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Water Rights Cases
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1103443
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Water Rights Cases
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Bradley H. Patterson Files (Ford Administration)
Bradley Patterson's Native American Programs Files
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Indians of North America
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The original documents are located in Box 6, folder "Water Rights Cases" of the Bradley
H. Patterson Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Capheard- Pupfish)
THE WHITE HOUSE
WASHINGTON
onlies to ground water water
Rex Winter doctor
us well as surface
FORD LIBRANY is
Digitized from Box 6 of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
Walton
Farmer has fee
patient on a form
have Wineters doctrive
allatreot. Day he
reguts toud?
water Verda for
water Calucill as regats. Rec Sage be Veeder less enclasition
his Days they ave appoint all
In Court
FORD LIBRARY is
THE WHITE HOUSE
WASHINGTON
Water Cades
Pending decision.
question of tribal
Hung up on
our non-
Indians
FORD Jennary
EXECUTIVE OFFICE OF THE PRESIDENT
UNITED
OFFICE OF MANAGEMENT AND BUDGET
STATES
WASHINGTON, D.C. 20503
SEP 28 1976
MEMORANDUM FOR THE PRESIDENT
Subject: Enrolled Bill H.R. 589 - Relief of the Santa
Ynez Water Conservation District
Sponsor - Rep. Lagomarsino (R) California
Last Day for Action
October 8, 1976 - Friday
Purpose
Authorizes the Secretary of the Interior to relieve the
Santa Ynez River Water Conservation District of repayment
of a reclamation project loan to the extent of $1,120
annually.
Agency Recommendations
Office of Management and Budget
Approval
FORD LIBRA
Department of the Interior
Approval
Discussion
In 1960, the Santa Ynez River Water Conservation District
received a Small Reclamation Projects loan from the Depart-
ment of the Interior in the amount of $3,800,000 to con-
struct a water distribution system. The District repays
this loan by means of an ad valorem tax levied against
lands within its boundaries.
2
The Santa Ynez Indian Reservation is located within the
boundaries of the 10,000-acre Santa Ynez River Water
Conservation District. Although the 88-acre Indian
reservation constructed its own water distribution system
in 1970, the District water distribution system supplies
all of the water used by the Indian reservation distri-
bution system. Under this arrangement, the Santa Ynez
Indians make the same payment per unit of water as do
other users within the District, including maintenance
and operation charges.
However, since the Indian reservation is Federal land,
the District's ad valorem tax cannot be levied against
these lands, and accordingly, non-Indian landowners are
subsidizing part of the cost of the water distribution
system that provides water to the Indian reservation.
The Indian reservation's pro-rata share of the Small
Reclamation Projects loan is about $34,000, or $1,120
annually over the remaining 30-year repayment period.
H.R. 589 would authorize the Secretary of the Interior
to amend the repayment contract with the Santa Ynez River
Water Conservation District to reduce by $1,120 annually
the amount due the United States. The enrolled bill
would make the reduction effective on January 1 of the
year following enactment, and it would remain in effect
SO long as the Indian reservation is in Federal ownership.
In reporting to the Congress, Interior opposed enactment
of H.R. 589 on the grounds that the issue of payment by
the Indians for their share of the District's water
distribution system was a matter between the District
and the Indians. The Department further noted that the
District's original loan agreement with the United States
contains no stipulations or reservations concerning pro-
spective water service to the Indians.
However, in its attached enrolled bill letter, Interior
takes a different view, and recommends approval based
on the following arguments:
"The Bureau of Reclamation and the Bureau of
Indian Affairs have both expressed the view
FORD
that there are strong equitable reasons for
LIBRARY
3
support of the bill. Because of the need for
water by the Indian Band, the District agreed
to provide the water to the reservation and
to assume the responsibility for operation
and maintenance of the lines on Federal land
after their construction. Because of the
economic status of the Band, the water rate
for the Indians did not include a surcharge
in lieu of taxes. This necessary conclusion,
together with the tax exempt status of the
reservation land, created an inequity. The
Federal Government utilizes a portion of the
District's water distribution system which
is being entirely paid for by its non-govern-
mental neighbors by way of tax assessments."
****
"The cost of the bill is minimal. In light
of the equities of this case and the lack of
other specific authority, we favor approval
of H.R. 589 to authorize the Secretary to
provide the needed relief."
Although this Office continues to believe that Interior's
initial position held considerable merit, on balance, we
concur in the Department's recommendation for approval.
We take this position in light of the bill's minimal cost
to the Federal Government and because the circumstances
in this case appear to be unique with little danger of
establishing a precedent that could be repeated in the
future.
Jan Director T. L.by Lynn
Enclosures
FORD
LIBRARY
OF
United States Department of the Interior
OFFICE OF THE SECRETARY
OF
WASHINGTON, D.C. 20240
March
SEP 27 1976
Dear Mr. Lynn:
This is in response to your request for the views of the Department
concerning enrolled bill H.R. 589, "To authorize the Secretary of
the Interior to provide relief to the Santa Ynez River Water
Conservation District due to delivery of water to the Santa Ynez
Indian Reservation lands."
We recommend that the President approve H.R. 589.
H.R. 589 would allow the Secretary to relieve the Santa Ynez River
Water Conservation District of repayment of a small reclamation
project loan, to the extent of $1120 per year. In 1960 the District
entered into a contract with the United States to repay a Small
Reclamation Projects loan of about $3,800,000, which was used to
construct a distribution system. The distribution system was
completed in 1965. The bill would compensate the District for
repayment of the portion of the distribution system attributable
to the Santa Ynez Indian Reservation. The District usually obtains
funds for the loan by the ordinary means of tax assessment, but
because the lands involved are Federally owned it cannot assess
the Indian reservation. The loan was originally for a term of 40
years, and has 30 years left to run.
The Santa Ynez Indian Reservation is located within the boundaries
of the 10,000 acre Santa Ynez River Water Conservation District.
There are some 15 Indian families living on the 88-acre reservation.
