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Washington Law Review

Article Title

Water Rights on Indian Reservations—Transferability of Indian Water Rights—State Administration of Non-Indian Water Rights Within the Reservation—Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir)., cert. denied, 454 U.S. 1092 (1981).

Authors

Matthew L. Fick

Abstract

No Name Creek is a small spring-fed stream lying entirely within the Colville Indian Reservation in north-central Washington. The creek basin is divided into seven irrigable parcels, all originally allotted to individual Indians. Four allotments are held in trust for the Colville Confederated Tribes (Tribe). Three are owned by the Waltons, non-Indians who operate a dairy farm on reservation land purchased from the successor of an Indian allottee. In 1970 the Tribe sued to enjoin the Waltons from using any water from No Name Creek and its associated groundwater. The Tribe asserted that it had a right to all the water to irrigate its 229 irritable acres and to support spawning of Lahontan cutthroat trout. The Waltons responded that they had succeeded to the reserved water right held by their Indian predecessors. They also maintained that they had a valid appropriative water right under state law. The Court of Appeals for the Ninth Circuit reversed on both issues.The court held, first, that the Waltons could succeed to the entire reserved right held by their predecessor. Second, the court held that the federal government had preempted state regulatory authority over the use of water from No Name Creek when it created the Colville Indian Reservation, and that therefore the state permits issued to the Waltons were invalid. This Note examines both major issues in Walton and concludes that the court of appeals reached the wrong result in each. First, the exercise by first use of reserved rights disrupts the rights of appropriators who have put water to use after creation of the reservation. Because no policy justifies such disruption by non-Indians, the exercise of unused reserved rights should be limited to Indians. Second, in the absence of express federal preemption, the state permit system should be used to administer non-reserved water rights. Properly administered, the state regulatory system would protect the rights of all users and would not infringe on tribal interests.

First Page

89

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