Appendix — Ahtanum Irrigation District v. United States

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IN THE

Supreme Court of the Hnited States

Ocroser TERM, 1964

No.

AHTANUM IRRIGATION DitstRICT, a corporation, and

Tue STATE OF WASHINGTON, et al,

Petitioners,

vs.

UNrTED STATES OF AMERICA,

Respondent.

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

NINTH CIRCUIT

Joun J. O'ConNELL Frep C. PALMER

Attorney General 506 Miller Building

Yakima, Washington

Cuar_Es B. Roe, Jr., Toun Gavin

Assistant Attorney Genera! 410 Miller Building

Attorneys for Petitioner, an tee Tata

State of Washington, Or CounsEL:

Temple of Justice, ‘

Olympia, Washington Nortucutr Ex and

Jerome C. Muys

Tower Building

Washington 5, D. C.

Attorneys for Petitioners,

Ahtanum Irrigation Dis-

trict, et al

APPENDIX A, Treaty of 1855_.

APPENDIX INDEX

Page

APPENDIX B, 1908 Agreement

APPENDIX C, First op:nion of Court of Ap-

APPENDIX D, Final Report of Special Master

erst FF S

peals for the Ninth Circuit,

United States of America vs. Ah-

tanum Irrigation District, et al,

236 F. 2d 321 (C. A. 9, 1956)

cert. den. 352 U. S. 988 (1956).

PN oe

The Validity and Nature of the Memor-

andum of Agreement of May 9, 1908.

Effect of the Memorandum of code

ment of May 9, 1908. pt

Determination of Division 1 of V Waters

Alternative Sources of water.

I in crores Sessoms eats

Class III alee, Ia Rie ee ee

ee Ee RT re

APPENDIX E, Opinion of United States District

Judge, William J. Lindberg of

July 6, 1961, as revised January

26, 1962 _

Preliminary _.

Nature of the ae of! ee

Scope of adjudication and jurisdiction

101

ees 119

130

135

136

139

.. 139

146

149

ii APPENDIX INDEX (Continued )

Page

4. Remaining Findings of Fact and Conclu-

sions of Law

5. Waste _

APPENDIX F, Findings of Fact and Conclu-

sions of Law of United States

District Court of mati 30,

1962 _

APPENDIX G, Decree of United States District

Court of January 30, 1962...

APPENDIX H, Objections of defendants to

Court's Conclusions of Law, and

defendant's proposed alternative

conclusions of law.

APPENDIX I, Second opinion of Court of Ap-

peals for the Ninth Circuit,

United State of America vs. Ah-

tanum Irrigation District, et al,

330 F. 2d 897 (C. A. 9, 1964).

APPENDIX J, Opinion of the United Siates

Court of Appeals for the Ninth

Circuit on Petition for rehearing,

338, F. 2d 307 (C. A. 9, 1964).

APPENDIX K, Judgment of March 18, 1964 __.

155

156

160

182

187

190

APPENDIX “A”

IN THE

Supreme Court of the United States

OcrosErR TERM, 1964

RE com) =

AHTANUM IrnicaTion District, a corporation, and

THE State oF WASHINGTON, et al,

‘ Petitioners,

vs.

Unrrep STATES OF AMERICA,

Respondent.

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

NINTH CIRCUIT

Treaty With the Yakima, 1855

June 9, 1855.

Articles of agreement and convention r-ade and

concluded at the treaty ground, Camp Stevens, Walla

Walla Valley, this ninth day of June, in the year one

thousand eight hundred and fifty-five, by and between

Isaac I. Stevens, governor and superintendent of In-

dian affairs for the Territory of Washington, on the

part of the United States, and the undersigned head

chiefs, chiefs, head-men, and delegates oi the Yakima,

Palouse, Pisquouse, Wenatshapam, Klikatat, Klinquit,

Kow-was-say-se, Liaywas, Skin-pah, Wish-ham, Shyiks,

Ochechotes, Kal-milt-pah, and Se-ap-cat, confederated

tribes and bands of Indians, occupying lands herein-

after bounded and described and lying in Washington

Territory, who for the purpose of this treaty are to be

considered as one nation, under the name of “Yakima,”

with Kamiakun as its head chief, on behalf of and act-

ing for said tribes and bands, and being duly authorized

thereto by them.

Article I. The aforesaid confederated tribes and

bands of Indians hereby cede, relinquish, and convey

to the United States all their right, title, and interest

in and to the lands and country occupied and claimed

by them, and bounded and described as follows, to-wit:

Commencing at Mount Ranier, thence northerly

along the main ridge of the Cascade Mountains to the

point where the northern tributaries of Lake Che-lan

and the southern tributaries of the Methow River have

their rise; thence southeasterly on the divide between

the waters of Lake Che-lan and the Methow River to

the Columbia’ River; thence, crossing the Columbia

on a true east course, to a point whose longitude is one

hundred and nineteen degrees and ten minutes (119°

10’), which two latter lines separate the above con-

federated tribes and bands from the Oakinakane tribe

of Indians; thence in a true south course to the forty-

seventh (47°) parallel of latitude; thence east on said

parallel to the main Palouse River, which two latter

lines of boundary separate the above confederated tribes

and bands from the Spokane; thence down the Palouse

River to its junction with the Moh-hah-ne-she, or south-

ern tributary of the same; thence in a southeasterly di-

rection, to the Snake hiver, at the mouth of the Tu-

cannon River, separating the above confederated tribes

from the Nez Perce tribe of ndians; thence down the

Snake River to its junction with the Columbia River;

thence, up the Columbia River to the “W’ te Banks”

below the Priest’s Rapids; thence westerly to a lake

called “La Lac”; thence southerly to a point on the

Yakima River called Toh-mah-luke; thence in a south-

westerly direction, to the Columbia River, at the west-

em extremity of the “Big Island,” between the mouths

of the Umatilla River and Butler Creek; all of which

latter boundaries separate the above confederated tribes

and bands from the Walla-Walla, Cayuse, and Umatilla

tribes and bands of Indians; thence down the Columbia

River to midway between the mouths of White Salmon

and Wind Rivers; thence along the divide between

said rivers to the main ridge of the Cascade Mountains;

and thence along said ridge to the place of beginning.