The District is a member unit of the Santa Barbara County Water
Agency, the contracting entity on the Cachuma Project. The project
is located near Goleta in southern Santa Barbara County, California.
The District is also paying the United States for water supplied
from the Cachuma project.
The District is providing water for domestic use by the Indians
through a part of the water distribution system constructed with the
loan funds. The Indian Health Service, a part of the Department of
Health, Education, and Welfare, installed a distribution system within
the reservation boundaries about five years ago.
AMERICAN REVOLUTION INCENTENNAL
1776-1976
The Santa Ynez Indians have made and will continue to make payments
to the District for water delivered. This charge is to compensate
the District for maintenance and operation costs, and for the
District's payments to the United States for water. However, be-
cause the annual tax assessment made against other District lands
is not possible against the reservation lands, no equitable adjust-
ment can be made to the District for the water distribution system
without specific legislation.
The cost of the District's distribution system amounts to approximately
$382 per acre over the balance of the repayment period which would
be equal to about $34,000 for the 88 acres of Indian land. This is
slightly less than one percent of the loan and is the approximate
amount the District would be credited under the proposed legislation.
The Bureau of Reclamation and the Bureau of Indian Affairs have both
expressed the view that there are strong equitable reasons for support
of the bill. Because of the need for water by the Indian Band, the
District agreed to provide the water to the reservation and to assume
the responsibility for operation and maintenance of the lines on Federal
land after their construction. Because of the economic status of the
Band, the water rate for the Indians did not include a surcharge in
licu of taxes. This necessary conclusion, together with the tax exempt
status of the reservation land, created an inequity. The Federal
Government utilizes a portion of the District's water distribution
system which is being entirely paid for by its non-governmental
neighbors by way of tax assessments.
The Leavitt Act (25 U.S.C. 386a), which authorizes and directs the
Secretary of the Interior to adjust or eliminate reimbursable charges
of the Government of the United States existing as debts against
individual Indians or tribes of Indians for costs in connection with
irrigation systems constructed for the benefit of Indians, is not
specifically applicable in this case since the debt involved in this
legislation was not specifically incurred by either the tribe or the
individual Indian. However, the rationale of the Leavitt Act could
be reasonably applied to this case.
2
The cost of the bill is minimal. In light of the equities of this
case and the lack of other specific authority, we favor approval
of H.R. 589 to authorize the Secretary to provide the needed relief.
Sincerely yours,
Assistant Secretary of the Interior
Honorable James T. Lynn
Director, Office of
Management and Budget
Washington, D. C.
FORD
LIBR
3
THE WHITE HOUSE
WASHINGTON
October 6
Bill -
Would like your OK
before I mail this.
Bad
ok-
/ FORD LIBRARY
CENTRAL FILES
October 6, 1976
Dear Mr. Snyder:
The August - September Newsletter of the Friends Committee
on National Legislation carried 8 special box captioned "American
Indians." It stated that the Ford Administration has opposed enact-
ment of the Indian Health Care Improvement Act and "opposed efforts
to protect Indian land and water resources."
The President, after personal review, decided to sign the
Indian Health Care Improvement Act, and I am forwarding a copy
of his Signing Statement, along with our own thanks for the support
and interest in this legislation by the Friends.
The reference to opposing efforts to protect Indian land and
water resources is, however, troublesome to me because it does
net reflect the facts and thus the fairness which otherwise charac-
terises the activities of the Friends.
I would very much approciate it if the Newslatter would afford
me the opportunity to correct this unfair statement and, for that
purpose, I enclose here a brief summary of the actions which the
Ford Administration and its predecessors have taken to stand up
for the land and water rights of American Indian people.
FORD
Sincerely,
Bradley H. Patterson, Jr.
Mr. Edward F. Sayder
Executive Secretary
Friends Committee on National Legislation
245 Second Street, N. E.
Mr. Wm. J. Barbody, Jr.
Washington, D. C. 20002
BCC: Mr. Greg Austin, Interior
Mr. Pet er Taft, Justice
Mr. Morris Thompson, BIA
Attachment
Mrs. Bobbie Kilberg
BHP, Jr. /vhs
PROTECTING INDIAN LAND AND WATER RIGHTS
The President in 1970 proposed, and his staff lobbied hard and successfully,
to have Congress restere the sacred Blue Lake lands to the Tacs Pueble. The
President signed this bill in December of 1970.
The White House worked for two years to arrange for the return to the Yakima
Tribe of 21, 000 acres of land improperly taken from them by a Presidential
mistake in 1906. The land was returned in 1972.
The White House strongly supported the Menominee Resteration Bill as a leading
example of the President's rejection of the terminationist philosophy of the "50s.
The bill was signed and is being implemented,
The White House itself designed, proposed and lobbied hard for the version of
the Alaska Native Claims Act which passed and which now guarantees Alaskan
natives 40, 000, acres of land and a billion dollars in the 50th State.
The White House intervened to make sure that the government, as trustee, effectively
supported Indian treaty rights in the fishing case in the State of Washington, The
resulting Boldt decision is a milestone of protection for these rights.
The White House made sure that the Interior and Justice Departments strongly
supported the Paintes in the famed Pyramid Lake case, They did and the brief filed
in the Supreme Court is a classic statement for Indian water rights.
The White Heuse intervened with the Justice Department to ensure that whenever
there is a court case where Interier wants the Indian trust rights spoken for,
this will be done, even if the Federal brief is itself "split." The Ford White
House reaffirms this arrangement and reaffirms its six-year-old support for
the creation by Congress of an Indian Trust Counsel Authority which will always
defend Indian natural resources rights wherever they are challenged.
The Stevens decision protects Indian land from improper taxation; the White House
intervened to ensure that the Indian trust rights were reflected in the Federal'
brief in court.
