Western Water Law, Prior Appropriation Doctrine explained
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Western Water Law is also known as the Prior Appropriation Doctrine. A common phrase used to describe the law or doctrine is “first in time, first in right.” In a case known as Winters, the United States Supreme Court held that Indian tribes had an inherent reserved right which placed them “first in time, first in right.” The priority date established for these types of rights is the date of the creation of the reservation. In a subsequent case called Adair, many northwest tribes, including the Salish-Kootenai received a priority date of time immemorial for instream flows for fisheries. Another well-known Indian water law case is called Walton. In Walton, the Court held that non-Indian successors to original Indian land allotments stood in the shoes of the original allottee and received a portion of the tribal reserved water right.
All of these cases are significant here on the Flathead Reservation. The irrigation project is split 50-50 between homestead land and allotted land. Allotted land is typically understood to have the priority date of the creation of the reservation. Homestead land is understood to have a priority date no earlier than the date of the homestead. Much of the allotted land has passed to non-Indian ownership. All of this creates a tremendous problem for water rights adjudication and administration here.
At a recent Flathead Joint Board of Control meeting, one of the new FJBC members minimized the difference between allotted and homestead land. He claimed that the date the water was actually appropriated was most important. Unfortunately for him, in Walton the Court disagreed. Walton, a non-Indian, bought three Indian allotments in 1948 from a non-tribal member Indian. The allotments included 32 acres of irrigated ground. Walton began irrigating more land, up to 104 acres. The Court ruled that he had a reserved right, the same as the original Indian allottee, which was July 2, 1872 on all of his water use on 104 acres despite the fact that he did not begin irrigating it until the 1950s.
These cases set up a potential problem here on the Flathead Reservation for Flathead Indian Irrigation Project priority dates to range from 1855 to 1910 or later. This means that those with an 1855 priority date (allottees and successors) would be entitled to receive all their water before anyone with a later date could receive any water.
During the FIIP Water Use Agreement and Compact negations, the CSKT made a generous offer to address this potential problem. Since the Walton reserved water right users are originally part of the CSKT reserved water right, the CSKT agreed to accept the entire irrigation project under that water right, also, guaranteeing that homestead lands would have the same priority date as allotted lands, and removing the conflict between the two. This also puts the FIIP on equal footing with all other tribal uses, except instream flows which have a time immemorial priority date. And under the Water Use Agreement, the CSKT have agreed to allow instream flows to be phased in as FIIP improvements are made.
Now the CSKT are being attacked by Water Use Agreement and Compact opponents as somehow taking water rights from them. On the contrary, the CSKT have done everything they could to ensure that all FIIP water users were treated equitably, both Indian and non-Indian, allotted land owners and homestead land owners. We should all be celebrating and supporting a compromise of this magnitude. The Water Use Agreement and Compact protect all existing uses, including a mechanism to provide extra duty water. They also preserve the Low Cost Block of Power for the Flathead River Pumping Plant and provide for millions of dollars of rehabilitation for the Flathead Indian Irrigation Project.
Failure of the Compact and Water Use Agreement will create a bleak future, with irrigator contending against irrigator for water. Please reject the arguments of the opponents. We have fought enough battles over water. We need to move forward toward a bright future secured by the Compact and Water Use Agreement.
(Editor’s Note: This column was also signed by Kerry Doney, Chairman, Jocko Valley Irrigation District; Paul Wadsworth, commissioner, Mission Irrigation District; Roger Christopher, commissioner, Jocko Valley Irrigation District.)
