United States v. Ahtanum Irrigation District

POPE, Before LEMMON and CHAM- BERS, Judges. Circuit POPE, Judge. Circuit brought This is a suit the United States as trustee for the Yakima tribe Indians to quiet establish and title to the right Indians’ use the waters of Ahtanum Creek in the State of Wash- ington, alleged to have been reserved treaty of June 1855 between the United States Confederated Tribes of Yakima Indians.1 treaty by This was the which the Yakima Indian reservation was set aside for the Indians. The in defendants the main are the non-Indian owners of lands out- side the reservation ap- who had propriated or claimed to the use of the waters of the stream which formed boundary northern of the reserva- tion.2

Holding that the United States had not proved it, otherwise, trustee or any right, title or any interest Creek,3 water of Ahtanum the trial court appears treaty 1. at 12 The Stat. (1). 951. It 3. Conclusion plain- of Law. “That proved ratified the Senate March tiff has not that the United otherwise, or any trustee right, Also named are certain so-called “Class any title or interest water of Ahtanum Defendants” who are Three individual appurtenant irrigable Creek as land within owners the In- Reserva- appurtenant reservation boundaries and who are tion as a whole or any parcel parcels interest successors or collection of located patented any whose allotments were allottees thereon virtue reservation, ex- simple subsequently press implied, Treaty in fee sold to in the of 1855 defendants. otherwise or at all.” complaint no there was court held: dismissed the action and rights by merits. on the ;4 2, Treaty of 1855 event treaty complaint sets out gave of 1908 the white owners whereby of land tract a certain own;5 nothing already did Washington Territory set then adjudication courts that an use of and reserved for the aside Washington de- in 1925 State abiding place Yakima tribe as home termining land- of the white alleged view Indians. Indian reservation owners outside treaty, purposes intention its of the the percent flow of the 75 of the natural to give encourage up their Indians to to the “encouraged” by stream, had the soil, and the habits and to till nomadic States, and thus the United the United of the of arid character in view the also thereby from claim- barred States which re- lands within the reservation ing any percent.6 this 75 Ac- of cultiva- quired for successful cordingly, concluded that the court the tion, treaty operated suf- to reserve the be dismissed. cause should the Ahtanum Creek waters of ficient court view of the action taken the present needs, and future. Indians’ both below, apparent it con- is that we must alleged complaint on further following questions, all of sider the May 9, 1908, “in violation of direct the by * * * which are raised the Government’s rights the reserved to specification of errors. tribe”, engineer Yakima then chief the any rights First, Affairs, irrigation, of were to use the of Bureau of Indian any waters Ahtanum re- of the of Creek entered into certain by Treaty the of 1855? If there served white water users whose lands were sit- none, question then of reservation, were the val- uated outside where- of idity of 1908 need by were to have and be entitled be discussed. percent of Ahtan- of the natural flow 75 Second, by if it be concluded that um and the Yakima Indians were Creek treaty rights of of to the use remaining percent of that to have of waters Ahtanum Creek were reserved added natural flow. There was stream’s Indians, for the benefit of the were the adjudication prayer for an rights any greater thus reserved than rights parties to the use of the percent of natural of flow the waters, prayer stream rights Indians, ? If the of stream agreement May 9, adjudge this reserved, percent did not exceed the and of “no force and effect”. be invalid owning That ants. defendants lands north (4). plain- “That of Law Conclusion infringed upon of the Ahtanum have proved the Yakima In- have not tiffs any rights States, water United Nation, Tribes of Confederated Tribes, Indians, or any Confederated individual In- al- Indian ward or Yakima proof dians under any person owning occupy- herein.” lottee, or or ing Reserva- land on the Yakima opinion [the 5. “We are Secre- any any right, interest title or tion nothing recognize tary] did lim- by in Ahtanum Creek virtue water practice upon by usage itations set Treaty any in the reservation on the water confirm by fact that Reservation reason of the grants to the owners outside.” Creek, or Ahtanum because borders F.Supp. 818, page 835. applica- appropriation any and beneficial (7). Conclusion of Law “That in 1926 any Creek.” of Ahtanum Washington, State which then jurisdiction over had waters of Ah- Finding “That there was fact No. 5: adjudicated Creek, tanum claims Ah- no reservation ' Creek, Treaty of the flow of Ahtanum ei- 75% Creek tanum proceeding binds the implied, United express States or ther portion Tribes, claim to that bars to the Confederated flow.” adverse to defend- individual ap- firming, opinion allocated to them it said: are of “We question pear treaty that no serious can that it was the intention of the agree- validity river, reserve sufficient raised as to waters of Milk below, as was said ment. the court ‘to insure to the Indians the means wherewith to Third, reserved for the if the irrigate their and that was so farms/ treaty of the ex- respective parties understood by the United tent and size claimed treaty signed.” at the time it was say, to sufficient attempted distinguish efforts to needs of the Indians waters for the they one, Winters case from this are without might future, we then exist force.7 validity necessity consider the must agreement, for it force of true treaty that the Yakima present needs of the is conceded that the described the Ahtanum as the north require sub- Indians are sufficient boundary reservation, whereas stantially the whole flow of the stream. boundary Belknap Fort reserva agreement purported deprive If the tion in the Winters case was described as actually which be- the Indians longed beginning point at a in the middle of the them, then that circumstance main channel of Milk River. But a tract determining in must be considered nonnavigable land bounded a in ex- whether Government officials stream is deemed to extend to the middle ecuting power and au- it exceeded their Entus, the stream. Hirt v. 37 Wash. thority. 2d sug P.2d 620.8 The gestion that much of the water of the Treaty That the of 1855 reserved originates Ahtanum Creek off the reser in and to the waters of this significance. vation is likewise no plain stream for the is from the thing same was true of the Milk River in decision Winters v. United Montana; and it would abe novel rule 564, 207, 207 U.S. 28 S.Ct. L.Ed. of water riparian law to limit either the Apart treaty from the date of the dis proprietor appropriator or the to waters case, cussed the facts there are originated upon which his lands or with practically identical with those which appropriation. in the area of Most treaty attended the of 1855 portion streams in this country case, Yakima tribes. here, In the Winters originate in the mountains and far from the reservation was created the lands to which their waters ultimate treaty; part the reserved lands were a ly appurtenant. become larger of a much tract which the Indians right significance occupy; had the No early and the lands attaches to the irrigation treaty were arid and date of prac plain without this for the record is tically irrigation valueless. that some Winters case the Ahtanum begun designated the Milk River valley was had this before 1855 in boundary northern which the Indians participated. reservation. had It court, This decision, 740, early its is true that this F. use was on the Supreme which the Creek, north side they Court af- was but then suggestion treaty agriculture. teach these Yakima Indians What Belknap Why, they differs from that of the Fort In- for? could not raise a bean date, irrigation.” dians because of its earlier without when P. Senate Docu- irrigation common, was not so ment with- referred to infra note 11a. noted, out As force. hereafter Indians making boundary 8. The course of this some use of the Ahtanum described treaty in the “Commencing waters for as follows: before 1855. Unan- Biver, on the swerable is the Yakama statement at a witness mouth of studying Biver; before the Attah-nam westerly Commission the Ya- thence rights: “Among along things, kima river other said Attah-nam forks; Biver to the instance, Department along was thence tributary the southern * agricultural * to maintain an Mountains; school the Cascade *.” shortly after the Winters decided sides, we can- occupancy of both had under- there agreed This was they decision. when not assume taking apply they that decision. follow and Creek side of the to the south move page said, 832: “What 161 F. wa- to use all