Article 2. There is, however, reserved, from the

lands above ceded for the use and occupation of the

aforesaid confederated tribes and bands of Indians, the

tract of land included within the following boundaries,

to-wit: Commencing on the Yakima River, at the mouth

of the Attah-nam River; thence westerly along said

Attah-nam River to the forks; thence along the southern

tributary to the Cascade Mountains; thence southerly

along the main ridge of said mountains, passing south

and east of Mount Adams, to the spur whence flows

the waters of the Klickatat and Pisco Rivers; thence

down said spur to the divide between the waters of

said rivers; thence along said divide to the divide sep-

arating the waters of the Satass River from ihose flowing

into the Columbia River; thence along said divide to

the main Yakima, eight miles below the mouth of the

Satass River; and thence up the Yakima River to the

place of beginning.

All which tract shall be set apart and, so far as

necessary, surveyed and marked out, for the ¢ .clusive

use and benefit of said confederated tribes and bands

of Indians, as an Indian reservation; nor shall any

white man, except those in the employment of the Indian

Department, be permitted to reside upon the said reser-

vation without permission of the tribe and the superin-

tendent and agent. And the said confederated tribes

and bands agree to remove to, and settle upon, the

same, within one vear after the ratification of this

treaty. In the meantime it shall be lawful for them to

reside upon any ground not in the actual claim and

occupation of citizens of the United States; and upon

any ground claimed or occupied, if with the permis-

sion of the owner or claimant.

Guaranteeing, however, the right to all citizens

of the United States to enter upon and occupy as

settlers any lands not actually occupied and cultivated

by said Indians at this time, and not included in the

reservation above named.

And provided, That any substantial improvements

heiztofore made by any Indian, such as fields enclosed

and cultivated, and houses erected upon the lands

hereby ceded, and which he may be compelled to

abandon in consequence of this treaty. shall be valued,

under the direction of the President of the United States,

and payment made therefor in money; or improvements

of an equal value made for said Indian upon the reser-

vation. And no Indian will be required to abandon

the improvements aforesaid, now occupied by him.

until their value in money, or improvements of an

equal value shall be furnished him as aforesaid.

Article 3. And provided, That, if necessary for

the public convenience, roads may be run through the

said reservation; and on the other hand, the 1ight of

way, with i-ee access from the same to the nearest

public highway, is secured to them, as also the right,

in common with citizens of the United States, to travel

upon all public highways.

The exclusive right of taking fish in all the streams,

where ruaning through or bordering said reservation,

is further secured to said confederated tribes and bands

of Indians, as also the right of taking fish at all usual

and accustomed places, in common with the citizens

of the Territory, and of erecting temporary buildings

for curing them; together with the privilege of hunt-

ing, gathering roots and berries, and pasturing their

horses and cattle upon open and unclaimed land.

Article 4. In consideration of the above cession,

the United States agree to pay to the said confeder-

ated tribes and bands of Indians, in addition to the

goods and provisions distributed to them at the time

ot signing this treaty, the sum of Two Hundred Thou-

sand Dollars, in the following manner, that is to say:

Sixty thousand dollars, to be expended under the di-

rection of the President of the United States, the first

year after the ratification of this treaty, in providing for

their removal to the reservation, breaking up and fenc-

ing farms, building houses for them, supplying them

with provisions and a suitable outfit, and for such other

objects as he may deem necessary, and the remainder

in annuities, as follows: For the first five years after

the ratification of the treaty, ten thousand dollars each

vear, commencing September first, 1856; for the next

five years, eight thousand dollars each year; for the

next five years, six thousand dollars per year; and for

the next five years, four thousand dollars per year.

All of which sums of money shall be applied to

the use and benefit of said Indians, under the direc-

tion of the President of the United States, who may

from time to time determine, at his discretion, upon

what beneficial objects to expend the same for them.

And the superintendent of Indian affairs, or other proper

officer, shall each year inform the President of the

wishes of the Indians in relation thereto.

Article 5. The United States further agrees to estab-

lish at suitable points within said reservation, within

one year after the ratification hereof, two schools, erect-

ing the necessary buildings, keeping them in repair,

and providing them with furniture, books and station-

ery, one of which shall be an agricultural and indus-

trial school, to be located at the agency, and to be free

to the children of the said confederated tribes and

bands of Indians, and to employ one superintendent

of teaching and two teachers; to build two blacksmiths’

shops, to one of which shall be attached a tin-shop, and

to the other a gunsmith’s shop; one carpenter’s shop,

one wagon and plough maker's shop, and to keep the

same in repair and furnished with the necessary tools;

to employ one superintendent ot farming and two farm-

ers, two blacksmith, one tinner, one gunsmith, one car-

penter, one wagon and plough maker, for the instruc-

tion of the Indians in trades and to assist them in the

same; to erect one saw-mill and one flouring-mill, keep-

ing the same in repair and furnished with the neces-

sary tools and fixtures; to erect a hospital, keeping the

same in repair and provided with the necessary medi-

cines and furniture, and to employ a physician; and

to erect, keep in repair, and provided with the neces-

sary furniture, the building required for the accommo-

dation of the said employees. The said buildings and

establishments to be maintained and kept in repair as

aforesaid, and the employees to be kept in service for

the period of twenty years.

