© Concerned Citizens of Western Montana
Update: Click here for information pertaining to how to amend a pre-1973 water right,
Note: We are not attorneys and this article is not intended to give legal advice.
This is a repost of an article from a year ago, and we are putting it out again with the hope that any objectors living within the reservation’s historic boundaries will make a determination as to whether their property was an original allotment or a homestead. There is a significant chance that your property may have been part of an Indian Allotment and if so it carries has an 1855 Walton water right as is discussed in the article below.
The intent of this article is to provide information that could be meaningful to landowners for the proper recording of and protection of their water rights. It pertains to people living within the historic boundaries of the Flathead Reservation who may not be aware that they could have Secretarial and / or Walton water rights. Because the history of these two types of water rights are rooted in the original allotments issued to individual Indians, both Secretarial and Walton rights are very valuable treaty-based water rights.
If your property is on an original allotment and your water right filed with the state does not reflect an 1855 priority date, we urge you to submit a request to change the priority date of your water right using the appropriate DNRC form linked here. For any objectors to the Flathead Water Compact, we also urge you to amend your objection to the water court to include this information in your objection if you haven’t already addressed it.
For any objector that wishes to file an amendment to their original objection, please keep an eye out for another article to be posted fairly soon that will try to help walk objectors through the process of filing a motion with the water court. As always, thank you for taking the time to consider this information.
It is possible that this information, if used properly, could very well make the difference between the water court approving or voiding the compact.
Over the years we’ve heard a lot about Secretarial water rights and Walton water rights. While they’ve been mentioned often, even in the pages of this blog, we are not sure whether our readers understand the significance and value of these water rights.
We maintain that many people living within the historic boundaries of the reservation have Secretarial and / or Walton Water Rights, and because they may not be aware that such rights exist, affected landowners may not have formally declared their water rights to have an 1855 priority date with the Montana Department of Natural Resources and Conservation (DNRC). 
First, a brief history of allotments and homesteading on the Flathead Indian Reservation:
Article VI of the Hellgate Treaty provided for allotments to provide for permanent homes for individual Indians as follows:
ARTICLE VI. The President may from time to time, at his discretion, cause the whole, or said portion of such reservation as he may think proper, to be surveyed into lots, and assign the same as such individuals of families of the said confederated tribes as are willing to avail themselves of the privilege, and will locate on the same as a permanent home, on the same terms and subject to the same regulations as are provided in the sixth article of the treaty with the Omahas, so far as the same may be applicable
The sixth article of the 1854 treaty with the Omahas included this language:
……..And the residue of the land hereby reserved, or of that which may be selected in lieu thereof, after all of the Indian persons or families shall have had assigned to them permanent homes, may be sold for their benefit, under such laws, rules or regulations, as may hereafter be prescribed by the Congress or President of the United States. No State legislature shall remove the restrictions herein provided for, without the consent of Congress.
In 1904, Congress passed the Flathead Allotment Act, and in 1908, the first round of allotment of lands to tribal members was completed. Approximately 2,400 allotments were issued, covering 228,434 acres (designated in orange on the map above). Then in 1920, a second round of allotments transferred 124,795 acres (designated in brown on the map above) from communal Tribal ownership to individual tribal member ownership. Source: 2010 Flathead Reservation Timeline – Montana Office of Public Education and Instruction.
The combined orange and brown areas on the above map should give you a pretty clear picture of the locations of allotted lands within the former Flathead Indian Reservation. If owned by non-Indians, these allotted lands have Walton treaty based water rights appurtenant to the lands, and many of them, particularly those located around water ways and ditches, could also have Secretarial water rights on them.
You can click on the map above to see a larger, pdf document.
What are Secretarial Water Rights?
Secretarial Water Rights are defined as those rights allocated to Indian allotments by the Assistant Secretary of the Interior by his approval on November 25, 1921, of the findings of the Commission appointed by him to investigate the “private rights” on the Flathead Indian Reservation. Authority: Sec. 9, Act of May 29, 1908 (35 Stat. 449). They can exist on lands with the historic reservation boundaries, located within, or outside of the Flathead Irrigation Project.