surrendered required for of water case, amount will be must we inAs the Winters ter. may purposes determined negative questions answer time; accuracy at this give up with absolute they this ? posed: “Did there government policy reserve occu- of their area reduce the Did may be of Birch creek whatever water give up which the waters pation and only pres- reasonably necessary, adequate?” As it valuable made requirements, is uses, future but for case, ent said Winters clearly treaties terms of the within the L.Ed. 340: 576, 28 S.Ct. very Supreme Court as construed aof was a reservation “The court’s de- case.” The trial the Winters larger Indians which the tract much case, court af- use, in that which cree occupy enjoined firmed, interference with adequate the habits presently quantity di- specified peo- of water uncivilized nomadic of a wants ple.” agreed used for benefit to verted When on the dians reservation. to be- This was change habits and nomadic their inches, but people, us- contained decree pastoral and civilized come 1666% a further provision area, to the effect that ing it must the smaller protected the Indians were to be in Supreme re- mind, as Court in be borne spect to their future increased needs. very treaty, treaty said of this that “the portion This of grant the trial court’s decree rights Indians, not a was to the expressly approved by right was in grant this them—a following language, page 161 F. granted.” the those not reservation objected “It further 835: is de- Winans, that, provides of the Circuit cree Court 49 L.Ed. 1089. S.Ct. requirements whenever the needs ahd treaty Before the right the Indians had the complainant for the use irrigating waters only use not of Ahtanum creek of Birch and other of all Creek but other streams in a vast purposes upon useful the reservation Indians area. The part did surrender right by exceed the amount of water reserved of their Ahtanum use purpose, the decree regardless the com- Creek of whether the Creek plainant may apply to the court for a boundary became or whether it modification of the decree. This is en- entirely within the reservation.9 flowed tirely complainant’s rights in accord with brings us to a discussion of the This adjudged by Having the decree. de- quantum question of of waters reserved. that the termined Indians on the reserva- quantum obvious is not paramount right have a tion to the wa- being use made at the measured creek, Birch it ters follows that treaty reservation was made. time the given permission to the defendant merely pres- was not reservation the excess over have amount wa- Any for future use. other con- ent but specified in the decree should ter be sub- rule in the case Winters struction modification, ject wholly should condi- unreasonable. This mat- directly the reservation at passed upon tions on quire time re- Conrad in ter Cir., such modification.” v. United 161 F. Inv. Co. “ provision: treaty right proposi- ‘The exclusive ease settled Winters 9. The taking streams, treaty’s fish where failure to use the through running bordering signifi- “irrigation”' said res- was without word ervation, secured is further to said eon- an treaty recognized as to what As indication canee. tribes and bands of federated as exclu- streams ” * * (Emphasis added.) following sively *.’ note the for the treaty- cated, making exactly contrary At the time was held case, plain case, supra. the Conrad construed in the Inv. Winters Co. Be- irrigation Irriga- then be- tween 1908 there ing or no and 1915 was little engaged As Su- tion carried on the Indians. Service was the work of constructing preme out, extending pointed irrigation that time until Court sug- people. As was canals and were nomadic ditches with headworks and gested by court when that case was means of diversion this so that 1915 the “might here, known Indian the Indians lands the reservation sus- ‘irriga- meaning ceptible of the exact of the word from Ahtanum treaty.” approximately tion' had it been No Creek amounted used thought agree- Had even the Winters case acres. one there been no 1908 ment, plain use of the Indians it seems as of 1915 it reserved should limited would have the water to be said that the re- quantities treaty at the date of the used served treaty. implied looked use of water from stream sufficient supply needs of the Indians in future the needs of this 5000 acres. change they would their nomadic when complaint When in the Winters tilling accustomed habits become approximately case was filed 5000 acres soil. being irrigated upon of land were then Belknap Fort reservation. The wa- plain It is from our decision ters were diverted and distributed case, the Conrad supra, Inv. Co. carrying means a canal with a ca- right paramount of the Indians to the pacity of water, 5000 inches of and such Ahtanum Creek not lim any giv required amount water was for the ited use the Indians at requirements then needs and of the Gov- en date but this extended to the ernment and the Indians.10 The rec- ultimate needs of the Indians as those ord here shows that an award of suf- requirements grow needs and should to irrigate ficient water to the lands served keep pace development with the In by irrigation Ahtanum Indian proj- agriculture upon the reservation. system completed year ect 1915 Some effort is made here to that assert substantially would take all of the waters the reservation of waters for bene of Ahtanum Creek. appear It does not fit of the Indians must be limited to that waters decreed to the Indians quantity actually amount or used bene operated the Winters case to exhaust ficially by period the Indians within some River, the entire flow of so, but, the Milk if might of time or within what the court merely is consequence that of it Thus, find be reasonable time. is it being larger stream. As the Winters argued that since at the time of 1908 case, Supreme Court, both here and in the the area land on the shows, the Indians were awarded the irrigation reservation then under paramount right regardless quan- through ditches did not ex remaining tity for the use of white acres, rights some 1200 ceed that the of settlers. Our case, Conrad Inv. Co. su- were Indians limited those needs. pra, held that ap- what the non-Indian propriators may only have is the excess argument, note, shall This we later over and above the amounts reserved for basis for a as the contention is used plain Indians. It adequately provided if the 1908 rights since their amount awarded the United States for limited to the use benefit of the this the Indians in the Winters Nothing equaled in acres. Winters 1200 case case entire flow the Milk any any River, other decided case or in lends the decree would have been no dif- argument. support such an As indi- ferent. facts, 10. See statement of F. 143

328 speed appropriate Irr. funds River sufficient United States Walker necessary Dist., Cir., complete another 104 F.2d .system by by 1915, applied the doc- than case in which this court rather recognized had thus lost Government trine Winters case rights- right upon reser- forfeited the reserved for of the Indians involved, to use of wa- Indians. vation there reasonably necessary ter to the extent We next court’s con notice the supply their needs. The Walker Riv- adjudica clusion that a 1925 state court one, early er Indian reservation was an respective white time, in 1859. as this initiated At landowners between themselves pointed out, Indians “unskilled Creek, percent of the flow of Ahtanum necessarily farming, art had been to them in allotted * * progress ex- make *. The slow agreement, proceeding awas “which might the use of the stream tent which binds the United States and bars necessary only demonstrated could portion to that This claim the flow.” by experience.” page 104 F.2d at proceeding in In refers to reviewed the Rights acres 1886 some 1900 rate At Creek, re Water Ahtanum and at the time were under cultivation 84, 245 non- P. 758. There the Wash. Indian, this area had not substantial- of the trial of waters non-reservation users ly increased and the number of procured ad Ahtanum an Creek increasing. This court ac- was not cepted rights. judication of their relative report esti- the master’s and his party States was not a “as of the Government mate the needs although suit, pretrial order re as the years’ experience,” demonstrated knowledge cites, adjudica award and made recommended op proceeding and tion was it had irrigate acres. water sufficient appear portunity to therein decided whether, unnecessary to It is consider against require It clear to ex it. is too agreement, the had rights no 1908 there been position de the state water government as trustee cree could no effect constantly Indians would have Rights reserved States. of the United following growing years ones subject are not such as this treaties irrigable within area 1915 had the law, appropriation nor state 'to under increase. continued to dispose power them. the