Besides signing the Indian Self-Determination Act in 1975 and the Indian Health
Care Improvement Act in 1976, President Ford told an assemblage of Indian
leaders from all over the nation on July 16, 1976:
"Many Indian reservations contain valuable natural resources. There
must be the proper treatment of these resources with respect for nature,
which is a traditional Indian value. My Attorney General has established
an Indian resources section whose sole responsibility is litigation on
behalf of Indian tribes to pretect your natural resources and your juris-
dictional rights."
Semetimes there are cantroversies as to precisely what the Indian treaty and
trust rights are; litigation is often necessary to determine them. President Ford
will continue to honor and protect Indian treaty and trust rights, and the record
backs this up.
October 6, 1976
Dear Mr. Snyder:
The August - September Newsletter of the Friends Committee
on National Legislation carried a special box captioned "American
Indians." It stated that the Ford Administration has opposed enact-
ment of the Indian Health Care Improvement Act and "opposed efforts
to protect Indian land and water resources."
The President, after personal review, decided to sign the
Indian Health Care Improvement Act, and I am forwarding a copy
of his Signing Statement, along with our own thanks for the support
and interest in this legislation by the Friends,
The reference to opposing efforts to protect Indian land and
water resources is, however, troublesome to me because it does
not reflect the facts and thus the fairness which otherwise charac-
terises the activities of the Friends.
I would very much appreciate it if the Newsletter would afford
me the opportunity to correct this unfair statement and, for that
purpose, I enclose here a brief summary of the actions which the
Ford Administration and its predecessers have taken to stand up
for the land and water rights of American Indian people.
Sincerely,
FORD
Bradley H. Patterson, Jr.
Mr. Edward F. Sayder
Executive Secretary
Friends Committee on National Legislation
245 Second Street, N. E.
Mr. Wm. J. Baroody, Jr.
Washington, D. c. 20002
BCC: Mr. Greg Austin, Interior
Mr. Pet er Taft, Justice
Mr. Morris Thompson, BIA
Attachment
Mrs. Bobbie Kilberg
BHP, Jr. /vhs
PROTECTING INDIAN LAND AND WATER RIGHTS
The President in 1970 proposed, and his staff lobbied hard and successfully,
to have Congress restere the sacred Blue Lake lands to the Tace Pueble. The
President signed this bill in December of 1970.
The White House worked for two years to arrange for the return to the Yakima
Tribe of 21, 000 acres of land improperly taken from them by a Presidential
mistake in 1906. The land was returned in 1972.
The White House strongly supported the Menominee Restoration Bill as a leading
example of the President's rejection of the terminationist philosophy of the "50s.
The bill was signed and is being implemented.
The White House itself designed, proposed and lobbied hard for the version of
the Alaska Native Claims Act which passed and which now guarantees Alaskan
natives 40, 000, 000 acres of land and a billion dollars in the 50th State.
The White House intervened to make sure that the government, as trustee, effectively
supported Indian treaty rights in the fishing case in the State of Washington. The
resulting Boldt decision is a milestone of protection for these rights.
The White House made sure that the Interior and Justice Departments strongly
supported the Paintes in the famed Pyramid Lake case. They did and the brief filed
in the Supreme Court is a classic statement for Indian water rights.
The White House intervened with the Justice Department to ensure that whenever
there is a court case where Interior wants the Indian trust rights spoken for,
this will be done, even if the Federal brief is itself "split." The Ford White
House reaffirms this arrangement and reaffirms its six-year-old support for
the creation by Congress of an Indian Trust Counsel Authority which will always
defend Indian natural resources rights wherever they are challenged.
The Stevens decision protects Indian land from improper taxation; the White House
intervened to ensure that the Indian trust rights were reflected in the Federal'
brief in court.
Besides signing the Indian Self-Determination Act in 1975 and the Indian Health
Care Improvement Act in 1976, President Ford told an assemblage of Indian
leaders from all over the nation on July 16, 1976:
"Many Indian reservations contain valuable natural resources. There
must be the proper treatment of these resources with respect for nature,
which is a traditional Indian value. My Attorney General has established
an Indian resources section whose sole responsibility is litigation on
behalf of Indian tribes to protect your natural resources and your juris-
dictional rights."
Sometimes there are cantroversies as to precisely what the Indian treaty and
trust rights are; litigation is often necessary to determine them. President Ford
will continue to honor and protect Indian treaty and trust rights, and the record
backs this up.
October 6, 1976
Dear Mr. Sayden:
The August - September Newslatter of the Friends Committee
National Legislation carried a special box captioned "American
Indians. # = stated that the Ford Administration has apposed enact-
most of the Indian Health Care Improvement Act and "opposed efferts
I per Influes return programs 2
The President, after personal review, decided to sign the
Indian Hoalth Care Improvement Act, and I am forwarding a copy
of his Signing Statement, along with our own thanks for the support
in this legislation by the Friends.
The reference to opposing efforts to protect Indian land and
water reserves in, however, treableseme to me because is does
met reflect the facts and thus the fairness which otherwise charae-
terines the activities of the Friends.
I would very much hyprociate # if the Newsletter would afford
me the opportunity to.gozzect this unlair statement and, for that
purpose, I enclose here a brief summary of the actions which the
Ford Administration and the prodecessors have taken to stand up
for the land and water rights of American Indian people,
Sincerely,
Bradley H. Patterson, 3r.
Mr. Edward F. Sayder
Inscutive Secretary
Friends Committee on National Legislation
245 Second Street, N. =.
Mr. Wm. J. Barpedy, Jr.
Washington, D. C. 20002
BCC: Mr. Greg Austin, Interior
Mr. Pet er Taft, Justice
Mr. Morris Thempson, BLA
Attachment
Mrs. Bobbie Kilberg
BHP, Jr. /vhs
PROTECTING INDIAN LAND AND WATER RIGHTS
The President in 1970 proposed, and his staff lebbied hard and successfully,
to have Congress restere the secred Blue Lake lands to the Tase Pushle. The
President elgned this bill in December of 1970.
The White House worked for two years to arrange for the return to the Yakima
Tribe of 21, 000 acces of land improperly taken from them by & Presidential
mistake in 1906. The land was returned in 1972.
