Legal Argument & Treaty Evidence

Why We Challenge Ecology's Tribal Trust Water Rights Theory

POWWRA contends that the Department of Ecology's assertion of senior federal "tribal trust" water rights for corporate tribal governments is legally unsupported. Our position is based on:

  1. The actual text and history of the Point Elliott Treaty (1855)
  2. Federal law governing Indian allotments in severalty (individual ownership)
  3. Supreme Court and federal court precedent on reserved water rights
  4. Washington State's constitutional water code and jurisdiction

The Central Question

Does the Point Elliott Treaty of 1855 create senior federal water rights for corporate tribal governments on "trust lands" that override state water law and individual property owners' historical well use?

POWWRA's answer: No.

1. The Point Elliott Treaty (1855) – Allotments in Severalty

"The President may hereafter, when in his opinion the interests of the Territory may require, and the welfare of the said Indians be promoted, cause the whole or any portion of the lands hereby reserved to be surveyed into lots, and assign the same to such individuals or families as are willing to avail themselves of the privilege, and will locate on the same as a permanent home..."

— Point Elliott Treaty, Article 6

Our interpretation: The treaty contemplated individual allotments to specific Indians and families, not collective tribal government ownership. Water rights, if reserved, attached to those individual parcels, not to a tribal government entity.

2. Federal Allotment Acts – State Jurisdiction

Congress formalized allotment through:

  • General Allotment Act (Dawes Act, 1887): Authorized allotting lands to individual Indians in severalty
  • Burke Act (1906): Allottees who received fee patents came under state and territorial laws
  • Public Law 280 (1953): Extended state jurisdiction over Indian lands in Washington

3. Supreme Court Precedent

Winters v. United States (1908)

Established reserved water rights for specific reservation purposes. Our reading: Applies to land actually reserved at the time of reservation, not all lands later claimed as "tribal trust."

Goudy v. Meath (1906)

Allottees' water rights determined by state law once land is allotted.

Arizona v. California (1963)

Reserved rights tied to specific purposes and boundaries at time of creation.

Why Jurisdiction Matters

Do Ecology and tribal governments have legal standing to assert federal senior water rights on the lands in question?

This requires proving which specific lands are validly held in federal trust status and whether the Point Elliott Treaty actually reserved water rights for tribal governments versus individual allottees.

Case Law & Authority

  • • Point Elliott Treaty (1855), Article 6
  • • General Allotment Act (Dawes Act, 1887)
  • • Burke Act (1906)
  • • Winters v. United States, 207 U.S. 564 (1908)
  • • Goudy v. Meath, 203 U.S. 146 (1906)
  • • Arizona v. California, 373 U.S. 546 (1963)
  • • McCarran Amendment, 43 U.S.C. § 666
  • • Public Law 280 (1953)
  • • Washington State Water Code, RCW 90.03 and 90.44