state purposes this case for the sufficient Oregon, of Power v. State Federal Comm. rights adjudication say of the an 99 L.Ed. 75 S.Ct. 349 U.S. in and to the waters of the 1915, would nec- of Creek as of Ahtanum essarily brings question a This us to the the United States crucial award case, validity question ir- by Indian of the of needs the the measured rigation project —the of the 1908 that date. and effect at August Munn, reservation of one David On assertion that The Superior plaintiff, must filed in the the Indians as Court of the benefit for waters County, quantity Washington, ac- of Yakima plaint a com- amount the to limited pe- against beneficially some H. Redman and others. within W. tually used might alleged plaintiff complaint find a The to be the the riod by rights accompanied time, a had to the waters of Ahtanum reasonable Creek; limita- suggestion a reasonable time defendants named were wrongfully diverting no in 1908. We find water the terminate prayed Creek, injunction and for an with the deal here We this. for basis against employee Redman them. was an trustee for as the Government of conduct say and was an Indian of the United States to to not for It is us Indians. the engineer. Irrigation Service The of the Govern- legislative branch the process then in was dian Service of Congress move with not did ment bringing purpose enlarging the users for the of about ditches on of in- to an a of the the use was as settlement Redman reservation. sued upshot approval the Ahtanum of this of At- water. dividual. With agreement was dated torney General, Attor- the execution United States May 9, Washington, United ney Spokane, between the entered attorney acting through large Redman, number appearance Code and not attorney from Ah Government, of named white users water but as for the filing a tanum Creek on lands located outside led to of this suit Redman. The gist correspondence reservation. volume considerable reading Attorney I was in its article as follows: and the United States between agrees party part Attorney “The the first General and between its claim waters Secretary officials and to the Interior and the limit define Irrigation Coun- Ahtanum Creek its tributaries Indian Service. twenty-five percent (25%) plaintiff the natural offered dismiss the sel Creek, party flow of said a bill case if United States would file relating agrees questions its equity second in rights limit define settle aggregate total and claim to waters of Ahtanum Creek. the said seventy-five by equity prepared per (75%) cent Such was a bill stream, approved Attorney of the said natural flow said surrendering Attorney party each General. For some reason hereto and con ceding record, party apparent from the not the other here October, filed,11 part of in the latter claimed in the said ex tofore waters in Superintendent of Indian cess of the amounts herein named.” The Agency remainder was directed dealt Commission- begin of Indian Affairs to measuring er conferenc- methods of the water in es with who had filed the Munn creek, counsel diversion, manner of in adjustment headgates suit if an to see stallation of designa and the of the water could made use out signed by tion of a ditch master. court. Code on behalf of the United States and spring Engineer attorneys of 1908 Chief in fact for the white Irrigation landowners, Code Service and on June 1908 it was go approved by was directed to Pierce, the reservation Frank First Assist confer awith committee ant of white Interior.11a August 8, 1907, 11. On south side and the white settlers on tho requested copy the Interior north. He bill. estimated that at time Attorney irrigated This was furnished tho 1500 acres Gen- on the Indian ' August days later, eral on 10. Two side 5500 acres on side, the white August 12, Attorney attempt General wired and he recommended an to ad Attorney Spokane just the United States on tho basis one-third the wa tolling him file the bill until fur- ters to the Indians and two-thirds ther notice. white settlers. He referred to the “re cent Montana decisions” and commented copies a.11 Tho record contains of the upon possibility of they the would be sus correspondence ficial within the by Interior Depart Supreme Court, tained the stated, but Department and between that layman, that, “to a it seems as between Department ment and the early of Justice re settlers, the white who have made lating negotiations the which led prior and beneficial use of the waters of the of this execution In boundary stream, Government, and tile guardian fall Mr. Code transmitted to the of the Indians’ water Secretary report investigation rights, so, of his had not done the latter would party on the reservation and of his views con be the to make restitution to the possible compromise cerning a of claims Indians.” respecting appear Ahtanum It does agree- Creek. not the Oode compromise His recommendation was a ment was submitted to law officers agreement involving opinion a division the wa of the Government an with respect validity prior ters based the relative areas then to its to its execu- irrigated actually by approval. the Indians on the and In contrast with his agreement agreement respect . and ments with While the of the execution validity, respect case its and to whether led Munn with to the dismissal of the parties corn- dispensed were or were not the time the thereto and with efforts rage therewith, plying continued to being prepare a suit on behalf file years.12 the next of the settle the water United States to agreement rights, brings the execution of this This us to the heart involved, lay primary question not matter at case and did serve to the whole argu- namely, validity rest, note, problem of for as we shall hereafter agreement up layman’s opinion law, to their side of the at- measuring 1908; torney represented works and land- who the white control agreement required by dealing Code, later testi- devices had owners whites, provided my not been In- fied: “I advised clients that the superintendent he understood that wa- land was entitled to sufficient up agree- obliged irrigate to live make the was ter to it. We tried Secretary bargain white users ment either since the with the best we could comply. Interior, did.” Senate failed and we Sess., Cong., 2nd Dec. Document 63d Engineer charge the Chief p. Irrigation of Indian recommended to the Commissionerconsideration of action to an year In- 12. In 1912 individual Yakima adjudicate rights in Ahtanum Creek. Attorney began writing Gen- dians petitions adjudi- requesting Further urging a suit to institution of eral cation were received from and on Indians rights both Indians determine July 5, 1927, the then Commis- in Ahtanum Yakima River and sioner of Indian Affairs wrote to the agree- They asserted that Creek. ment mentioned Superintendent of the reservation refer- limiting the Indians ring to the decision of the court in the of the Ahtanum Creek one-fourth agree- Winters case to the Code agreement limiting the other “However, ment stated: and. Ya- from the to 147 cubic feet of water provisions agreement in that robbery amounted to kima River never observed or carried out and since defend- “damn shame was Indians and inception was in its noth- poor stealing Indians.” ants ing understanding than more a tentative Attorney Gen- was referred matter eral to disputed for use until such time as the Secretary who Interior rights might be determined proceedings recommended court, view of the failure of there was because not be instituted should parties provisions, to observe its of- this which, Congress pending if a bill regards fice said as of no ef- passed, to the Yakima restore “will whatever in fect the matter of deter- they to which the water dians mining the water to which the In- Treaty (At- of 1859.” under the entitled superintendent dians are entitled.” The relating correspondence ato tached was directed to re- see the Indians Secretary’s prior limitation quantity ceived water which River which the Yakima suspended order needed. This at the the In- than was “less states request Washington, of Senator Jones of fairly and reason- entitled dians are but there ensued and continued for sev- need.”) ably years eral thereafter extensive corres- proposed material, bill That pondence Irriga- the Ahtanum between. A Ahtanum waters. refer to the did Department signed Supervisor tion District and the state memorandum Justice Hydraulics Olympia, Washington, gone recites, in- “I “C.S.E.” Department hand, the one and the care with considerable matter Interior and of Indian Af- Commissioner other, respecting alleged legal impressed sound- with the amand fairs, on the ex- presented argument ness diversions of the waters of Ahtanum cess De- the Interior Yakima suggesting Creek, and responsible ac- for partment whatever investigate of the Interior undertake to been their to detrimental with a view to a settlement of con- * the * ad- were The taken dispute. tinuing pending proceedings in- would be no that vised correspondence , The shows that the time. that at stituted Superintend- users constructed a dam 2, 1918, white across the November On Creek; that this was torn Ahtanum out the advised Yakima the on ent Commissioner police by Bureau and Indian that white Affairs prevent replacement. living to its along stationed the Ahtanum users