And in view of the fact that the head chief of the

said confederated tribes and bands of Indians is ex-

pected, and will be called upon to perform many serv-

ices of a public character, occupying much of his time,

the United States further to pay to the said confeder-

ated tribes and bands of Indians five hundred dollars

per vear, for the term of twenty years after the ratifi-

cation hereof, as a salary for such person as the said

confederated tribes and bands of Indians may select to

be their head chief, to build for him at a suitable point

on the reservation a comfortable house, and properly

furnish the same, and to plough and fence ten acres

of land The said salary to be paid to, and the said

house to be occupied by, such head chief so long as he

may continue to hold that office.

And it is distinctly understood and agreed that at

the time of the conclusion of this treaty Kamaiakun is

the duly elected and authorized head chief of the con-

federated tr”.2s and bands aforesaid, styled the Yakima

Nations, and is recognized as such by them and by the

commissioners on the part of the United States holding

this treaty; and al] the expenditures and expenses con-

templated in this article of this treaty shall be defrayed

by the United States, and shall not be deducted from

the annuities agreed to be paid to said confederated

tribes and bands of Indians. Nor shall the cost of trans-

porting the goods for the annuity payments be a charge

upon the annuities, but shall be defrayed by the United

States.

Article 6. The President may, from time to time,

at his discretion, cause the whcle_or such portions of

such reservation as he may think proper, to be sur-

veyed into lots, and assign the same to such individuals

or families of the said confederated tribes and bands of

Indians as are willing to avai] themselves of the privi-

lege, and will locate on the same as a permanent home,

on the same terms and subject to the same regulations

as are »rovided in the sixth article of the treaty with

the Omahas, so far as the same may be applicable.

Article 7. The annuities of the aforesaid confeder-

ated tribes and bands of Indians shall not be taken to

pay the debts of individuals.

Article 8. The aforesaid confederated tribes and

bands of Indians acknowledge their dependence upon

the Government of the United States, and promise to

be friendly with all citizens thereof, and pledge them-

selves to commit no depredations upon the property of

such citizens.

And should any one or more of them violate this

pledge, and the fact be satisfactorily proved before the

agent, the property taken shall be returned, or in de-

fault thereof, or if injured or destroyed, compensation

may be made by the Government out of the annuities.

Nor will they make war upon any other tribe, ex-

cept in self defence, but will submit all matters of dif- ;

ference between them and other Indians to the Gov-

ernment of the United States or its agent for decision,

and abide thereby. And if any of the said Indians com-

mit depredations on any other Indians within the Ter-

ritorv of Washington, or Oregon, the same rule shall

prevail as that provided in this article in case of depre-

dations against citizens. And the said confederated

tribes and band of Indians agree not io shelter or con-

ceal offenders against the laws of the United States,

but to deliver them up to the authorities for trial.

Article 9. The said confederated tribes and bands

of Indians desire to exclude from their reservation the

use of ardent spirits, and to prevent their people from

drinking the same, and, therefore, it is provided that any

Indian belonging to said confederated tribes and bands

of Indians, who is guilty of bringing liquor into said

reservation, or who drinks liquor, may have his or her

annuities withheld from him or her for such time as the

President may determine.

Article 10. And provided, That there is also re-

served and set apart irom the lands ceded by this

treaty, for the use and benefit of the aforesaid confed-

erated tribes and bands, a tract of land not exceeding

in quantity one township of six miles square, situated

at the forks of the Pisquouse or Wenatshapam River,

and known as the “Wenatshapam Fishery ” which said

reservation shall be surveyed and marked out when-

ever the President may direct, and may be subject to

the same provisions and restrictions as other Indian

reservations.

Article 11. This treaty shall be obligatory upon

the contracting parties as soon as the same shall be rati-

fied by the President and Senate of the United States.

In testimony whereof, the said Isaac I. Stevens,

governor and superintendent of Indian affairs for the

Territory of Washington, and the undersigned head

chiefs, chiefs. headmen, and delegates of the aforesaid

confederated tribes and bands of Indians, have here-

unto set their hands and seals, at the place and on the

day and year hereinbefore written.

ISAAC I. STEVENS,

Governor and Superintendent. (L.S.)

Kamaikun, his x mark (L.S.)

Skloom, his x mark (L.S.)

Owhi, his x mark (LS. )

Te-cole-kun, his x mark (LS. )

La-hoom, his x mark (L.S. )

Me-ni-nock, his x mark (1,8.)

Elit-Palmer, his x mark (L.S.)

Wish-och-kmpts, his x mark (L.S.)

Koo-lat-toose, his x mark (L.S.)

Shee-ah-cotte, his x mark iS)

Tuck-quille, his x marx (L.S. )

ka-loo-as, his x mark (1..S.)

Scha-noo-a, his x mark (h.3.)

Sla-kish, his x mark (L.S.)

Sisned and sealed in the presence of — James Doty,

secretary of treaties; Mie. Cles. Pandosy, O.M.T.; Wm.

C. McKay; W. H. Tappan, sub Indian agent, W. T.;

C. Chirouse, O.M.T.; Patrick McKenzie, interpreter;

Joel Palmer, superintendent Indian affairs, O. T.; W. D.

Biglow; A. D. Pamburn, interpreter.