The White House strongly supported the Menomines Restoration Bill as a leading
example of the President's rejection of the terminationist philosophy of the "50s,
The bill was signed and is being implemented.
The White House itself designed, proposed and lobbied hard for the version of
the Alaska Native Claims Act which passed and which new guarantees Alaskan
natives 40, 000, 000 seree of land and a billion dollars in the 50th State.
The White House Intervened to make sure that the government, as trustee, effectively
supported Indian treaty rights in the fishing case in the State of Washington. The
resulting Beldt decision is a milestone of protection for these rights.
The White House made sure that the Interior and Justice Departments strongly
supported the Patutes in the famed Pyramid Lake case. They did and the brief filed
is the Supreme Court is a classic statement for Indian water rights.
The White Hause intervened with the Justice Department to ensure that whenever
there to = court case where Interior wants the Indian trust rights spoken for,
this will be done, even if the Federal brief is Steelf "split. # The Ford White
House resilfirms the arzangement and reaffirms the six-year-old support for
the creation by Congress of an Indian Trust Counsel Authority which will always
defend Indian natural resources rights wherever they are challenged.
The Stevens decision protects Indian land from improper taxation) the White House
intervened to chaure that the Indian trust rights were reflected in the Federal'
brief in court,
Besides signing the Indian Self-Determination Act in 1975 and the Indian Health
Care Improvement Act in 1976, President Ford told an assemblage of Indian
FORD
lenders from all over the nation on July 16, 1976:
"Minny Indian reservations contain valuable natural resources. There
LIBRARY
must be the proper treatment of these resources with/respoct for nature,
which is a traditional Indian value. My Attorney General has established
on Indian reserve## section whose sole responsibility is litigation on
behalf of Indian tribes to protect your natural resources and your juris-
dictional rights."
Sepatimes there are cantroversies as to prestacly what the Indian treaty and
trust rights are; litigation is often necessary to determine them. President Ford
will continue -henov and protect Indian treaty and trust rights, and the record
Sand to bad Patternor
CARTER
AR
HEALTH
HEALTH
costs
are
of
deep
contern
to
all
Carter says that "we have built a haphazard, unsound inefficient
illness can be borne by very few in
non-system which has left us unhealthy and unwealthy at the same
We must eliminate this fear from every family."
time."
FORD
Ford supports a health insurance program for Americans over 65
His "first emphasis" as President would be on "prevention of the
with would modify Medicare to cover all costs after $500 in hos-
killers and cripplers of our people." Also he cites the two separate
1st bills and $250 in doctors' fees but would require participants
existing programs, Medicare and Medicaid, neither of which relates
pay 10% of all hospital bills under $500 and doctors' bills under
to health manpower and research programs, and both of which
250. He opposes "federally dictated" national health insurance
have experienced massive, unanticipated cost increases, as a "per-
oviding full coverage for all Americans.
fect example of the need for government reorganization."
During the 94th Congress Ford has vetoed, as too expensive,
HOB bills on health services and nurses' training, school lunches,
Carter has indicated general support for a comprehensive univer-
di the 1976 LaborsHEW Appropriations Congress overrode all
sal national health insurance program financed by payroll taxes and
general tax revenues, and accompanied by reforms in the delivery
Mice votoes.
of health services. He would support implementation to the extent
HANDGUNS
that it can be afforded.
The Ford Administration has supported a ban on the sale
and manufacture of cheap handguns. The Republican plat-
As Governor, Carter decentralized and expanded mental health
form. however, opposes any federal registration of firearms.
facilities, initiated a storefront drug abuse program, strengthened
preventive medicine prog ams, and doubled the number of alcohol-
Both Carter and the Democratic Plafform support banning
ism clinics in Georgia.
cheap handguns and establishing stronger controls over the
manufacture, distribution, and possession of all handguns.
CRIMINAL JUSTICE
CRIMINAL JUSTICE
Ford believes that "swift and certain" punishment is the answer
Carter supports "swift arrest and trial, and fair and uniform
or crime control. "To keep a convicted criminal from committing
punishment" for any lawbreaker, but he has expressed doubts that
nore crimes, we must put him in prison so he cannot harm more
imprisonment really helps to control crime. "The overall, only solu-
W abiding ultizens."
tion that I see to the crime problem
is
the
reduction
of
unemployment."
Ford supports Senate Bill One, the controversial criminal code
VISION S 1 would authorize, among other things, the death
The Democratic Platform supports "major reform of the criminal
emity for cases of sabotage, espionage, treason, and
justice system," and opposes "any legislative effort to introduce
number, and whitapping for 61 separate criminal offenses.
repressive and anti-civil libertarian measures in the guise of reform
to propress Family $10 million for juvenile delinquency prevention in
of the criminal code."
977 But Congress voted $75 million. In his 1976 State of the
Union address, he called or construction of four new federal
As Governor, Carter signed a bill providing the death penalty for
missus
certain cases of murder, kidnapping, armed robbery, rape, treason,
and aircraft hijacking. On July 2, the U.S. Supreme Court upheld the
Georgia law in a case involving murder.
"A MAN IS KNOWN
As Governor, he formed a biracial civil disorder unit to quell po-
Among the people Ford has appointed are Nelson
tential disturbances without force, strengthened prison education
Rockefeller, vice prevident: John Paul Stevens, Supreme
and counseling programs, and supported a bill to extend the use of
Court Justice: Edward Levi, Attorney General; Carla Hills,
wiretapping to theft, extortion, and auto theft.
HUD: F David Mathews, HEW. William Colemen, Transporta-
Bon; John T. Dunlop and W.J. Usery, Jr., Labor; Elliot L.