g3| dif- the This is a most ment and fixed duties the of those en- agreement gaged question. ficult The Code in its activities.” United States practically precedent.13 Birdsall, 223, 231, one without No v. 34 S.Ct. statute, departmental 512, agreement 514, executive order 58 L.Ed. 930. The regulation any provision approved by made for was that the Assistant First thing. long Nothing Secretary sort of There is no con- Interior. practice depart- tinued approval the executive turns the fact by Secretary ment Government from which con- was executed an Assistant himself,- gressional acquiescence spelled by Secretary could be rather than Nothing way out.14 can found in be Under like circumstances it has been usage, established “which con- an held act of an Assistant Secre- Depart- tary presumed stituted the common law be must to within was to 1932, This matter called the attention the season of rec- Attorney by As- General First ommended that the institution of the suit Secretary adjudicate delayed. of the Interior Dixon sistant to 25, January 2, Secretary 1933, letter dated 1930. The On October Attorney requested was Attorney General advised that there Interior Ickes tbe action, proceed in- was for immediate and an need General to with the suit to settle Attorney vestigation was The asked. the conflict over the Ahtanum Creek wa- investigation rights. Washington made General had the Federal ter Senator Dill Investigation Bureau wired the Commissioner of Indian Af- 30, 1930, suggesting proposed December he on transmitted fairs suit report investigation off, copy the Secre- be called a transmitted tary of Secretary the Interior. Attached to the re- the letter to him from the copy port Irrigation a letter from a the So- urging Ahtanum District Department Interior licitor for the dated such non-action. June, 1938, June tary, addressed to the Secre- Attorney expressing requested authority view that Driver to institute adjudicate of 1908 valid and Code a suit to to the use Secretary authority within the the Interior of execute. The letter of of water of Ahtanum Creek. This was proposed followed Ms submission of a signed transmittal, by Attorney complaint purpose. General bill of for this Thene Mitchell, Secretary D. stated: “I am not William followed letters from the any authority authorizing Irrigation aware of the Ahtanum District to Sena- Secretary urging of the Interior officials tors Schwellenbach and Bone them steps prevent Mm in- of the Government under to enter take the institution of compromise a settlement of to versies contro- suit. This letter was transmitted mentioned, Attorney such as are here Senators General. By July the same he effected a com- whether promise Senate 18, Resolution dated 1939, Attorney request- suit or otherwise.” a General was stay May proceedings ed On First Assistant until Secre- Secretary tary Attorney report of the Interior Dixon wrote to could General feasibility parties supplementing on the that none of fied in be satis- supply Valley. of water in Ahtanum until a court decision had been matter The Secretary dispute request- reported rendered, of the Interior on July 21, 1942, pursuant Attorney tbe General to institute ed a Senate Resolution, proposed project quiet title to the of Ahta- suit procure Attorney additional water was not num Creek. General di- feasible. Attorney tlie rected Spokane only prior 13. The instance of such an prepare complaint a bill Secretary purpose. There followed tele- by Secretary was that made Hitchcock in grams from Jones to the Presi- Senator 1905, agreeing to limit these Indians’ imperative stating that it was dent rights to Yakima River water. is re- stopping any judicial be issued orders proceeding ferred to infra. transmitting copy of telegram from the Ah- 14. United States Co., v. Midwest Oil Irrigation advising District tanum U.S. 673; 35 S.Ct. 59 L.Ed. adjusted the cur- S., matters Sioux cf. Tribe v. U. 316 U.S. page season. of the In- rent 317 at 62 S.Ct. 86 L. terior, being working advised that a Ed. 1501. agreement respecting been reached had 332 ratify arrangement. scope authority the Secre It is con- which

tary contemporaneous upon Par tended that con- conferred his Assistant. 504, 500, States, applicable ish 100 struction of the statutes v. United Peralta, charged thereof, 763; those 25 L.Ed. with the execution 678; especially long prevailed, Norris when is 19 How. 15 L.Ed. it great weight. 77, 81, 82, 42 entitled to v. United 257 U.S. inquiring 9, 66 L.Ed. 136.15 S.Ct. thorough reports A search of made Secretary of Interior whether the Congress dealing the committees authority power en himself had appropriation with of the funds which agreement, is noted such an ter into years were used 1908 and between the granted time, powers that at that completing irrigation system 1915 designed Secretary Interior, so far to the provide with the 5000 acres as Indians and Indian cerned, were con Creek, waters from Ahtanum fails to general very were stated Congress any disclose real evidence that terms, as follows: limiting reliably informed was agreement of this Secretary In- “Sec. 441. anything, If con- 1908. charged supervision of is terior with appropriations a sizeable tinued irrigation system for such following relating public business suggest a lack * * * subjects: Third. Congress of information on the 441, 485. 5 U.S.C.A. dians.” R.S. § see agreement. § as to far as So Con- gress concerned, Affairs there is no evidence “The Commissioner-of shall, whatever the members had thereof under the direction the Secre Department agreeably information tary Interior, from the and may respect regulations par- Interior with to this such the President management prior year ticular prescribe, have the arising pur- and of all Indian affairs matters when a bill was introduced for the Indian relations.” out of R.S. approving pose ratifying § 2.16 now 25 U.S.C.A. agreement.17 § This was a bill introduced Washington suggested Senator Jones of may entitled whatever Approving Confirming Bill “A Con- the initial force effect of Apportionment For agreement, tract Waters subsequent official Creek, Washington, Ahtanum Between acquiescence in the Yakima Indian Reservation thereof, And Lands performance and administrative May 9, applicable interpretations North Thereof Dated 1908.” Ex- statutes hearings giving Secretary power approve tensive were held but the bill rough going18 agreement, reported. operated and was not in some manner appears provide merely Secretary and it for an Assistant for tbe 15. Provision performance of Indian lands connection of the Interior and Ms projects prescribed Secretary, with undertaken under duties the Rec- (1873), lamation Act. §§ made R.S. 5 U.S. (1885) 483. 23 §§ O.A. Stat. Hearing 17. before on In- Committee provided for a First Assistant Secre- Affairs, Sen., Cong., U. S. 72nd 1st tary. Sess., (erroneously on S. 3998 called S. 3988). Some of the witnesses at Appellees have cited statutes hav hearings Congressional before the Joint bearing upon authority ing a investigated Secretary Commission which agreement, to execute this Ti apportionment Hitchcock’s of Yakima §§ § 25 U.S.C.A. tle River waters mentioned Ahtanum authorizing prescribe investigation Neither “necessary regulations to secure rules and report nor dealt followed equal just distribution [of water] agreement. Report the Ahtanum of Joint residing among Indians such Congressional Commission, Document No. regulations reservations”, refers to Cong., 63d 2nd Sess. among them distribution Powers, United States v. 18. “Senator Did See Wheeler. the Indians selves. agree 83 L.Ed. 330. to such a division S.Ct. time? 305 U.S. effective until 1909 Jones. I do not think 382 did become Senator did — & Wapato project River and Yakima the Secretary Interior of the In 1905 up ato enactment added an waters. The make to had undertaken Hitchcock Secretary congressional disapproval of limiting agreement the flowing Hitchcock’s action. to Indians tribe same River, and which respect departmental in- Yakima in the With same portion of the terpretations question on another Sec- used of the Secretary to undertook retary’s authority approve power The reservation. to 147 cubic to agreement, Indians’ re- the material limit the 1908 the joint commis- 1913 a per 12, supra, second. feet ferred to footnote sufficient- that House visited ly the Senate no clear or sion indicates that there was respect hearings to with held area and Interior determination the definite action agreement consider and to Department, expression the and such as wrongs to claimed designed