APPENDIX “B”

AGREEMENT OF 1908

(Defs. Ex. 116 U. S. A. — Pl]. Ex. 79-6)

This \iemorandum of Agreement, Made this ninth

day vi May, 1908, by and between the United States

of America, and its assigns, acting in this behalf by

W. R. Code, Chief Engineer of Irrigation, Indian Bureau,

thereunto duly authorized by the Secretary of the In-

terior, party of the first part, and W. W. Clidden, et al.

users of water from the Ahtanum Creek on lands located

north of and adjacent to the Yakima Indian Reserva-

tion, in Yakima County, State of Washington, their

heirs, administrators, executors and assigns, acting in

this behalf by D. E. Lesh, A. D. Falin, J. J. Wiley,

D. B. Greenwalt, Willian H. Moyer, C. P. Swain, and

H. D. Winchester, their duly appointed and constituted

attorneys, party of the second part, Witnesseth,

That Whereas the parties hereto claim certain quan-

tities of water in the Ahtanum Creek, County of Yakima.

State of Washington, and a right to divert the same for

irrigation purposes; and

WHEREAS, a dispute exists as to the extent of the

respective rights of the said parties in and to said

water,

Now, Therefore, the parties hereto, in order to

avoid litigation and in order to limit and define their

said respective rights in and to the waters of the said

Ahtanum Creek, do mutually covenant and agree as

follows:

Article 1. The party of the first part agrees to

limit and define its claim to the waters of Ahtanum

Creek and its tributaries as twenty-five per cent (25%)

of the natural flow of said Creek, and the party of the

second part agrees to limit and define its total and

aggregate claim to the said waters as seventy-five pe

cent (75%) of the said natural flow of said stream,

each party hereto surrendering and conceding to the

other party all rights heretofore claimed in the said

waters in excess of the amounts herein named.

Article 2. It is understood and agreed that the

Secretary of the Interior may appoint a competent

hydrographer to measure the water in said Ahtanum

Creek and to determine the amount thereof to which

the party of the first part is entitled, at any and all

times, by virtue of this agreement.

Article 3. It is further understood and agreed that

the waters flowing in said Ahtarum Creek shall be

measured at a point on said stream locally known as

The Narrows, located about one-fourth of a mile west

of the point of intersection of said stream with the west

line of Section 14, Township 12 North, Range 16,

E.W.M. in said County and State. To the amount

thus ascertained to be in said stream at said point

shall be added the amounts of water diverted from

said Ahtanum Creek, including its North and South

Forks, so-called, above said point of measurement. The

total amount of water thus ascertained shall be deemed

the natural flow of Ahtanum Creek and the party of

the first part shall receive twenty-five per cent (25%)

thereof as the amount of said waters to which it is en-

titled by virtue of this agreement, for use on its lands

south of said stream; provided, however, that if it

appears at any time that there is an appreciable seep-

age or return flow to the main channel of said stream

below said point of measurement, then such seepage

or return flow shall be divided between the parties

hereto in the same proportion as herein provided for

the division of the natural flow of said stream.

Article 4. It is further understood and agreed that

the parties hereto may divert the low water flow, or

any part thereof, of said stream, to which they are en-

titled under the provisions of this agreement, in main

canals from any point or points on their respective

sides of said stream below the point of measurement

hereinbefore located and locally known as The Nar-

rows. If, however, it should be determined in the future

by either party hereto, to construct a main canal with

its heading at any point between said Narows and the

junction of the north and south channels of said stream,

located in Section 13, township i2 North, Range 16

East W.M., the other purty hereto shall have the elec-

tion to join in the construction of that portion of said

canal above the junction of the north and south chan-

nels aforesaid, which said portion shall be constructed

with a capacity sufficient and shall serve to carry the

total amount of water diverted by both parties. The

cost of the construction of such portion of said canal

as may be so jointly constructed shall be borne by the

first and second parties in proportions of one-fourth

and three-fourths respectively, and tie cost of mainten-

ance and repair of the same shall be borne in like pro-

portions. In case such canal shal! be located on the

south side of said stream, the party of the first part will

furnish a right of way therefor between the points

named. If, however, said canal should be located on the

north side of said stream, the right of way therefor be-

tween the points named, shall be furnished by the party

of the second part.

Article 5. It is further understood and agreed that

wherever water is diverted from the main channel ot

Ahtanum Creek by one or more of the water users here-

inbefore referred to, or by the party of the first part, a

substantial heaagate shall be installed and maintained

by said water user or water users or by the party of

the first part, as the case may be, which headgate shall

be of such construction that it can be adjusted and

locked by the ditch master hereinafter provided for, and

such water user or water users and the said party of the

first part shall install and maintain as near as practicable

to such headgate a suitable measuring device which

shall be a cippoletti weir where practicable.

For the purpose of the division of the waters of the

Ahtanum Creek as herein provided for, each of the

said parties hereby agrees to appoint on or before the

fifteenth day of June of each and every year, a ditch

master, whose duty it shall be to so close, regulate, or

adjust “ke headgates of the party so appointing him,

that no more water will be diverted from said Ahtanum

Creek by the parties hereto than said parties are re-

spectively entitled to under the provision: of this agree-

ment, and the ditch masters thus appointed are hereby

clothed with all necessary authority to do and perform

any and all acts necessary to the proper division of

said water, and to that end shall receive orders and

instructions trom the hydrographer appointed by the

Secretary of the Interior as to the amounts to which

each of the parties hereto is entitled from time to time;

provided, however, that nothing contained in this Article

shall be construed as settling the rights of the various

water users as to their respective rights to the use of

water herein conceded to said second party.

Article 6. It is further understood and agreed that

the water herein divided , the parties hereto

may be used for domestic, power, stock, and irrigation

purposes.