Richardson. Commerce: Stanley Hathaway and Thomas
Kleppe Interior: Anne Armstrong, Ambassador to Great Bri-
AMERICAN INDIANS
tain. Among the appointees not confirmed by the Senate were
The Ford Administration has opposed enactment of the In-
Joseph Coors, Corporation for Public Broadcasting; Ben
dian Health Cite Improvement Act, urged termination of the
Blackbum, Champan, Federal Home Loan Bank Board; and
food commodity program for Indians and others, and opposed
Joseph 1. Napper, 111, TVA
efforts to protect Indian land and water resources. A significant
Carton - as his running mate As Governor he
number of official investigations, intimidating activities, use of
Atlants lawyer, 10 the US Senate 10 fill
informants, and prosecutions regarding Indians have taken
douth
place during the Ford Administration.
have appuinted 53 blacks in the Georgia
Carter has not indicated what his policy toward Indians will
compared to three in Gov Middox d-
be as this Newsletter goes to press.
which to posts never before held by
in state judgeship.
FCNL Washington Newsletter, August-September 7976
Major Vice-Presidential Candidates
ROBERT J. DOLE
WALTER F. (Fritz) MONDALE
53. Home: Russell, Kanses. Religion. Methodist Education:
Age: 48. Home: Afton, MN Religion: Presbyterian Education:
Kansas and Arizona, Washburn Municipal U, B.A. and LL.B.
Macalester College; U. of Minn., B.A. 1951, LL.B. 1956 Military
2. Military Service: Army Infantry Officer World War II. Public
Service: Army 1951-53, discharged as corporal. Public Offices:
Nces: Kansas House of Representatives 1951, Russell County
Minnesota Atty. General, 1960-64; U.S. Senate 1964 to date
arney 1953-61, U.S. House of Representatives 1961-9; U.S.
Family: Wife, Joan, three children.
ate 1969 to present. Family: Wife, Elizabeth; one daughter by
Mondale, the son of a Methodist minister, was serving as Minn.
vious marriage.
Atty. General when Hubert Humphrey was elected vice-president in
Dole was elected to the U S. House of Representatives in 1960
1964. Mondale was named to the Senate seat, and was elected and
di served there for eight years. He was elected to the Senate in
re-elected in 1966 and 1972. In 1974 Mondale explored the
68 and narrowly reclected in 1974 in a bitter campaign against
possibility of a Presidential bid but decided he was not ready to give
William Roy. In the Senate, Dole, like Mondale, serves on the
the time and energy required for that struggle.
W Budget Committee, the tax writing Finance Committee and the
In the Senate Mondale serves on the Budget, Finance, and Labor
lect Committee on Nutrition and Human Needs. He is also ranking
and Public Welfare Committees, the Special Committee on Aging,
ember of the Agriculture and Forestry Committee and on the Post
and Select Committees on Nutrition and Human Needs and Small
fice and Civil Service Committee.
Business. As a member of the Senate Select Intelligence Committee
Dole served as Chairman of the Republican National Committee
in 1975 and 1976, Mondale was head of its Subcommittee on
ring the Nixon-Agnew reelection campaign. He defended the Nix-
Domestic Intelligence.
Administration against Watergate charges, but he privately cri-
ized the Nixon administration and was fired as G.O.P. national
During his Senate career Mondale has been identified with civil
airman in 1973.
rights and social welfare causes. He has played a leading role in
efforts to limit filibusters, provide open housing, speed school
In Congress Dole and George McGovern have fought for positive
desegregation, and to pass bills on child abuse and infant crib death
anges in the food stamp laws. Dole opposed open housing provi-
and to publicize the plight of migrant workers and Indians. This year
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IN REPLY REFER 70:
UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
to
September 23, 1976
NOTE TO SOLICITOR
We have surnamed "noted" because, as you know, we continue
to believe Powers does not compel the conclusion in Part
I of the letter, and that the tribe should be allowed to
regulate the "second component" of the Hibner right if
you accept Hibner. We do believe this letter is a
significant improvement, however, over the one of July 2.
ReidChed
FORD & LIBRARY 033870
IN REPLY REFER TO:
?
UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
28
1976
SEP
Honorable Peter R. Taft
Assistant Attorney General
Land and Natural Resources Division
Department of Justice
Washington, D.C. 20530
Dear Mr. Taft:
Re: United States V. Walton, Civil No. 3421,
E.D. Wash.; United States V. Bel Bay
Community and Water Association, Civil
No. 303-71C2. W.D. Wash.
As you know, by letters of September 14, 1971 and February 2,
1973, we asked your Department to file the above actions.
In these letters, we asked you to take the position "that
the Secretary of the Interior has the exclusive jurisdiction
to control and administer the allocation of waters on tribal,
allotted and formerly allotted lands" on the Colville and
Lummi reservations pursuant to 25 U.S.C. $381. We also asked
you to assert that the State of Washington has no authority
to issue water permits to non-Indians on these reservations,
and that the state should be enjoined from issuing such
permits.
These cases have been pending for several years. The United
States and the tribes have undertaken numerous studies.
From these studies and through discovery, the facts involved
in these cases have been clarified. Also, our views of
the proper legal theories to be espoused have undergone
considerable refinement and some alteration. After much
deliberation, and after meetings with you and your staff,
we sent you a letter on July 2, 1976, proposing a different
legal position in these cases. You responded to that letter
with additional proposals on July 19, and we have since that
date had a number of further discussions. We now propose
that the legal position to be asserted by the United States
should be modified as follows.
-2-
There are two basic questions:
(1) Do Indian allottees and non-Indian
successors in interest to Indian allottees
hold any portion of the Winters Doctrine
reserved right to the use of water?
(2) What is the respective extent of the
authority of the Secretary, the state and
the tribes to regulate the use of waters
on Indian reservations.?
Our analysis of the legal questions follows.
I
On the first question, our views are unchanged from our
July 2 letter and we understand that you agree with them.