the Attorney gave, ques- correct to General office the by the Secre- agreement. done the validity have been tioned commission tary’s The early Attorney As Gen- provide con- to proposal ait before Secretary advised lat- eral ir- gressional additional action power approve no to ter had leases lands, as Wa- rigating known grazing purposes. Indian lands The adjoining the project, area pato opinion pro- was based (Document report The River. Yakima of what is now visions Title § 11a, supra) was that 337, footnote prohibiting “purchase, grant, lease, or feet Secretary’s of 147 second allowance conveyance lands, other or of title “was lands use of for the thereto, or claim Indian nation inadequate, in- and now made when Op.Atty.Gen. or tribe Indians.” said Indian equitable, unfair 238. While under date June in- of that result The Reservation.” Finney Interior Solicitor had ad- vestigation passage the Act Secretary vised the that “You 604, ap- August 1, 1914, 38 Stat. justified ignoring attempt- now be designed provide in propriating funds ing repudiate entered per second cubic feet addition 1908”, yet into as noted in footnote Secretary’s stipulation, mentioned Attorney supra, General Mitchell stated aggre- make an stored water sufficient any authority that he was not aware of second, per gate feet cubic of at least 720 authorizing Secretary rights of in satisfaction of this to be arrangement terior to enter into the men- Yakima River. Indians in the In addition tioned. to the 1927 direc- * * * “the Indians recited that Act tion Commissioner of Indian Af- por- unjustly deprived have been Superintendent fairs to the of the reser- Yakima flow of natural disregard vation to the 1908 they equitably en- River to being whatever, of no effect Commis- * * congressional This titled sioner Rhodes March recom- inquiry not con- enactment was report mended an unfavorable on the agreement, or with counterpart the 1908 pro- with cerned House of the Senate bill ratify waters; solely posing approve it dealt Ahtanum they agreement, individually. concerned, is, so far I am I do not think has through Hearings They (supra effect.” no force or acted council. had a pp. 18, 17) Henry note Senator J. Interior.” Scatter- good, a coun- Assistant did Commissioner “If Wheeler. always appeared my Affairs, request cil, Senator, contention of expressed personal committee his Interior boon view, contrary Secretary, had no Indian Bureau and the pass arbitrarily the bill should not go without but that and act suit ahead taking away consent, determine the wa- should tribal council’s started Attorney (p. giv- 48). General from these Indians and land ter or * * * ing white settlers. 334 States, 219, 234, 43 view of v. 261 also United U.S. He stated agreement 342, 622; S.Ct. 67 L.Ed. the Indian United Service working- supra, merely Dist., F. temporary under- 104 v. Walker River Irr. was a binding Government, standing page 2d 339. “The and not to be intended changed. which holds here for the as conditions interests as else future its drafting pending people, of a where in trust for all is referred to the He adjudicate ques- deprived complaint to ordinary to be of those bill interests thought involved, designed particu that until court rules tions adjudication complete larly private disputes should there was for over individual Congress ly pieces property; confirm

be no effort to have owned and of agreement.19 authority then While the Secre- 1908 ficers who have no at all' to ignored tary dispose property of the Interior thus of Government cannot recommendation, Commissioner’s their conduct cause the Government succeeding Secretary Interior, rights by on to lose its valuable their ac Attorney 1933, requested 2, quiescence, laches, October or failure to act.” proceed California, with the suit. See to General United States v. State 332 12, supra. 40, 19, note U.S. 67 S.Ct. 91 L.Ed. respect 1889. And in support completely to The record fails reservation, Indians in an Indian there appellees that there the contention special why prop is a reason Indians' interpre- administrative definite was erty may through not be lost adverse relating powers Acts tation of the possession, delay. This, laches or Secretary under to the effect that out, pointed 7,405.3 States v. United agreement one. a valid such an them Land, Cir., 422,. Acres of 97 F.2d appear question was it would Rather provisions out of arises of Title dispute constant debate one under U.S.C.A. R.S. which for § § Department itself. within the acquisition bids the any of Indian lands or of Secretary course, lacked if Of except title or claim thereto agreement approve power treaty or convention.20 place, neither he nor the first apparent It is thus we con- by subsequent could his subordinates necessity up- passing fronted with the by any approval, or action or or conduct question applicable on the whether the act, valid that which render failure quoted, by statutes above of their force initially No defense of lach void. alone, by any own terms es- unaided estoppel defend is available to the es or practice, tablished or rul- administrative as trustee here the Government ants regulation ing, interpretation Tribe, subject from is Light acquiescence implied which by approval Utah Power those defenses. Congress might implied, granted 408- v.Co. 791; Secretary power agree- Cramer L.Ed. make this 37 S.Ct. ordinarily Notwithstanding which would recommendation induce a court sympathetic plea Commissioner, to a Wilbur of laches would not have full force date stated to the House here. the same While the rec- prevented by plain- Committee, I am ord shows that counsel “Unless propose action, I to adhere to the tiff Munn offered to dismiss suit if Attorney He had no of 1908”. stated he the United States file legislation. proposed objection States, yet His bill on behalf of the United question filing lengthy notice takes on later occasions when the letter of such validity agree- proposed relating a suit was some of the Wash- listing questions dispute, ington repeatedly Senators ment but induced only questions “relate District intervene with the Secretary’s mind that a task contention is Government’s The management supervision and of agree power to to had no necessarily Indian affairs would deal percent of the others over to 75 hand with certain relations between the actually reserved the use waters dians on the one hand and their white specific Indians, in the absence neighbors manage- on the other. The statutory authority so to There do. any parcel necessarily ment of of land ,seem point in that di to cases degree involves some of occasional ad- Speaking reserved of lands rection. treaty rights justment of the of the owner in tribe, Indian of an use concerning adjoining relation to and 326, S., Tribe U. 316 U.S. v. Sioux landowners; arrangements for the loca- 1095, 1099, L.Ed. 86 62 S.Ct. boundary fences, tion and erection of Constitution said: “Since the Court repair and maintenance of those authority dispose pub places to are illustrations of this. fences More Congress, exclusively in lic lands specifically here we have of a case convey any power interest to executive’s boundary formed stream which be- traced to Con lands must be in these gressional the Indian tween delegation authority.” of its public lands, outside public and which Secretary’s pow said has been open entry by lands were to white dispose public lands must be toer rights settlers. the white general legis specific, found settlers to the use of the relating public lands as a whole. to lation rights subordinate to the of the In- Packing Co., Hynes 337 U.S. v. Grimes dians, were not nonexistent. 