Article 7. No Member of or Delegate to Congress,

officer, agent or employee of the Government is or

shall be admitted to any share or part of this contract,

or to any benefit which may 2-ise therefrom, and sec-

tions 3739, 3740, 3741, and 3742 of the Revised Stat-

utes of the United States, so far as same may be appli-

cable, are part of this contract.

In Witness Whereof, the parties have hereto signed

their names the day and year first above written.

W. W. Code,

Chief Engineer of Irrigation, Indian Bureau,

For and on behalf of the United States of

America, Party of the first part.

W. W. Glidden, et al.

D. E. Lesh

A. D. Eglin

J. J. Wiley

D. B. Greenwalt

William H. Moyer

C. F. Swain

H. D. Winchester

Their Attorneys in fact, Party of

the Second part.

State of Washington,

County of Yakima—ss.

I, John H. Lynch, a Notary Public in and for said

County and State, do hereby certify that personally

appeared before me D. E. Lesh, A. D. Eglin, J. J. Wiley,

D. B. Greenwalt, William H. Moyer, C. F. Swain, and

H. D. Winchester, personally now to me to be the in-

dividuals who executed the within and foregoing in-

strament of writing as Attorneys in fact for and on

behalf of W. W. Glidden, et al. The principals named

in said instrument, and each for himself and not one

for the other, acknowledged to me that he executed

the same as the tree and voluntary act and deed of the

said principals and each of them for the uses and pur-

poses therein mentioned.

In Witness Whereof I have hereunto subscribed

my name and affixed my official seal this ninth day of

May 1908.

/s/ JOHN H. LYNCH

(Seal)

Notary Public in and for the State of

Washington, residing at North

Yakima, Washington

Approved this 30th day of June, 1908

FRANK PIERCE,

First Assistant Secretary

of the Interior.

APPENDIX “C”

236 F. (2d) 321

APPEAL FROM THE UNITED STATES DIS-

TRICT COURT FOR THE EASTERN DISTRICT

OF WASHINGTON, SOUTHERN DIVISION

Before

Pope, LEMMon and CuampBers, Circuit Judges

Pore, Circuit Judge

This is a suit brought by the United States as

trustee for the Yakima tribe of Indians to establish and

quiet title to the Indians’ right to the use of the waters

of Ahtanum creek in the State of Washington, which

is alleged to have been reserved by the treaty of June

9, 1855 between the United States and the Confederated

Tribes of Yakima Indians.! {his was the treaty by

which the Yakima Indian reservation was set uside for

the Indians. The defendants in the main are the non-

Indian owners of lands outside the reservation who had

appropriated or claimed rights to the use of the waters

of the stream which formed the northern boundary of

the reservation. ”

Holding that the United States had not proved

that it, as trustee or otherwise, had any right, title or

1 The treaty appears at 12 Stat. 951. It was ratified by

the Senate March 8, 1859.

2 Also named are certain so-called “Class Three Defen-

dants” who are individual owners of i:rigable land within

the Indian reservation boundaries and who are the succes-

sors in interest to the Indian allottees whose allotments were

patented in fee simple and subsequently sold to these de-

fendants.

interest in any water of Ahtanum Creek,* the trial

court dismissed the action and the complaint on the

merits.

The complaint sets out the treaty whereby a cer-

tain tract of land in the then Territory of Washington

was set aside and reserved for the use of the Yakima

tribe as a home and abiding place of the indians. It

alleged that in view of the purposes of the treaty, its

intention to encourage the Indians to give up their no-

madic habits and to till the soil, »nd also in view of the

arid character of the lands within the reservation which

required irrigation for successful cultivation, the treaty

operated to reserve sufficient waters of Ahtanum Creek

for the Indians’ needs, both present and future. The

complaint further alleged that on May 9, 1908, “in di-

rect violation of the rights ° ° ° reserved to the Yaki-

ma tribe,” the then chief engineer of irrigation, Bureau

’ Conclusion of Law (1). “That plaintiff has not proved

that the United States, as trustee or otherwise, has any right,

title or interest in any water of Ahtanum Creek as appur-

tenant to the Reservation as a whole or appurtenant to any

parcel or collection of parcels located thereon by virtue of

any reserva‘ion, express or implied, in the Treaty of 1855 or

otherwise or at all.’

Conclusions of Law (4). “That plaintiffs have not proved

that the Yakima Indian Nation, the Confederated Tribes of

Yakima Indians, any Indian ward or allottee, or any person

owning or occupying land on the Yakima Indian Re:2rvation

has any right, title or interest in any water right in Ahtanum

Creek by virtue of any reservation in the Treaty of 1855, by

reason of the fact that the Reservation borders on Ahtanum

Creek, or because of any appropriation and beneficial appli-

cation of any waiers of Ahtanum Creek.”

of Indian Affairs, entered into an agreement with cer-

tain white wate: users whose lands were situated out-

side of the reservation, whereby they were to have and

be entitled to 75 percent of the natural flow of Ahtan-

um Creek and the Yakima Indians were to have the re-

maining 25 percent of that stream’s natural flow. There

was added to the prayer for an adjudication of the rights

of the parties to the use of the stream waters, a prayer

that the court adjudge this agreement of May 9, 1908

to be invalid and of “no force and effect.”