We believe that the Indian allottees and their non-Indian
successors in interest do hold some reserved rights to the
use of water. The only Supreme Court decision which speaks
to this question is United States V. Powers, 305 U.S. 527
(1939) In Powers, the United States brought suit to enjoin
the non-Indian successors in interest to certain Indian
allottees on the Crow Reservation in Montana "from using
or diverting any water from two streams on the Reservation. "
The United States contended that Congress had given it
ownership and control of all reserved waters on the Crow
Reservation. The Secretary of the Interior had constructed
certain irrigation projects prior to making allotments of
reservation lands, and the United States argued that this
construction plus its ownership and control of the reserved
waters "sufficed to dedicate and reserve sufficient water
for full utilization of these projects." 305 U.S. at 532.
The Court rejected the government's position, and appeared
to accept the arguments of the non-Indian water users. It
said:
"respondents maintain that under the
Treaty of 1868 waters within the
reservation were reserved for the
equal benefit of tribal members
(Winters V. United States, 207 U.S.
-3-
564) and that when allotments of land
were duly made for exclusive use and
thereafter conveyed in fee, the right
to use some portion of tribal waters
essential for cultivation passed to
the owners.
'The respondents' claim to the extent
stated is well founded." (Id at 532).
The Court concluded:
"The petitioners have shown no right
to the injunction asked. We do not
consider the extent or precise nature
of respondents' rights in the waters.
The present proceeding is not properly
framed to that end." (Id. at 533)
(emphasis added).
The interpretation of Powers as holding that allottees and
their successors in interest succeed to some reserved water
right finds support in subsequent cases. E.g., Preston V.
United States, 352 F.2d 352 (9th Cir. 1965) ; Segundo V. United
States, 123 F. Supp. 554 (S.D. Cal. 1954). This office has
been vigorously urged by the Commissioner of Indian Affairs,
supported by the Associate Solicitor for Indian Affairs and
the Colville and Lummi tribes, to adopt a litigating position
that Powers does not compel the conclusion that allottees
and their successors in interest succeed to a reserved water
right. Their argument is that this question was not directly
contested or presented before the Court in Powers or in
subsequent cases like Segundo and Preston, and that the
holding in Powers was simply that the United States was
not entitled to the extraordinary relief of an injunction
on the theories it advanced in that case. Under their view,
the language quoted above in Powers is mere dictum.
Moreover, they assert that under ordinary principles of
Indian law, the tribal ownership of Winters Doctrine water
rights has never been clearly and expressly transferred by
Congress, and must therefore remain in the tribe. We have
carefully considered and reflected on this argument, but
decided to reject it.
-4-
One district court case, United States V. Hibner, 27 F.2d
909 (D. Ida. 1928), considers the question--left open by
Powers-of the scope of the allottees' right and that of
their successors in interest. In Hibner, the court
extended an earlier case */--which held that the leasing
of allotteed lands to a non-Indian did constitute the
abandonment of the individual water right expressly
created by the 1898 agreement with the Shoshone-Bannock
Tribe of the Fort Hall Reservation--to hold that sale
of an allotment did not extinguish the allottees'
reserved water right. The Court first stated:
"a purchaser of such land and water
rights acquires, as under other sales,
the title and rights held by the
Indians, and there should be awarded
to such purchaser the same character
of water right with equal priority
as those of the Indians. (Id. at
912) "
The court then held, however, that "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." (Id.) The court stated that the non-
Indian is "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." Thereafter,
the non-Indian can secure a state law right to appropriate
additional waters with a priority date as of the time
of commencing those later appropriations. The court
reasoned, plausibly, that when the water right passed out
of trust status, the purpose of the reservation no longer
required a reserved water right which expands to satisfy
future needs. The court gave as its reason that
*
Skeem V. United States, 263 Fed. 93 (9th Cir. 1921).
-5-
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 owner of the Indians lands, is
subject to those general rules of law
governing the appropriation and use of the
public waters of the state. "
We ask you to take the position that the scope of the
reserved right which passes to allottees and successors
in interest pursuant to Powers is that set forth in
Hibner except that we ask you to argue that the non-Indian's
reserved right should be limited to the water actually used
by the Indian predecessor. We think that--as the court
noted--the federal purpose for an expandable Winters type
reserved right ceases when the lands pass out of trust.
A non-Indian purchaser, therefore, would get a Winters
Doctrine priority to the amount of water used when the
land was in trust. The successor in interest can expand
his use thereafter, but we believe that principles of state
law (and a later priority date) should cover this later
use.
II
It remains to discuss the respective authority of the
Secretary, the state and the tribe to regulate the use of
water on Indian reservations.
Section 7 of the General Allotment Act of 1887, 25 U.S.C. $381,
is the only provision conferring jurisdiction on the Secretary
to regulate use of reservation water rights. It reads:
"In cases where the use of water for
irrigation is necessary to render the
lands within any Indian reservation
available for agricultural purposes,
the Secretary of the Interior is
authorized to prescribe rules and
regulations as he may deem necessary
FORD LIBRARY
-6-
to secure a just and equitable
distribution thereof among Indians
residing upon any such reservations;
and no other appropriation or grant
of water by any riparian proprietor
shall be authorized or permitted
to the damage of any other riparian
proprietor.'
We stated on July 2 that in our view Section 381 does not confer
jurisdiction on the Secretary--exclusive of tribes--to regulate
all uses of water on Indian reservations. First, the statute
is limited to "water for irrigation." Secondly, the statute
authorizes the distribution of this water "among Indians
residing upon [the]
reservation. This confers no
authority upon the Secretary to deliver any water to
non-Indians. Moreover, the Secretary's authority to regulate
any water use by non-Indians under this statute is very
doubtful; at most, it would seem he could stop uses of water
by non-Indians that interfere with Indian uses.
In your July 19 response, you indicated that a somewhat broader
view of Section 381 would be supportable. Since it applies
to allotments, you suggest that it could extend to "patented
lands, and thus to non-Indians. You also indicated that,
in your view, Section 381 would not prohibit the tribes from
exercising control over the reserved water rights (from
our discussions, we have agreed that this means waters
used on trust lands and the first component of the rights
described in Hibner) so long as the exercise of this tribal
authority was consistent with the trust responsibility of
the United States with respect to the lands.