86, 109, A 93 L.Ed. 69 S.Ct. Until Indians were to able make use respect similarly strict view with to legal of the waters there no ob- Secretary’s prop power deal with the to stacle to the use of those waters rights erty individual Indians has white settlers. And after expressed.21 been completed, works were there quoted sections Neither would still be the of the non-Indian relating powers statutes Secretary appropriators any surplus make use agree- reference to makes available within the stream. Where the respect to division of waters ments subject waters of a stream are use bordering Indian reservations of streams by different landowners, very it- use white Indians and the as between self involves some accommodation be- general lan- sections do settlers. parties. tween the It is common knowl- secretary powers upon guage confer edge that, particularly early days, management. .supervision and of R.S. many streams in the West were used charges su- with the § by appropriators by riparian owners relating public pervision of business long before the stream had been 463 states that the R.S. § adjudicated, prior of Indian Affairs under the establish- Commissioner any machinery Secretary’s ment of direction shall “have the appoint- affairs, management of ment of all Indian masters. That sort of thing arising involves a out of Indian rela- dealing measure of matters be- tween water Authority users. tions.” man- implied theory.” land Cramer v. with the 21. “Since other acquired States, government 219, 234, United had consent S.Ct. occupancy as entitled them 67 L.Ed. 622. Cf. such Arenas v. against possession States, the de- United 322 U.S. retain S.Ct. agent gov- fendants, L.Ed. no officer authority to deal with the had ernment things done, age normally compre- property can which must be defined, anticipated dealings neither be nor character. hend of this prop- which are essential to the agreement was At the time the 1908 government.” er action of the begun made, disputes appear as proper and distribution division principle frequently This ex- Of of the waters of Ahtanum Creek. pressed in relation to the acts of the open then course it was Secretary of Interior or the Commission- although land- not to the white er of Affairs. Thus Rainbow proceedings owners, de- to start court Young, Cir., 161 F. signed adjudicate Judge speaking through Circuit litigants. this court It is the view of citing Devanter, after Van within that it could not have been Macdaniel, supra, said: v. Congress contemplation of that the Sec- general opinion very “In our gen- retary, with the vested he was language of the statutes it makes manage- supervision power of and eral authority quite plain that con affairs, of matters of Indian and ment ferred the Commissioner of relations, arising not could out of Indian Affairs was intended to be arrangement prac- peaceful for a make a sufficiently comprehensive to en this of the waters of of use tical mode * * * him, manage able Supreme early As stream. affairs, Indian ing and all aris matters Macdaniel, States v. Court said United relations, out of Indian with a 13-14, 8 L.Ed. 587: Pet. just regard, merely not knowledge practical ac- “A public, and welfare of the but also great depart- tion of one and welfare government, con- must ments of duty Indians, and to the of care and every person, head of that the vince owing protection to them reason department, in the distribution dependency of their state of and responsibilities, its duties tutelage. And, while there is no compelled his dis- to exercise often relating specific provision to the ex is limited in the exer- He cretion. of collectors from Indian clusion law; powers his cise of agencies payments times when follow, it does not statutory provision that he must show being Indians, made to everything does not commission fpllow government does. No could be he authority er is without to exclude principle. To administered such * * them *.”22 regulate, by law, attempt If, believe, ap as we it was every part minute movements general propriate pow and within gov- complicated machinery of granted, Secretary ers ernment, un- would a most evince working arrange ignorance Interior to enter into a subject. pardonable on the great ment as how the waters of Ahtanum outlines of its Whilst may Creek were to be out, handled and distributed be marked movements hand, imposed between the Indians on on the the one limitations exercise other, the white powers, settlers on the there are numberless of its forget historically with the individual Indians wbo are de- do “We pendent upon traditionally the Government of the Interior tute- * * * lage protection. selected as the executive arm the dis- charge duties, of these he acts to execute de- as su- the Government pervisor, agent, policy guardian, Congressional with the and trustee of clared property, such, the Indians and his and his subordinates whether As he dians. responsibility discharging the nature of lands or restricted funds.” have obligation Anglin Stevenson, & to its In- of the Government Cir., respect, wards, 145 F.2d he is certiorari denied discretionary powers given 324 U.S. 65 S.Ct. to deal L.Ed. 1405. wide likely appear. does not seems whether question arises the force and broad of that de- void and reach purpose becomes for this made powers of cision beyond was not realized Mr. Code said be must arrangement Department made one else Interior Secretary if the 11a, supra. improvident far at that date. See footnote so one an to be turns out concerned. the Indians are opportunity study With an history rule, as it has Winters said, implied As we nearly years, stood now for we can of this stream readily perceive was re thereof as to so much extended Interior, acting did, im as he provide for the reasonable quired to bargained providently away extremely merely as those needs of rights belonging valuable to the Indians. but as needs existed Perhaps the feature of the whole matter when measured worthy apparent most of criticism is the completed. we system If had been ditch Secretary, failure of approv before 1915 need extended assume ing arrangement, legal such to obtain substantially Ahtan the waters advice either from the Solicitor or from whether, question Creek, is um then the Department Justice, as to the conceding Secretary had the validity advisability pro agreement power an for some to make posed Viewing this con division, he can it be said that workable improvident an disposal tract agree give power had the justly of that three-fourths which be percent of which settlers 75 white longed Indians, it cannot be said might in 1915 and need out of to be thing character with the sort years subsequent ? Congress Depart which and the plain doing The record here makes of the Interior ment throughout has been gave only proposed person history who sad of the Gov Engineer dealings study was ernment’s with the Indians and largely Code. The was drawn and the Indian history tribes. That only consulting signed, supports without very the statement: “From the Indians, legal beginnings but without advice. His nation, of this the chief is reference to the “recent Montana sue around which policy de- federal Indian (see 11, supra) been, cisions” footnote has revolved has shows not how to as that he knew of similate the Indian Winters case. whose nations lands usurped, Supreme Whether he knew that we how best to transfer January had affirmed the Indian and Court case on lands resources to non-Indians.” preceding agreement, 6 execution of the 23 long Quotation from article Because it has on “The been the law that Dorothy granted by treaty Raid on the Reservations” there are few Mark, Harper’s Magazine, March, Congress obliged Van de Indians which to re 212, (Vol. 1270). spect, Hitchcock, 1956 Done No. The author Wolf v. 187 U.S. history dealings 553, 216, 299, gen sketches of our 23 S.Ct. with 47 L.Ed. illustrating February 1887, with eral Allotment 8, references Act of examples 331, open 25 such as the Indian § Removal U.S.C.A. was not to chal Act, 411, lenge courts, 4 Stat. the successive removals and hence the In obliged accept Cherokees lands coveted dians allotments man., happened farming and what so small white livestock was im practical under the reservations General Allotment and the Indians often reduced leasing Act of illustration of 1887. Another this the allotments to non-Indians. pattern giving surplus same so-called unallotted lands open end stick is short of tho found were thrown to white settlers way prices. sold example, in which Indian timber is sold for at nominal See for prices, recently 302, relating less market com than Stat. to the Flathead upon Squire Capoeman, particular v. Reservation. a mented When allot 1, 4, 611, happened valuable, 76 S.Ct. footnote 7. ment U.S. the Secre- expres took to make contract which this sanctimonious The numerous away Congress, the Indians’ water three-fourths of in the acts sions to be found necessary rights, officials,24 public is to be found the statements consequences holding. respecting “the of our Sho- opinions of courts States, generous shone Tribe v. 476, 299 U.S. spirit United protective which 360, its 57 S.Ct. 81 L.Ed. Com- properly feels toward missioner of Affairs wards”, v. Indian Tax Indian Oklahoma Comm. intruding agreed permit permitted 63 S.Ct. United 319 U.S. Arapahoe move the members of the tribe to 87 L.Ed. “ dealing’ portion ‘high Indian re a of the Shoshone standards for fair by treaty had quired reservation which been in control States ling for the affairs”, United reserved There- Shoshone tribe.' Tillamooks, after the Commissioner continued Band of Alcea assumption 167,170, act on are but rule and thé L.Ed. S.Ct. gross occupancy Arapahoes, national who had of a demonstrations brought military show of hypocrisy. Government, force on the But to hold we constrained rightful. permanent Subsequent rec- arrangement some since ognition Arap- occupancy apportionment of Ahtanum waters Congress. ahoes was ratified act of thing the sort of the Secre was held that chain events grant tary do was authorized to taking appropriation amounted to or an general powers supervision and of of Shoshone tribe management, pow he had the therefore of the 1878 action of the Commissioner.