The court held: 1, that there was no reservation of

any water rights by the Treaty of 1855;* 2, that in any

event the agreement of 1908 gave the white owners

nothing that they did not already own? and 3, that an

adjudication in the courts of the State of Washington in

1925 determining the rights of the white landowners out-

side of the Indian reservation to the 75 percent of the

natural flow of the stream, had been “encouraged” by

the United States, and thus the United States was

+ Finding of fact No. 5: “That there was s~ reservation of

any water rights to Ahtanum Creek by the Treaty of 1855,

either express Or implied, to the United States or to the Con-

federated Tribes, _ individual Indians, adverse to de-

fendants. That de. ~- ints owning lands north of the Ahtan-

um have not infrin,.d upon any water rights of the United

States, the Confederated Tribes, or individual Indians under

the proof herein.”

s “We are of the opinion that (the Secretary) did nothing

but recognize the limitations set by practice upon the usage

of water on the reservation and confirm the grants to the

owners outside.” 124 F. Supp. 818, at 835.

thereby barred from claiming any part of this 75 per-

cent.* Accordingly, the court concluded that the cause

should be dismissed.

In view of the action taken in the court below, it is

apparent that we must consider the following questions,

all of which are raised by the Government’s specifica-

tion of errors.

First, were any rights to the use of any of the waters

of Ahtanum Creek reserved by the Treaty of 1855? If

there were none, then the question of the validity of

the agreement of 1908 need not be discussed.

Second, if it be concluded that by the treaty of

1855, rights to the use of the waters of Ahtanum Creek

were reserved for the benefit of the Indians, were the

rights thus reserved any greater than the 25 percent of

the natural flow of the stream? If the right of the Indians,

as reserved, did not exceed the 25 percent allocated to

them in 1908, it would appear that no serious question

can be raised as to the validity of that agreement.

Third, if the rights reserved for the Indians by the

treaty were of the extent and size claimed by the United

States, that is to say, rights to sufficient waters for the

®*Conclusion of Law (7). “That in 192€ the State of

Washington, which then had jurisdiction over the waters of

Ahtanum Creek, adjudicated all claims to 75% of the flow of

Ahtanum Creek, which proceeding binds the United States

and bars any claim to that portien of the flow.”

needs of the Indians as they might exist in the future,

then we must of necessity consider the validity and

force of the 1908 agreement, for it is conceded that the

present needs of the Indians are sufficient to require sub-

stantially the whole flow of the stream. If the agree-

ment purported to deprive the Indians of rights which

actually belonged to them. then that circumstance must

be considered in determining whether the Government

officials in executing it exceeded their power and author-

itv.

That the Treaty of 1855 reserved rights in and to

the waters of this stream for the Indians, is plain from

the decision in Winters v. United States, 207 U. S. 564.

Apart from the date of the treaty discussed in that case,

the facts there are practically identical with those which

attended the treaty of 1855 with the Yakima tribes. In

the Winters case, as here, the reservation was created

by treaty; the reserved lands were a part of a much

larger tract which the Indians had the right to occupy;

and the lands were arid and without irrigation practi-

cally valueless. In the Winters case the Milk River was

designated as the northern boundary of the reservation.

This court, in its decision (143 F. 740, 746), which the

Supreme Court was affirming, had said: “We are of

opinion that it was the intention of the treaty to reserve

sufficient waters of Milk River, as was said by the court

below, ‘to insure to the Indians the means wherewith

to irrigate their farms’, and that it was so understood by

the respective parties to the treaty at the time it was

signed.” The attempted efforts to distinguish the Win-

ters case from this one, are without force. 7

It is true that the Yakima treaty described the Ah-

tanum as the north boundary of this reservation, whereas

the boundary of Fort Belknap reservation in the Winters

case was described as beginning at a point in the middle

of the main channel of Milk river. But a tract of land

bounded by a nonnavigable stream is deemed to extend

to the middle of the stream. Hirt v. Entus, 37 Wash.

2d 418, 428, 224 P. 2d 620.* The suggestion that much

of the water of the Ahtanum Creek originates off the res-

ervation is likewise of no significance. The same thing

was true of the Milk River in Montana; and it would be

a novel rule of water law to limit either the riparian

proprietor or the appropriator to waters which originated

’7The suggestion that the Yakima treaty differs from

that of the Fort Belknap Indians because of its earlier date,

when irrigation was not so common, is without force. As

hereafter noted, Indians were making some use of the Ah-

tanum waters for irrigation before 1855. Unanswerable is

the statement of a witness before the Commission studying

the Yakime river rights: “Among other things, for instance,

the Indian Department was to maintain an agriculutral

school to teach these Indians agriculture. What for? Why,

they could not raise a bean without irrigation.” P. 117, Sen-

ate Document 337, referred to infra note lla.

* The course of this boundary is described in the treaty

as follows: Commencing on the Yakima River, at the mouth

of the Attah-nam River; thence westerly along said Attah-

nam River to the Forks; thence along the southern tributary

to the Cascade Mountains; * *

upon his lands or within the area of appropriation. Most

streams in this portion of the country originate in the

mountains and far from the lands to which their waters

ultimately become appurtenant.

No significance attaches to the early date of this

treaty for the record is p!ain that some irrigation from

the Ahtanum had begun in this valley before 1855 in

which the Indians had participated. It is true that this

early use was on the north side of the Creek, bit they

then had occupancy of both sides, and we cannot assume

that when they agreed to move to the south side of the

Creek they surrendered all rights to use of the water.

As in the Winters case, we must answer in the negative

the questions there posed: “Did they give up all this?

Did they reduce the area of their occupation and give up

the waters which made it valuable or adequate?” As

was said in the Winters case, (207 U. S. 564,576): “The

reservation was a part of a very much larger tract which

the Indians had the right to occupy and use and which

was adequate for the habits and wants of a nomadic

and uncivilized people.” When the Indians agreed to

change their nomadic habits and to become a pastoral

and civilized people, using the smaller reservation area,

it must be borne in mind, as the Supreme Court said

of this very treaty, that “the treaty was not a grant of

rights to the Indians, but a grant of rights from them—a

reservation of those not granted.” United States v.