Although we recognize that a more expansive interpretation
of Section 381 could be argued to a court, we do not choose
to adopt that construction of the statute. However, we
have jointly formulated a proposal which will make
resolution of this issue, and the question of the precise
extent of tribal jurisdiction, unnecessary. Under Section
381, the Secretary has authority "to prescribe rules and
regulations deemed necessary to secure a just and equal
distribution of waters." We propose that this Department
-7-
will adopt regulations under Section 381 delegating
substantial regulatory authority to the tribes to adopt
water codes on particular reservations. These regulations
will state that the Department will approve individual
tribal water codes regulating the use of water reserved
under the Winters Doctrine on the tribe's reservation so
long as the following conditions are met:
(1) The tribal code provides acceptable
due process procedures to protect the
rights of persons subject to them,
ultimately permitting judicial review of
determinations in the federal courts;
(2) The tribe establishes institutions
that are adequate to administer the water
code;
(3) The tribal code provides that it
does not divest any valid rights under
federal law as may be established by
courts of competent jurisdiction;
(4) The tribe seeks only to regulate
the use of reserved water rights, which
includes tribally owned water rights,
rights owned by allottees, and the
"first component" of the rights
described in Hibner;
(5) The tribal water codes would not
regulate the use of water within
statutory irrigation projects on the
reservation with water rights created
by federal statutes.
It is our intention to proceed forthwith with the drafting
of such Departmental regulations and to publish them as
proposed rulemaking in the Federal Register for public
comment. As we prepare the precise regulations, the
general conditions suggested above will, of course, be
honed in greater detail. We will do this in close
-8-
consultation with Myles Flint of your office. We are
furnishing you, however, with this outline of the
regulations at the present time to enable you to meet the
court deadline of October 8 in Bel Bay case.
This proposal obviates the necessity of adopting a position
as to the precise scope of Section 391 authority and of
tribal jurisdiction as far as non-Indians are concerned.
By combining the governmental powers of the Secretary
and the tribe, federal-tribal authority is exercised.
It does not matter, for example, whether the tribe in
its adoption of tribal water codes is exercising
delegated authority or inherent tribal power. See
United States V. Mazurie, 419 U.S. 544 (1975).
It remains to discuss the "second component" of the Hibner
test. In our July 2 letter, we asked that you take the
position that states have a limited authority to issue
permits to non-Indian landowners on an Indian reservation
who claim a right to use water pursuant to this "second
component;" that is, an appropriative type right to the
use of water under state law principles with a priority
date after their purchase of their former trust allotment.
We have carefully considered the conclusions in your
July 19 letter that such questions are ones of federal
(not state) law, that administration of such rights
should not be subject to state jurisdiction, but that
federal law may incorporate state law concepts such as
the prior appropriation doctrine for purposes of
interrelating the rights of non-Indians under the Hibner
case to Winters Doctrine rights. As you reasoned in that
letter, state jurisdiction over the use of water derives
from the Desert Lands Act of 1877, 19 Stat. 377, 43 U.S.C.
8321, and its predecessors. That Act confers plenary
control on states over nonnavigable waters on the public
domain. See Cappaert V. United States,
U.S.
44 L.W. 4756 (June 7, 1976) ; FPC V. Oregon, 349 U.S. 435
448 (1955) ; Power Co. V. Cement Co., 295 U.S. 142, 158,
163-164 (1935). Reserved lands held in trust for an
Indian tribe or withdrawn from the public domain for
other uses are obviously not public lands, and the state
has no power to regulate the exercise of reserved water
rights. E.g., United States V. McIntire, 101 F.2d 650
(9th Cir. 1939).
;
FORD
LIGRARD
-9-
When lands within the exterior boundaries of an Indian
reservation pass out of trust status and into. fee,
they do not become public lands nor do they become a
portion of the public domain in the sense that they
are subject to sale or other disposition under the
general land laws. See Union Pacific R.R. Co. V
Harris, 215 U.S. 386, 388 (1909) ; Ash Sheep Co. V.
United States, 252 U.S. 159, 166 (1920) ; Seymour V.
Superintendent, 368 U.S. 351, 355 (1961) ; Mattz V.
Arnett, 412 U.S. 481, 497 (1973) Rights to the use
of water on these lands, even when in fee ownership,
would accordingly, be determined by federal law
rather than state law. See United States V. McIntire,
101 F.2d 650, 653-654 (9th Cir., 1939) ; Tweedy V.
Texas Company, 286 F. Supp. 383, 395 (D. Mont. 1968)
United States V. Ahtanum Irrigation District, 236 F.2d
321 (9th Cir.) cert. den. 352 U.S. 988 (1957) Since in
these cases the State of Washington can only exercise
jurisdiction over the use of water as derived from the
Desert Lands Act, this does not provide any basis for
jurisdiction by the State on either reservation. We have
decided to concur in your analysis and conclusions, and
therefore ask you to continue to assert that the
regulation of the use of water on tribal lands, trust
allotments and formerly allotted lands is exclusively
a matter of federal and/or tribal jurisdiction.
While, the second component of the Hibner right is
derived from federal law, and subject to federal
jurisdiction, we do not believe, it has any
characteristics of a federally reserved water right.
Accordingly, we do not support tribal jurisdiction
over this use of water. Federal statutory law is
silent on the administrative regulation of this use
of water. As you point out in your July 9 letter,
federal law would apply, and incorporates state law
doctrines. If a landowner were to exceed his rights
under this second component, and interfere with reserved
rights, we believe the proper remedy would be an
injunctive action in federal court against him (or,
alternatively, a general quiet title adjudication
looking toward a decree administered by a
water-master). There would, in our view, be no
proper tribal administrative remedies.