er to the 1908 The make page 497, said, The court 299 U.S. at Secretary’s mistakes, poor judgment, his page at 251: “Power to control S.Ct. overlooking ignoring or of the true his manage property and and affairs rights, Indians’ his lack measure good in Indians faith for their better- bargaining may skill or determination may ment and welfare in be exerted up power, do to an abuse of his but add many ways deroga- negative it, and times or his ultra even in make act provisions treaty. vires. a Lone argument against Hitchcock, 564, 553, v. Wolf The most serious U.S. grant- 566, 216, 565, 23 S.Ct. construction of the statute as 299. our ing L.Ed. power Secretary Interior the The does extend so far as to * * * you. tary convey to it. Arenas much of I refused v. went back to year supra. States, say last the Great Father allotments to that United originally you good, you required kind, held in trust to be of cases caused to had been * * * something you. he must do a multitude pro- patented I to Father said want who Great them fee to larger mortgage farms; them have more and you or and thus I told sell him ceeded owners, horses; process had cattle and a them to white he lose answered day. your goes that this For in- he wanted forward to horses and which cat * * increase; Cong., Sess., Why tle to *. Laws of 84th 2nd did see stance 450, approved way? (cid:127)Chapter Why Father Public Great did he send answer this Law my 1956; myself brother Public Law 539 of and here March say you? Chapter 326, approved day, Congress, this to this you same Because children;1 May 28, his are Sometimes the courts his red children more are dear to him to block some as his able white have been chil ”*** consequences practice. flagrant this dren. County, Act, supra; Mont. v. Section United Removal Glacier See “ * * * 733; may Cir., it v. shall and 99 F.2d Ward be lawful for solemnly County County, the President tribe to assure Com’rs of Love Board * * * that 40 S.Ct. L.Ed. 751. guaranty will secure forever and to them * * * May country exchanged Yakimas, Stevens to so 24. Governor ** 30,1855: them Great Father learned “The give government tribal district”, wholly of said enable the ‘to uninforma- others, appropriate them tive as are, lands to who these water users rendering, purposes, own without what to its lands claim to have just assuming obligation render, irrigate, they deraign an or how their * * * compensation; rights. “would titles to water In addition guardianship, admitting denying an not be exercise certain al- ”’ legations Here, as complaint, we an act confiscation.” answer this Congress only noted, (1), ratified has never contains part plea of laches on the giving Indians; (2), the act of the plea against statute of Ahtanum waters the white settlers. limitations as the own- course, holding patented our ers of Indian Of lands in fee sim- allegations powers ple; (3), we within his acted means toas the execution regard giving validity his agreement; conduct in (4)v the 1908 allegation as an act of the the same characteristics the waters in the- appropriation irrigate was found creek which are insufficient to both thereof; accomplished (5), allegation in Shoshone sides to have been States, supra.25 Tribe reservation lands could obtain supplies water from other sources in- It is clear that the action the Indian reservation without excessive- dismissing ap district pellánt’s sufficiency cost. The of these answers suit, like suit was error. The challenged by the United States in- designed proceedings procure other pretrial statement. Since cause adjudication rights, its must be remanded proceed- for further purpose quiet title to effect one to ings court, in the trial those since realty. Rickey Co. v. Land & Cattle proceedings adju- must determine and Cir., Lux, 9 af Miller & 152 F. respective rights dicate the par- firmed 218 31 S.Ct. 54 L.Ed. U.S. presented ties, during which defendants must be claims and issues required to show and disclose their required the court to determine rights titles, apparent adjudicate and the extent of the proper appropriate and answers be- must parties respect of with to the waters required Although from all defendants. stream; a of the determination pretrial made, wholly order was it agreement validity of 1908 did failed to correct or deal with this in- for the trial court’s conclusion that call sufficiency of the answers. the United States no what interest in the Ahtanum waters. ever opinion of the trial court found fault with proof Furthermore, Government’s as in of the case rights, saying of its water F.Supp. quiet title, [124 suits to the defendants other government 838]: “Since the required by cannot re appear have been should upon right cover a claim of and set forth claims answer their of Yakima Indian entity, nation right as an only the use Reynolds as- Schmidt, Cir., the trustee for stream. several individual In general, they patents 240. In dians 40 F.2d who hold did respective trust ly, respective claim of Thus so.26 the answer of Ahtan each not do owner Irrigation specifically must be up “the proved, um District set landowners, and further proof there named be above defendant wa must of acts users, defendant ter lienholders and some or encumbranc defendants which' boundary lie interfere with the ers lands within the trust par- whose owners of July 2, Tribc filed claim filed 3947. The based on suit was This the 3908. agreement, -with the July Indian 24, 3.951, Claims on Com- shows that a few record mission. expiration days before the of the time Aug. 13, 12 of the Act of § limited exception 26. An was the answer of the 70k, Corporation Bishop. § U.S.C.A. Yakima of the Catholic property, be the extent that permitted pieces before the defendants are ticular any government require to have of the use landowner can stream, boundary plead prove portion of the flow of north right.” deraigned ownership their are from water of a his claim to Apart disagree. By maps of 1908. from that this we With agreement, those defendants Office records the United right location, point no to the use of said waters diversion showed except capacity constructed strict subordination ditch each Service, prior by by Indians, and better the United irrigable area, description, as for the and States Indians. Of trustee and the course, themselves, as between served could all reservation lands location of priorities acquire Ah- under law in re- by state with water those ditches spect surplus rate their use after are the Also shown tanum Creek. through years interest of the the the Indians had been progress since treaty getting surplus but in this wa- satisfied relation creation only. lands lands. Just which ter owned, trust Indian whether under Again are the 1908 was not patent, owned or fee Engineer made between on the one Code allottees, of Indian also successors hand and all citizens of the state re- quantities of water proven. The Washington agree- other. stipulated quired these lands was both specified ment was individ- made required, proven. more was No uals, and since related to the use right to make qualifications water, certain must nec- such water under of its distribution essarily implied be treated condi- as may adopt, provided as it rules this, plain if tions thereof. It seems 16, supra). (note is no agreements § U.S.C.A. relating other to Indian particular parcels of ours which concern strongly rights, is to construed most served or allotments are in favor of the it must under- long adequate ditches, so Service stood that the the use of the aggregate their proof was made percent of the waters must have been needs. limited to the needs as of 1908 of the parties particular individuals who were mind important that we bear It is here must de just defendants how the Johncox, rights. in the case of Benton v. raign The record their 495, 107, noted, 49 P. dicates, bulk Wash. 39 L.R.A. that the as we Supreme flowing Washington, Court of in a suit in Creek Ahtanum of the waters irrigation of non-Indian users of required between of water for the be Creek, Ahtanum same held which were lands on the through riparian upon of owners land the stream In susceptible of service injunction