United States v. Adair
723 F.2d 1394 (1983)
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Rule of Law:
A treaty that reserves to a Native American tribe the right to hunt and fish on reservation lands also implicitly reserves a right to water sufficient to support those activities. This water right carries a priority date of time immemorial and survives the subsequent termination of the reservation unless explicitly abrogated by Congress.
Facts:
- The Klamath Tribe has hunted, fished, and foraged in the area of the Klamath Marsh and Williamson River for over a thousand years.
- In an 1864 treaty, the Klamath Tribe ceded approximately 12 million acres to the United States but reserved an 800,000-acre reservation which included the Klamath Marsh.
- Article I of the treaty guaranteed the Tribe the exclusive right to hunt, fish, and gather on the reservation, while Article II provided funds to encourage an agricultural way of life.
- Beginning with the General Allotment Act of 1887, parcels of the communal reservation land were granted in fee to individual Indians, many of whom later sold their allotments to non-Indians.
- The Klamath Termination Act of 1954 provided a mechanism for tribe members to give up their interests in tribal property for cash.
- To satisfy its obligations under the Termination Act, the United States purchased a large portion of the former reservation land, which was subsequently managed as part of the Winema National Forest and as a migratory bird refuge.
- At the time of litigation, ownership of the former reservation lands was divided among the United States (approximately 70%), individual Indian allottees, and non-Indian successors.
Procedural Posture:
- In 1975, the United States filed suit in the U.S. District Court for the District of Oregon against 600 landowners, seeking a declaration of water rights in the Williamson River watershed.
- The Klamath Tribe intervened as a plaintiff, and the State of Oregon intervened as a defendant.
- The district court, after a trial on stipulated facts, issued a decision declaring the existence and priority of water rights for the parties.
- The district court held that the Tribe possessed water rights with a priority of 'time immemorial' to protect its treaty hunting and fishing rights, and that these rights were superior to agricultural water rights with an 1864 priority date held by individual Indian and non-Indian landowners.
- The State of Oregon and the individual landowners appealed the district court's decision to the U.S. Court of Appeals for the Ninth Circuit.
- The United States and the Klamath Tribe filed a cross-appeal challenging the district court's recognition of water rights for non-Indian successors.
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Issue:
Does an 1864 treaty that reserved exclusive hunting and fishing rights for the Klamath Tribe on its reservation implicitly reserve water rights sufficient to support those activities, and if so, what is the priority date of those rights and did they survive the termination of the reservation?
Opinions:
Majority - Fletcher, Circuit Judge
Yes. An 1864 treaty that reserved exclusive hunting and fishing rights for the Klamath Tribe also implicitly reserved water rights sufficient to support those activities with a priority date of time immemorial, and these rights survived the termination of the reservation. Under the Winters doctrine, the federal government's reservation of land for a specific purpose implies the reservation of sufficient unappropriated water to fulfill that purpose. The court found that both promoting agriculture and securing the Tribe's traditional hunting and fishing lifestyle were primary purposes of the 1864 treaty. Since water is necessary to maintain the fish and wildlife habitats, a water right to protect instream flows was implicitly reserved. The Klamath Termination Act of 1954 did not abrogate this right, as it contained a savings clause explicitly stating that '[n]othing in [the Act] shall abrogate any water rights of the tribe and its members.' The abrogation of treaty rights requires a clear and explicit statement from Congress, which was absent here. The court further held that the priority date for these hunting and fishing water rights is 'time immemorial,' not the 1864 treaty date, because the treaty was a reservation of rights from the Indians, not a grant to them; it confirmed the Tribe's pre-existing aboriginal rights. The scope of the right, however, is limited by the 'moderate living' standard, meaning the amount of water necessary to support the Tribe's hunting and fishing needs today, not to restore the habitat to 1864 conditions.
Analysis:
This decision is a cornerstone of tribal water rights law, affirming that treaty-based hunting and fishing rights include an implied, non-consumptive right to instream water flows. It significantly established that when such rights are based on aboriginal use, their priority date is 'time immemorial,' giving them seniority over all other water rights in a system. The case also powerfully reinforces the canon that tribal treaty rights, including water rights, survive reservation termination unless Congress explicitly states otherwise. By introducing the 'moderate living' standard as a measure for quantifying the right, the court provided a framework to balance tribal needs with the interests of subsequent water users, shaping future litigation over the scope of tribal environmental and resource rights.