-10-
At this juncture, an illustrative example may be
helpful. If a reservation were established in 1860,
and allotted in 1900, and an Indian allottee had
applied 5 acre feet of water annually to his allotment
before it passed out of trust in 1940, the non-Indian
successor of interest would have a Winters type
reserved water right to use 5 acre fee with an 1860
priority date (or an immemorial priority in appropriate
circumstances). If he then applied a total of 20 acre
feet after 1940, he would have an additional 15 acre
feet with a 1940 (or later) priority. This second
component (with the 1940 or later priority) of the
Hibner right would be junior to all reserved rights.
These reserved rights (including the 5 acre-foot
right which is the "first component" of Hibner) would
be regulated by an approved tribal water code. If the
landowner exceeded his reserved rights, and the persons
entitled to reserved rights (as determined pursuant
to the tribal code by, for example, the issuance of
permits) were injured, their remedy or that of the
United States as trustee would be in federal court.
This letter in its entirety supplants my letter to you of
July 2, 1976, which letter is hereby withdrawn. We
appreciate the mutually frank and cooperative discussions
we have had with your office concerning these cases within
the past few months, and hope that this produces a
mutually agreeable position for both our Departments.
Sincerely,
H., Gregory Austin
Solicitor
OF
United States Department of the Interior
OFFICE OF THE SECRETARY
March
3.
1849
WASHINGTON, D.C. 20240
DEC 1 1976
Memorandum
To:
Acting Deputy Commissioner, Bureau of Indian Affairs
From:
Executive Secretary
Subject: U.S. V. Walton and U.S. V. Bel Bay Community and Water
Association
On November 12 you requested that the Solicitor retract his September 28
recommendations to the Justice Department on U.S. V. Walton and U.S.
V. Bel Bay Community and Water Association. The Solicitor has responded
that BIA was involved in many meetings in 1974 and 1975 to develop the
position sent to the Department of Justice on September 28, 1976.
The Solicitor has also stated that he would like to receive additional
suggestions or recommendations from BIA. He cannot discern from your
memorandum the areas of disagreement with the September 28, 1976 Depart-
mental Position. He has suggested that you detail your specific objec-
tions to him.
In view of the above offer by the Solicitor, I would suggest that you
develop your alternative position and then make a specific proposal direct-
ly to Mr. Austin.
Pare h Reeves
Pame
Paul L. Reeves
FORD LIBRAN
cc:
Executive Assistant to the Secretary
Under Secretary
Solicitor
AMERICAN REVOLUTION SECENTENNAL
1776-1976
R
OF
DEPARTMENT
THE
UNITED STATES
TERIOR
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
March
OF
WASHINGTON. D.C. 20240
Memorandum
NOV 24 1976
To
:
Executive Secretary
From : Solicitor
Subject: U.S. V. Walton and U.S. V. Bel Bay Community
and Water Association.
This is written in response to your memorandum of
November 16, 1976 enclosing a November 12 memorandum
from Acting Deputy Commissioner, B.I.A., Theodore
Krenzke to the Secretary objecting to our position in
the above cases, as set forth in my letter to Justice of
September 28, 1976, as well as this office's alleged
failure to consult with the B.I.A. prior to taking such
position in these cases.
First, the B.I.A. memo fails to specify in what respect
it disagrees with our position in the above cases. If
Acting Deputy Commissioner Krenzke or his staff would
detail their objections and suggestions we would be
delighted to consider them and if persuaded of their
soundness change our position accordingly.
Second, Mr. Krenzke's suggestion that our positions
in the above cases were not discussed with officials
of the B.I.A. prior to our September 28, 1976 letter
to Justice is in error.
In 1974 and 1975 literally dozens of meetings were
held on precisely these questions between the Solicitor,
the Associate Solicitor, Indian Affairs and his staff
and B.I.A. officials, including Martin Seneca, George
Crossland, William Veeder, and Phil Corke. In addition
a number of written memorandums were exchanged on the
subject. The B.I.A.'s position, as set forth in these
discussions and memoranda was fully taken into considera-
tion by this office prior to stating our position in
the letter to Justice of September 28, 1976.
331 33 301320
REVOLUTION
18 :6v 266 AON 92
AMERICAN
BICENTENNIAL
THE INTERIOR
FORD LIBRARY & GERALD
1776-1976
-2-
Nevertheless, as stated above if the B.I.A. has additional
suggestions or recommendations I remain eager and willing
to receive them.
H.Hryoy anstin
H. Gregory Austin
Solicitor
OPTIONAL FORM NO. 10
JULY 1973 EDITION
GSA FPMR (41 CFRI 101-11.6
TARE
UNITED STATES GOVERNMENT
./0,
2.1202
Memorandum
FYI
TO
:
DATE:
NOV 12 1976
Secretary of the Interior
Acting Deputy
FROM :
Commissioner of Indian Affairs
SUBJECT:
Powers-Hibner Issues
United States V. Walton, Civil No. 3421, E.D.Wash.;
United States V. Bel Bay Community and Water
Association, Civil No. 303-71C2. W.D. Wash.
On September 28 last, Solicitor Austin made several recommendations to
Assistant Attorney General Taft with regard to the litigation referenced
above involving the Lummi and Colville tribes in these separate law suits
but with similar legal issues. We feel that the Solicitor's recommendations
were not only in error but also indicate a compromising of the tribes'
reserved water rights which is improper for a trustee to do. It is most
disturbing that these important recommendations were not discussed with
BIA personnel in order that our views could have been restated and also
have been given the opportunity to comment on and/or object to the recom-
mendations. Had we been asked, we would have recommended, as a matter of
policy, that the Department develop the most forceful legal argument in
support of tribal Winters rights. As we view it, the Solicitor developed
a compromise position that can do nothing but harm the tribes' rights.
It is our recommendation that the Solicitor's September 28 recommendations
to the Justice Department be retracted in order that a more forceful legal
argument may be developed in support of the tribes' Winters rights. It is
our further recommendation that important Departmental positions relating
to Indian affairs be routed through appropriate Bureau of Indian Affairs'
offices for comment and surname before they are communicated to outside
agencies.
Fheodory CHanke
GERALE if FOND
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