completed an irrigation system were restrain- in 1915 entitled ing non-riparian quantity from of owners divert- of that use ing interfering previously or with the in water of the reasons was water stream; theory originally property this on that the com- the exclusive dicated expounded Haggin, for the mon as trustee law Lux v. States of the United 255, portion 919, volume 69 of that 10 P. No Cal. P. was tribe. Washington right to the use there of at the law the time when or water appropriation ownership riparian other open or owners of, was by initiated. But whether state law the de was first under acquisition predecessors of the 1908 in in beneficiaries were their or fendants dealing riparian proprietors, McIntire, or v. were States United terest. owners, 653-654; 650, to such or Federal confined whether cf. own- Cir., F.2d rights Oregon, appropriative included, ers of 349 U. v. State Comm. Power as of 1908 To their interests 99 L.Ed. 1215. were neces- S.Ct. S. needs, and like. The court sarily never reached that is- their then limited to ownerships not sue of course for could it dismissed the com- subsequent uses arrange- plaint irriga- rights entirety. in its enlarge under the Waste their waters. water is of these not to be tolerated and in division ment for the arriving at a determination any time hold We defendants, and needs of the the court parties to that of those when the needs question must take into consideration 1908, were agreement, as measured alleged practices of wasteful to have full 75 require less than the such as to by been carried on In the defendants. stream, percent injunction a case of this character an use of the then their against appropriate part such waste anis reduced, correspondingly those developed of the decree if the facts dis- greater. measure, Indians, like Campbell Grimes, close a need for it. proposition This follows from 62 Kan. 64 P. 62. If waste cannot law of maxim of the is a fundamental prevented, may otherwise be a court re- rights, no individual’s waters that an party using strain water un- described, can measured matter how Frost, til his waste averted. Glaze v. Vineyard Land his needs. never exceed 44 Or. 74 P. 336. Cir., Falls, Co., 9 etc. v. Twin & Stock Co. by Another issue raised the United follows also from 245 F. It pretrial States order is that the general principle defendants have sunk numerous wells the character of executed which an additional draft been made reserving to the must be construed upon physical supply the available previously owned substan who water within the watershed. This is waters, everything tially all of the claimed be to the detriment of the granted.27 clearly shown have been United States. here to are What we have referred process making complete necessarily issues which must deter adjudication parties proceedings in the mined further appropriate it is inquire for the court to court, parties re should trial quired by and the question compliance by into the agree pre-trial pleading or only implied defendants not with the issues for trial. ments to frame such express requirements with the agreement May agree- Another issue raised 1908. That provisions pre-trial contained order was ment that the users water Ahtanum defendants use of their Creek must divert waters, headgates percent same were the claimed 75 substantial equipped appliances Evidence to suitable control wasteful. this effect measuring and with offered and received at the trial. devices. It would appear elementary to be to show water diverted tended by permitted must condition diversion of the defendants to run Ahtanum through highways, Creek waters diverted claimed under waste the 1908 agreement upon headgates compliance open no channels or mea with with both the express suring devices, implied old and the river beds and conditions of that sloughs place ditches, of used in years in some record indicates that has head The there was never 27. beginning dispute percent, 25 cut to in a as to a few from the was so cut only days, agreement applied prior years a for few while in whether the most mid-season, percent water, cut to in it was The claims of the 50 in the season of low times of parties early high respect in The records flow water. of dispute Irrigation adjudication by are for main this in the Indian Service through light years in 1911 1929 trial court for the of its canal determina- Hearings appear page parties 49 of the men- tion of needs and the case, supra. They a other circumstances of in note show tioned full head at season, beginning of each 342 from now here statute of limitation laches the record thus noted that It is claiming any claim, participation such statements lacks both the irrigation necessary benefits Government’s determination for the evidence system. think for a We that the answer is required decided to be of issues any rights in of be found fact in adjudication suit complete brought by any or more of For one these parties this in stream. ruling upon defendants, against Three oth- a Class no basis for have reason we here, injunction, and er defendants trustee holder appellee’s for an motion rights necessary a application the party. denied. Cherry Howell, Cir., 2 F. taken not The Government trustee, And 2d since the 713. Unit- argument with its here a definite stand suit, susceptible ed the so-called respect to the defendant, party not be a and could made namely, Defendants”, Three “Class party third those defend- original in interest of successors ants cannot be said be barred and that patents in fee were to whom allottees they rateably participate entitled to are describing In issued, under the lands Indian with the beneficiaries the use Irrigation trial court ditch. The dian may of such waters as be decreed to the pat finding that these 18 found its No. this suit. failed, successors, or their entees judgment and the reversed years, as period ten of more than a proceed- cause is remanded further percent sert ings in the court below inconsistent had lost stream and

waters rights opinion. claim These defendants thereto. original certain successors to that as CHAMBERS, Judge (con- Circuit the waters allottees whom curring) . and for the benefit were reserved con Indian ditches were lands the whose structed, may I I concur. do think that there ac defendants have Judge unintended overtones in what right quired interest and a vested a says Depart- POPE the Interior about di the waters distribution ment, Assistant to the same verted Engineer Pierce and Chief terior Code if their lands still extent a little harsh which are their con- original allottees. possession in 1908. I assume duct the two acquire originally such did they That departed from men have years this vale and right through purchase of allotments they cannot later defend them- Pow United States v. seems clear though may selves. Even L.Ed. ers, S.Ct. decision, known of Winters those that white trans holds That case duty may today to act make who have patented Indian al fee of such ferees which, in the mistakes of future course equally with individual lotments were may events, judgment. indicate bad beneficially entitled distribu allottees agreement today If works a In diverted for the tion of great injustice, I think it is for the system. Congress to correct if unfairness by developing question such there be rigable ii'- remains acquired other whether land for the Indians in involved. them such who had those Therefore, prior I years think it is that we ten more than terest uphold the should this suit barred institution notes interpretation rather Department urge of Justice to that no validity.” to its than brought adjudicate suit be the water Delay rights. chargeable solely was not Irrigation Dis- the Ahtanum far as So concerned, to the Government the considerations officials. trict conferring say de- is fair to this suit The outcome of ment. pendent upon powers upon ques- these to that our answer Congress Interior had it in must have tion.

Case Details

Case Name: United States v. Ahtanum Irrigation District

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 10, 1956

Citation: 236 F.2d 321

Docket Number: 14714_1

Court Abbreviation: 9th Cir.