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This Website is Dedicated to Alvin Alexander Cheyne January 10, 1921 - June 17, 2005 |
Opinion:
Water Rights of Non-Indian Purchasers of Klamath Indian Reservation
Lands
Memorandum
To:
Commissioner of Indian Affairs
From: Solicitor
Subject: Water rights of non-Indian purchasers
of Klamath Indian Reservation lands
A memorandum from Assistant Commissioner Utz dated
Mr. Stanley has stated, among other things, "that Oregon had become
a state [in 1859] and had title and control of the non-navigable waters
before the [Klamath] treaty [of 1864] was entered into and, therefore,
the United States had no rights which it could have granted to the
[Klamath] Indians." The Management Specialists have urgently
requested an opinion on this matter in order to give potential
non-Indian purchasers of land some assurance of rights to the use of
water on the land they purchase.
The proposition stated by Mr. Stanley is not well-founded. The basic
question of an assurance of a water right in purchasing Klamath Indian
Reservation lands already has been given a preliminary general answer by
the Solicitor. See Klamath Terminal Legislation, 62 I.D. 186,
201-202 (May 20, 1955). A further exhaustive analysis of this problem is
not required here nor will it be undertaken in the absence of a
presentation of a factual record. That earlier general answer of the
Solicitor in support of such rights accordingly will be adhered to by
this office. Even so, it may be helpful to the Management Specialists to
elaborate somewhat by reference to some of the controlling legal
propositions and principles, in view of the position taken by the State
Engineer. In fairness to Mr. Stanley, it may be noted that he did not
have the benefit of the decision in
Mr. Stanley's assertion that the
With respect to the Klamath Indians, it is stated in Klamath and
Modoc Tribes v. Maison, 130 F. Supp. 634. 635 (1956), that
these Indians had "owned or occupied" exclusively a vast
domain of land. They had exploited it in the manner of their culture,
which was primarily a hunting, trapping, fishing and gathering culture.
As already stated, the power to extinguish or recognize such Indian
possessory rights and obtain settlement of the various Indian groups on
certain lands reserved for that purpose has been recognized as being in
the Federal Government since the beginning of our constitutional
history. The Klamath Indian treaty of 1864 exemplifies an exercise of
that power.
In connevtion with the congressional reservation of the right of
"the primary disposal of the soil" in Oregon, and insofar as
rights to the use of water are concerned, it is pertinent to note at
this point that Oregon did not legislatively reject its early riparian
doctrine and assert public ownership of the water resources in that
State until 1909. Consequently, prior to the Act of July 26, 1866, 14
Stat. 253, which affirmed appropriative rights acquired under local
custom or practice, only minor riparian uses could have vested under
existing Oregon riparian law. Thereafter, waters flowing from or on
Federal public domain were made generally available by Congress for
appropriation, subject to existing rights. We wish to emphasize that
they were available by reason of this 1866 act, the Act of July 9, 1870,
16 Stat. 218, the Desert Land Act of March 3, 1877, 19 Stat. 377, and
the related statutory enactments of Congress that followed. In other
words, many of the early water rights in
It is not to be inferred from what has been said that Congress intended
to impose on the State of Oregon a particular policy relating to water
rights, California Oregon Power Co. v. Beaver Portland Cement
Co., 295 U.S. 142, 163-164 (1935), much less thrust upon her an
obligation to assert public ownership of water resources which she
finally did in 1909.
Oregon, in finally legislating itself into a position in line with
Federal disposal policies by enacting Chapter 221 and the Water Code of
1909, supra, asserted public ownership of all sources of water
supply but with certain reservations protecting vested riparian rights
to the extent of actual application of water to beneficial use prior to
passage of the act, or within a reasonable time thereafter, and this
legislative change was judicially sustained. In re
To the extent that there was an implied reservation of rights to use
water on the Klamath Indian Reservation under the Winters doctrine, it
is assumed on the basis of U.S. v. Ahtanum Irrigation Dist., 236
F. 2d 321 (1956), cert. den. 352 U.S. 988 (1957) that the courts in the
future will have little difficulty in finding a basis for protecting
water rights. This applies also to derivative rights such as were
sustained in
This office, accordingly, will support the rights of Indian landowners
and third party purchasers of Klamath lands having either primary water
rights under the Winters doctrine or obtaining derivative rights
conveyable by deed or patent and enforceable under the Powers doctrine.
Further, it will support the right of a non-Indian purchaser of Klamath
Indian Reservation lands, having such derivative rights under the Powers
doctrine to have his priority under such rights related back to the
establishment of that reservation in 1864.
In this connection, however, the attention of purchasers probably should
be directed to certain possibilities suggested in
"This question is not free of difficulty, for it presents for
consideration what is the status of the water rights of those who have
acquired by purchase their lands from the Indians whose rights were
reserved unto them, and who be came vested with all the rights incident
to ownership of both the lands and water under the treaties, with a
priority of February 16, 1869. The right of the Indians to occupy, use,
and sell both their lands and water is now recognized, as this view is
sustained in the case of Skeem v. U.S., supra, and,
such being the case, a purchaser of such land and water right acquires,
as under other sales, the title and rights held by the Indians, and that
there should be awarded to such purchaser the same character of water
right with equal priority as those of the Indians. The status of the
water right after it has passed to others by the Indians seems to be
somewhat different from while such right is retained by the Indians,
because the principle invoked by the courts for the protection of the
Indian as long as he retains title to his lands does not prevail and
apply to the white man, and the reason for so holding is that there was
reserved unto the Indians the absolute right to own and use in their own
way the water for their lands, while the white man, as soon as he
becomes the owner of the Indian lands, is subject to those general rules
of law governing the appropriation and use of the public waters of the
state, and would, as grantee of the Indian allotments, be entitled to a
water right for the actual 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, which would give to
him, under the doctrine of relation, the same priority as owned by the
Indians; otherwise, the application of any other rule would permit such
grantee for an indefinite period to reclaim the balance of his land and
withhold the application of the water to a beneficial use, which is
against the policy recognized in the development of arid lands."
The lower court in
"In that case the court granted to the Indian land a water right
with priority as of the date of the ratification of the Fort Bridger
Treaty. This rule applied to the defendants in this case seems to be
fair and equitable and affords protection both to Indians and white men,
furthermore the facts there are very much like the facts in the instant
case and were governed by like treaty provisions. From a perusal of the
transcript of the testimony it seems to the court that these answering
defendants upon receiving title from the Indian were reasonably diligent
in placing under irrigation such portions of the land granted to them as
were susceptible of irrigation. * *
* "
It
may be of interest to note here that conveyances in the Powers case
involved Indian trust lands sold by the
This suggestion that a purchaser should exercise diligence in developing
any unused water right is in line with provisions of section 14 (a) of
the Klamath Termination of Federal Supervision Act, 68 Stat. 722, which
is simply designed to protect the tribe and its remaining members for a
period of 15 years against loss by abandonment of water rights by nonuse
under Oregon law. It is also consonant with Article X of the Klamath
River Basin Compact, 71 Stat. 505, especially subdivision B, which
provides:
"Lands within the Klamath Indian Reservation which are brought
under irrigation after the effective date of this compact, whether
before or after Section 14 of said Act of August 13, 1954, becomes fully
operative, shall be taken into account in determining whether the
200,000 acre limitation provided in paragraph 1 of subdivision C of
Article III has been reached."
Accordingly,
if purchasers are to avoid all legal doubts, it appears to me that
undeveloped rights should be perfected without undue delay.
ELMER F. BENNETT,
Solicitor.
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Source:
http://thorpe.ou.edu/sol_opinions/p1826-1850.htm