The 2013 Proposed Water Use Agreement between the CSKT, the United States BIA, and the Flathead Joint Board of Control defined Secretarial Water Rights as:
“Secretarial Water Rights” means those interests in irrigation water represented by written statements of historic water use on Reservation land, compiled and published by the United States Department of Interior under authority of a June 27, 1912, letter of the Acting Commissioner of Indian Affairs, C.F. Hauke, entitled “Field-Irrigation, 20512-1912, 16332- 1912, McG C, Private Ditches”, to document irrigation water use that pre-existed the construction of the Flathead Indian Irrigation Project. The written statements were produced by several three-member committees appointed by the Acting Commissioner of Indian Affairs during the first two decades of the twentieth century. The several committees were comprised of the Flathead Agency Superintendent of the Bureau of Indian Affairs, a Tribal representative selected by the Tribal Council and an Engineer for the United States Reclamation Service.”
Secretarial water rights have also been the subject of at least two lawsuits:
United States v. McIntire, 101 F.2d 650 (9th Cir. 1939)
United States v.Alexander et al, 131 F.2d 359 (1942)
HIstorically, Flathead Project Management saw Secretarial water rights as conflicting with the operation of the project and the water rights claimed by the United States.
That effort continued with the water compact negotiations. The 2013 Proposed Water Use Agreement made those Secretarial water rights located within the project part:
Secretarial Water Rights serving trust property:
a. Served by the FIIP shall be subject to the FTA (farm turnout allowance) under existing terms and conditions of delivery as set forth in this Agreement; and
b. Outside the FIIP boundaries or within FIIP boundaries but not served by the FIIP shall be subject to the terms and conditions of the Secretarial Water Rights findings maintained by the Bureau of Indian Affairs.
Secretarial Water Rights serving fee property:
a. Served by the FIIP shall be subject to the FTA (farm turnout allowance) and the Project Operator’s terms and conditions of delivery; and
b. Utilized outside FIIP or within FIIP boundaries but not served by the FIIP shall be as finally adjudicated in the Montana General Stream Adjudication and shall be administered as all other non-FIIP water rights on the Flathead Reservation by the Water Management Board pursuant to the Law of Administration.
After the compact failed in 2013, the parties regrouped, and Appendix 14 of the current 2015 version of the compact specifies that Secretarial Water rights will be curtailed in the event that the massive volumes of tribal instream flows within the project are not met:
In the event that the Project Operator, through the operation of FIIP facilities cannot comply with any given interim instream flow, the Superintendent or designee may curtail secretarial water right diversions to achieve compliance with FIIP, and if necessary, secretarial water right diversions shall continue to be curtailed until the given interim instream flow is met.
You may want to run this past an attorney, but we believe that Secretarial water rights were issued only on allotted lands. This makes them treaty-based Walton rights which should carry an 1855 priority date.
What are Walton Rights?
Walton rights are water rights of a successor to an allottee who satisfies the criteria found in Colville Confederated Tribes v. Walton, 460 F. Supp. 1320 (E.D. Wash. 1978); Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981); Colville Confederated Tribes v. Walton, 752 F.2d 397 (9th Cir. 1985).
Elements of a Walton water right that must be proven are:
- The claim is for water use on land formerly part of the Flathead Indian Reservation, and the land was allotted to a member of an Indian tribe;
- The allotted land was transferred from the original allottee, or a direct Indian successor to the original allottee, to a non-Indian successor;
- The amount of water claimed for irrigation is based on the number of acres under irrigation at the time of transfer from Indian ownership; except that:
- The claim may include water use based on the Indian allottee’s undeveloped irrigable land, to the extent that the additional water use was developed with reasonable diligence by the first purchaser of land from an Indian owner.
- After initial development, the water claimed must have been continuously used by the first non-Indian successor and by all subsequent successors.
If these elements can be verified, your water rights claim should be assigned a priority date of July 16, 1855, the date the Flathead Reservation was established. The amount of water claimed for irrigation is “limited to that amount appropriated with reasonable diligence after the passage of title from the original Indian allottees (or their heirs), and maintained by continued use by each subsequent successor.”