Winans, 198 \-. $. 371, 381. Before the treaty the

Indians had the right to the use not only of Ahtanum

Creek but of ali other streams in a vast area. The In-

dians did not surrender any part of their right to the use

of Ahtanum Creek regardless of whether the Creek

became the boundary or whether it flowed entirely with-

in the reservation. ?

This brings us to a discussion of the question of

quantum of waters reserved. It is obvious that the

quantum is not measured by the use being made at

the time the treaty reservation was made. The reser-

vation was not merely for present but for future use.

Any other construction of the rule in the Winters case

would be wholly unreasonable. This matter was directly

passed upon in Conrad Inv. Co. v. United States, 9 Cir.,

161 F. 829, decided shortly after the Winters decision.

This court was there undertaking to follow and apply

that decision. It said (p. 832): “What amount of water

will be required for these purposes may not be deter-

mined with absolute accuracy at this time; but the

policy of the government to reserve whatever water of

°*The Winters case settled the proposition that the

treaty’s failure to use the word “irrigation” was without sig-

nificance. As an indication as to what streams the treaty

recognized as exclusively for the Indians, note the following

treaty provision: “The exclusive right of taking fish in all

the streams, where running through or bordering said reser-

vation, is further secured to said confe lerated tribes and

band of Indians. * * * ” (Emphasis added.)

Birch Creek may be reasonably necessary, not only for

present uses, but for future requirements, is clearly with-

in the terms of the treaties as construed by the Supreme

Court in the Winters case.” The triai court’s decree in

that case, which this court affirmed, enjoined the inter-

ference with a specified quantity of water presently

diverted and used tor the benefit of the Indians on the

reservation. This was 1666 2/3 inches, but the decree

contained a further provision to the effect that the In-

dians were to be protected in respect to their future in-

creased needs. This portion of the trial court’s decree

was expressly approved by this court in the following

language, (p. 835). “It is further objected that the de-

cree of the Circuit Court provides that, whenever the

needs and requirements of the complainant for the use

of the waters of Birch creek for irrigating and other use-

ful purposes upon the reservation exceed the amount

of water reserved by the decree for that purpose, the

complainant may apply to the court for a modification

of the decree. This is entirely in accord with complain-

ant’s rights as adjudged by the decree. Having deter-

mined that the Indians on the reservation have a para-

mount right to the waters of Birch creek, it follows that

the permission given to the defendant to have the ex-

cess over the amount of water specified in the decree

should be subject to modification, should the condi-

tions on the reservation at any time require such modi-

fication.”

At the time of the making of the treaty construed

in the Winters case, it is plain there was little or no

irrigation then being carried on by the Indians. As the

Supreme Court pointed out, until that time they were

a nomadic people. As was suggested by this court when

that case was here, the Indians “might not have known

the exact meaning of the word ‘irrigation’ had it been

used in the treaty.” No one even thought in the Winters

case that the rights of the Indians to the use of the water

reserved should be limited to the quantities used at

the date of the treaty. The implied reservation looked to

the needs of the Indians in the future when they would

change their nomadic habits and become accustomed

to tilling the soil.

It is plain from our decision in the Conrad Inv. Co.

case, supra, that the paramount right of the Indians to

the waters of Ahtanum creek was not limited to the use

of the Indians at any given date but this right extended

to the ultimate needs of the Indians as those needs and

requirements should grow to keep pace with the de-

velopment of Indian agriculture upon the reservation.

Some effort is made here to assert that the reservation

of waters for the benefit of the Indians must be limited

to the amount or quantity actually used beneficially

by the Indians within some period of time or within

what the court might find to be a reasonable time. Thus,

it is argued that since at the time of the 1908 agree-

ment the area of land on the reservation then under

irrigation through the Indian ditches did not exceed

some 1200 acres, that the rights of the Indians were

limited by those needs.

This argument, as we shall later note, is used as

the basis for a contention that the 1908 agreement ade-

quately provided for all rights of the Indians, since

their rights were limited to the use of this 1200 acres.

Nothing in the Winters case or in any other decided

case lends any support to such an argument. As indi-

cated, exactly the contrary was held in the Conrad Inv.

Co. case, supra. Between 1908 and 1915 the Indian

Irrigation Service was engaged in the work of con-

structing and extending irrigation canals and ditches

with headworks and means of diversion so that by 1915

the Indian lands upon the reservation susceptible of

irrigation from Ahtanum Creek amounted to approxi-

mately 5000 acres. Had there been no 1908 agree-

ment, it seems plain that as of 1915 it would have to be

said that the rights reserved in the treaty were rights

to the use of water from this stream sufficient to supply

the needs of this 5000 acres.

When the complaint in the Winters case was filed

approximately 5000 acres of land were then being irri-

gated upon the Fort Belknap reservation. The waters

were diverted and distributed by mzans of a canal with

a cairying capacity of 5000 inches of water, and such

amount of water was required for the then needs and

requirements of the Government and the Indians.!° The

record here shows that an award of sufficient water to

irrigate the lands served by the Ahtanum Indian irri-

gation project system as completed in the year 1915

would take substantially all of the waters of Ahtanum

Creek. It does not appear that the waters decreed to

the Indians in the Winters case operated to exhaust the

entire flow of the Milk River, but, if so, that is merely

the consequence of it being a larger stream. As the

Winters case, both here and in the Supreme Court,

shows, the Indians were awarded the paramount right

regardless of the quantity remaining for the use of

white settlers. Our Conrad Inv. Co. case, supra, held

that what the non-Indian appropriators may have is

only the excess over and above the amounts reserved

for the Indians. It is plain that if the amount awarded

the United States for the benefit of the Indians in the

Winters case equaled the entire flow of the Miik River,

the decree would have been no different.

