## Facts

- The Colville Reservation was established by executive order in 1872 to protect the Colville Indians’ interests, including agricultural use of the land.
- Reservation lands were later allotted to individual Indians under federal allotment policy; a set of allotments in the No Name Creek watershed was created in 1917.
- No Name Creek (surface and groundwater) lies wholly within the reservation, and by 1920 Indian allottees were diverting creek water to irrigate allotted lands.
- Some allotments were sold to non-Indians in the 1920s; William Boyd Walton, a non-Indian, later acquired several allotments in fee (including three acquired in 1948), at which time some acreage was already irrigated using creek diversions.
- Walton sought to expand irrigation and obtained a state permit to divert additional No Name Creek water for more irrigated acreage.
- The Tribe sued to enjoin Walton’s water use; the United States brought a related action as trustee for the Tribe and allottees; the cases were consolidated.
- The State of Washington intervened, asserting authority to allocate and regulate water rights on reservation lands, including fee lands, under state water law.
- The district court recognized federal reserved water rights for the reservation and addressed the extent of rights held by the Tribe, allottees, Walton, and the State; multiple parties appealed.

## Issues

1. Whether the creation of the Colville Reservation by executive order carried an implied federal reserved water right sufficient to fulfill the reservation’s purposes under the Winters doctrine.
2. Whether Indian allottees hold a ratable share of the reservation’s reserved right appurtenant to their allotments, and whether that share may pass to non-Indian successors in fee such as Walton.
3. Whether Walton could assert state-law appropriative rights (including rights based on a state permit) to expand irrigation in a manner that affects federal reserved rights.
4. Whether Washington may grant or regulate water rights within the reservation when doing so would impair federal reserved rights, and whether reserved rights can be lost through nonuse under state forfeiture/abandonment concepts.

## Decision

- The Ninth Circuit held that the United States reserved sufficient water when it created the Colville Reservation to accomplish the reservation’s purposes, measured by the amount needed to irrigate practicably irrigable lands.
- The court held that, upon allotment, Indian allottees obtained a ratable share of the reservation’s reserved right appurtenant to their allotments.
- The court held that the allottee’s appurtenant reserved water right can be conveyed with the land; non-Indian successors such as Walton take that ratable share and may use it, but only within the limits of the reserved right tied to practicably irrigable acreage and development with reasonable diligence.
- The court rejected broader reliance on state water law where it would conflict with or diminish federal reserved rights; Walton’s state-permitted expansion could not override tribal or allottee reserved rights.
- The court held that Washington lacks authority to grant or regulate water rights in derogation of federal reserved rights within the reservation; state law applies only to the extent it does not impair federal rights.
- The court held that federal reserved rights, including the allottees’ ratable share, are not lost by nonuse and are not subject to state-law forfeiture or abandonment doctrines.
- The court affirmed in part, reversed in part, and remanded for further proceedings consistent with these determinations.

## Legal Principles

- Federal reserved water rights arise by implication when the United States sets aside land for an Indian reservation, including reservations created by executive order, and reserve the water necessary to fulfill the reservation’s purposes.
- The quantity of an irrigation-based reserved right is measured by practicably irrigable acreage rather than by the extent of actual historical diversion alone.
- When reservation lands are allotted, each allotment carries an appurtenant ratable share of the reservation’s reserved right; the reserved right continues and is not terminated by allotment.
- Appurtenant reserved water rights run with allotted land and may pass to non-Indian purchasers; successors take no greater right than the allottee’s ratable share.
- State-law water rights and state permitting are preempted to the extent they conflict with or impair federal reserved rights on a reservation.
- Reserved rights are not subject to loss through nonuse under state abandonment or forfeiture rules, though use by a successor remains bounded by the scope of the reserved right and reasonable diligence in development.

## Conclusion

The Ninth Circuit applied the Winters doctrine to an executive-order reservation, held that reserved water sufficient for practicably irrigable lands existed reservation-wide, ruled that allottees’ ratable shares are appurtenant and transferable to non-Indian successors, and limited state permitting and regulation that would impair federal reserved rights while rejecting state-law forfeiture of those rights by nonuse.


Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981)