Source: Water Rights Administrative hearing, State of Oregon, related to the Klamath River Walton Water Rights Claims
A 2017 Montana Supreme Court Decision says this about Walton Water Rights:
“When a tribal member conveys allotment land to a non-member, the water rights appurtenant to the land transfer to the non-member. Walton, 647 F.2d at 50; Lewis, 124 Mont. at 496, 227 P.2d at 72 (“Upon conveyance of the land by an Indian the water right passes to the grantee as an appurtenance unless a contrary intention appears.”). Non-Indian successors to Indian allotment lands thus acquire “Walton” rights—a “right to share in reserved waters.” Walton, 647 F.2d at 50. As the non-Indian successor-in-interest to allotment lands conveyed by a tribal member, Scott Ranch possesses Walton water rights as appurtenances to the lands it acquired. See Lewis, 124 Mont. at 496, 227 P.2d at 72; Walton, 647 F.2d at 50.”
Source: SCOTT RANCH, LLC, a Montana Limited Liability Company, Appellant. DA 17-003 Decided: September 19, 2017 APPEAL FROM: Montana Water Court, Cause No. WC 2016-04 Honorable Russ McElyea, Presiding Judge Page 4
How To Determine If Your Land was Allotted
To determine whether you are a successor in interest to an allottee, you need to look up the land patent for each parcel of property you own.
Here are some basic instructions for finding your land patent information:
You can also find additional information concerning these rights by reviewing these old articles posted on the blog:
Getting Your Water Rights in Order
Here is a recently updated version of How to Find Your Land Patent Instructions that includes additional information about using the BLM GLO Records map functionality to narrow down your search to your parcel of land:
Land Patent Search Instructions October 2022 Update
How Does this Impact Me?
If you live within the historic boundaries of the Flathead Reservation, and find that your land was an original allotment, you possess a Walton water right. If you have a Secretarial water right, the property should also be an allotment with an 1855 Walton right priority date.
After you’ve checked out the allotment status on all of your parcels, you should then check your water rights records for the priority date you have listed on your claim, and make a determination as to whether you can verify the criteria necessary to “prove” a Walton Water Right, and act accordingly.
Gather any other supporting documentation from old court cases, courthouse records, land patents, maps etc to supplement and complete your records.
While you go through this process, keep in mind that Montana has a strong institutional bias toward the Flathead Water Compact, and the DNRC has not been our friend. Do not allow their bias to deter you from correcting and protecting your water rights as is necessary.
You may want to consult an attorney to make a determination as to the steps you need to take to correct your water rights if they are in error, or to protect what is rightfully yours.
In Closing
We maintain that the United States, State of Montana, and the CSKT are aware that very large numbers of Walton and Secretarial water rights owners exist within Flathead Reservation boundaries. It is not clear to us, just how many of them have been properly claimed with the Montana DNRC.
It is a certainty that the Flathead Water Compact will diminish and potentially negate these extremely valuable water rights via the compact creation of TIME IMMEMORIAL “tribal reserved water rights.” This overreach by the negotiating parties must be objected to in the Water Court.
Rather than working to provide a water settlement for the benefit of all water users in western Montana, and making the public aware of the value of their rights, the parties to the compact chose to ignore their existence, while at the same time striving to find a means to diminish them under the guise of a “federal reserved water rights settlement.”
The compact will also serve to devalue the lands upon which these water rights are appurtenant, and politicize and defer all future growth and development to an adversarial tribal government, with the help of their cadre of federal attorneys and agencies, and the assistance of Montana’s compromised Congressional Delegation.
Through its everchanging policies with respect to the United States treatment of Indians, both tribal members and non-Indians have suffered.
Instead of embracing the principles upon which our country was founded, Congress changed horses midstream, reversing their efforts to fulfill the terms of the Hellgate Treaty, and the Flathead Allotment Act which opened the reservation to allotment of lands to individual Indians, and homesteader settlement.
After the laws and history of the Flathead Reservation have all been rewritten, it will be as though we never existed. We will be effectively canceled, if you will.
The parties to the compact have greatly divided generations of friends, neighbors, and family members in order to serve their own overreaching agendas.
The United States, State of Montana, and the CSKT, have placed the full weight of their bloated and overreaching governments upon the side of their own interests, to the detriment of the people whose lives and livelihoods rely upon their water and property rights.
Our respective “representative” governments left the fate of western Montana property and water rights, and the security of the land patents to the whims of an ignorant, negligent and / or deceitful, state legislature, Attorney General, and Reserved Rights Compact Commission.
They all demonstrably failed, and we will soon be at the mercy of activist judges and the courts.
At what point will enough, really be ENOUGH?
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