U.S. 371, 381, 25 S. Ct. 662, 49 L. Ed. 1089 (1905). Under the doctrine, tribal members own the reserved water from the time of the creation of the reservation; at the time a tribal member acquires an allotment, his reserved rights become appurtenant to his land. United States v. Preston, 352 F.2d 352, 358 (9th Cir. 1965). Thus, as stated in United States v. Powers, 305 U.S. 527, 532, 59 S. Ct. 344, 83 L. Ed. 330 (1939), when allotments were made, a portion of the waters within the reservation which had been reserved for the equal benefit of the tribal members passed to the allottees.
ALIENABILITY OF RESERVED WATER RIGHTS
As the discussion above indicates, the Indian allottee owns, as appurtenant to his allotment, his proportionate share of the reservation's reserved water. Preston, supra, at 358. He retains these rights after he is issued the fee patent to his allotment. Powers, supra, at 532, 59 S. Ct. 344. The settled issued of what the Indian allottee owns is distinct, however, from the unresolved issue of what rights the allottee may alienate to a non-Indian.
Although several opinions arguably indicate that reserved water rights appurtenant to an allotment may be conveyed to a non-Indian grantee, this Court finds no clear and binding precedent on the issue.
The Ninth Circuit has held that reserved water rights remain appurtenant to the allotted land when it remains in Indian ownership but is leased to a non- Indian. Skeem v. United States, 273 F. 93 (9th Cir. 1921). The Court was not faced in that action, however, with the issue of what water rights may be sold.
In another early decision, the Idaho Federal District Court held that the non-Indian purchaser of an Indian allotment located outside the reservation boundary acquired a water right to irrigate the acreage that was under irrigation at the time title passed from the Indians, and such increased acreage as he might with reasonable diligence place under irrigation. United States v. Hibner, 27 F.2d 909 (D. Idaho 1928). The priority date was found to be the same as that owned by the Indian allottees the date of the establishment of the reservation. Id. at 912. Unlike the Indian, however, whose rights were open-ended, and independent of actual use of the water, the purchaser took with a Winters priority date only that amount of water used by the Indian predecessors plus that which he could put to use within a reasonable time. The Court's conclusion was not appealed.
Almost two decades after Hibner, the Supreme Court faced the same Indian water rights issues, but avoided resolving those issues by disposing of the case on a procedural ground. In United States v. Powers, 305 U.S. 527, 529, 59 S. Ct. 344, 83 L. Ed. 330 (1939), the United States sought to enjoin the defendants, non-Indian successors to allottees, from diverting water from above an irrigation project on the reservation. The Government claimed that owners of lands which were not part of the project were not entitled to divert water to the detriment of the project. Although this claim was dismissed by the trial court, it determined that allottees passed to their grantees whatever water rights they possessed. The court then proceeded to quantify those rights. The Ninth Circuit affirmed the dismissal of the United States' claim, but held that the trial court lacked jurisdiction to quantify defendants' rights because parties indispensible to the action were not before the court. 94 F.2d 783, 786 (9th Cir. 1938). Included among the indispensible parties not before the court were Indian allottees living above the project. The Supreme Court affirmed. Neither the Ninth Circuit nor the Supreme Court determined what rights, if any, the parties had to the water in question. Id. at 786; 305 U.S. at 533, 59 S. Ct. 344. In response to the Government argument that allottees have no ...