Colville Confederated Tribes, Plaintiffs-Appellants, v. Boyd Walton, Jr., Et Ux., Et Al., Defendants-Appellees., 758 F.2d 1324 (9th Cir. 1985)
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William H. Veeder, Washington, D.C., for plaintiffs-appellants.
Richard B. Price, Omak, Wash., for defendants-appellees.
ORDER DENYING REHEARING AND THE EN BANC SUGGESTION
Before WRIGHT, SNEED and ALARCON, Circuit Judges.
The appellees' Petition for Rehearing, filed on February 8, 1985, is denied. The Suggestion for Rehearing En Banc has been circulated to all active judges of the court, none of whom has voted to have the appeal reviewed en banc. The En Banc Suggestion is denied.
SNEED, Circuit Judge, Concurring Separately:
I have no difficulty with the opinion of the court, 752 F.2d 397, except with respect to the conclusion that Walton is entitled only to sufficient water to irrigate thirty acres. The opinion rejects the trial court finding that "Walton exercised reasonable diligence in irrigating a minimum of 104 acres." See pp. 401, 402. This is done on the ground that the record lacks "sufficient evidence that the non-Indian owners preceding Walton had the requisite intent to irrigate any additional acreage." See p. 403, n. 4. I agree with this conclusion. I write only to point out that an Indian allottee who remains in possession of his allotment is treated much more generously. Such an allottee is entitled to sufficient water to meet his essential agricultural needs "when those needs arise." See United States v. Adair, 723 F.2d 1394, 1415 (9th Cir.1983) (quoting United States v. Adair, 478 F.Supp. 336, 346 (D.Or.1979) ), cert. denied, --- U.S. ----, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984). The full measure of his rights need not be exercised immediately. Id. at 1416. The court in Adair refused to extend this generous treatment to a non-Indian successor to an Indian allottee because of Colville Confederated Tribes v. Walton (Walton II), 647 F.2d 42 (9th Cir.), cert. denied,
However, the law of this court is adequately clear, and the existence of a contrary congressional intent sufficiently uncertain, to require that I concur in the court's opinion. Equal treatment of Indian allottees and non-Indian successors in interest of Indian allottees would better serve the interests of justice.
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- U.S. Court of Appeals for the Ninth Circuit - United States of America, Plaintiff-Appellant, and Spokane Tribe of Indians, Plaintiff-In-Intervention-Appellant, v. Barbara J. Anderson, James M. Anderson, Et Al., Defendants-Appellees.
- U.S. Court of Appeals for the Ninth Circuit - Colville Confederated Tribes, Plaintiffs/Appellants, v. Boyd Walton, Jr., Et Ux, Et Al., Defendants/Appellees., 752 F.2d 397 (9th Cir. 1985)
- U.S. Court of Appeals for the Ninth Circuit - Colville Confederated Tribes, Plaintiff-Appellant, v. Boyd Walton, Jr., Et Ux, Et Al., Defendants-Appellees, and State of Washington, Intervening Defendant-Appellee. United States of America, Plaintiff-Appellee, v. William Boyd Walton Et Ux, Defendants-Appellants, and State of Washington, Defendant. United States of America, Plaintiff-Appellee, v. William Boyd Walton, Jr., Et Ux, Defendants, and State of Washington, Defendant-Appellant., 647 F.2d 42 (9th Cir. 1981)
- U.S. Court of Appeals for the Ninth Circuit - United States of America, Plaintiff-Appellee, and Klamath Indian Tribe, Plaintiff-Intervenor-Appellee, v. Ben Adair, Et Al., Defendants-Appellants, and the State of Oregon, Defendant-Intervenor-Appellant., 723 F.2d 1394 (9th Cir. 1984)
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