United States v. Walker River Irr. Dist., 104 F.

2d 334, was another case in which this court applied the

doctrine of the Winters case and recognized the right

10 See statement of facts, 143 F. 741.

of the Indians upon the reservation there involved, to

the use of water to the extent reasonably necessary to

supply their needs. The Walker River Indian reserva-

tion was an early one, initiated in 1859. At that time, as

this court pointed out, the Indians “unskilled in the art

of farming would necessarily make slow progress. * ° *

The extent to which the use of the stream mighi be

necessary could only be demonstrated by experience.”

(p. 339) At any rate by 1886 some 1900 acres were

under cultivation and at the time of the trial this area

had not substantially increased and the number of

Indians was not increasing. This court accepted the

master’s report and his estimate of the needs of the Gov-

ernment “as demonstrated by 70 years’ experience,” and

made the recommended award for water sufficient to

irrigate 2100 acres. It is unnecessary to consider whe-

ther, had there been no 1908 agreement, the rights of

the government as trustee for the Indians would have

been constantly growing ones in the years following

1915 had the irrigable area within the reservation con-

tinued to increase. It is sufficient for the purposes of

this case to say that an adjudication of the rights of

the United States in and to the waters of Ahtanum

Creek as of 1915, would necessarily award the United

States a right measured by the needs of the Indian irri-

gation project at that date.

The assertion that anv reservation of waters for the

benefit of the Indians must be limited to the amount or

quantity actually used beneficially within some period

which the court might find to be a reasonable time, is

accompanied by a suggestion that a reasonable time

limitation would terminate in 1908. We find no basis

for this. We deal here with the conduct of the Govern-

ment as trustee for the Indians. It is not tor us to say

to the legislative branch of the government that Con-

gress did not move with sufficient speed to appropri-

ate the funds necessary to complete this irrigation sys-

tem by 1908 rather than by 1915, or that the Government

had thus lost or forfeited the rights reserved for the

Indians.

We next notice the court’s conclusion that a 1925

state court adjudication of the respective rights of the

white landowners as between themselves to the 75 per-

cent of the flow of Ahtanum Creek, which had been

allotted to them in the 1908 agreement, was a proceed-

ing “which binds the United States and bars any claim

to that portion of the flow.” This refers to the proceed-

ing reviewed in In Re Water Rights in Ahtanum Creek,

139 Wash. 84, 245 P. 758. There the non-Indian, non-

reservation users of waters from Ahtanum Creek pro-

cured an adjudication of their relative rights. The United

States ws not a party to that suit, although as the pre-

trial order recites, it had knowledge that the adjudica-

tion was proceeding and it had an opportunity to appear

therein but decided against it. It is too clear to re-

quire exposition that the state water right decree could

have no effect upon the rights of the United States.

Rights reserved by treaties such as this are not subject

to appropriation under state law, nor has the state _

power to dispose of them. Federal Power Comm v.

Oregon, 349 U. S. 435, 444.

This brings us to the crucial question in the case,

the question of the validity and effect of the 1908

agreement.

On August 18, 1906, one David Munn, as plain-

tiff, filed in the Superior Court of Yakima County, Wash-

ington, a complaint against W. H. Redman and others.

The complaint alleged that the plaintiff had rights to the

waters of Ahtanum Creek; that the defendants named

were wrongfully diverting water from the Creek, and

prayed for an injunction against them. Redman was

an employee of the United States and was an Indian

Irrigation Service engineer. The Indian Service was

then in the process of enlarging the irrigation ditches

on the reservation. Redman was sued as an individual.

With the approval of the Attorney General, the United

States Attorney at Spokane, Washington, entered an ap-

pearance for Redman, not as attorney for the Govern-

ment, but as attorney for Redman. The filing of this suit

led to a considerable volume of correspondence between

the United States Attorney and the Attorney Genera!

and between the Secretary of of the Interior and the

oificials of the Indian ligation Service. Counsel for the

plaintiff offered to dismiss the case if the United States

would file a bill in equity to settle questions relating

to rights to the waters of Ahtanum Creek. Such a Lill

in equity was prepared by the United States Attorney

and approved by the Attorney General. For some rea-

son not apparent from the record, it was not filed, }! and

in the latter part of October, 1907, the Superintendent

of the Indian Agency was directed by the Commissioner

of Indian Affairs to begin conferences with counsel who

had filed the Munn suit to see if an adjustrgent of the

rights to use of the water could be made out of court.

In the spring of 1908 Chief Engineer Code of the

Indian Irrigation Service was directed to go to the reser-

vation to confer with a committee of white water users

for the purpose of bringing about a settlement of the

rights to the use of the Ahtanum water. The upshot of

this was the execution cf the agreement dated May 9,

1908 between the United States, acting through Code

and a large number of named white users of water from

Ahtanum Creek on lands located outside the reserva-

tion. The gist of the agreement was in its article I

reading as follows: “The party of the first part agrees

Qn August 8, 1907, the Secretary of the Interior re-

quested a .opy of the bill. This was furnished by the At-

torney Generai on August 10. Two days later, on August 12,

the Attorney General wired the United States Attorney in

Spokane telling him not to file the bill until further notice.

to limit and define its claim to the waters of Ahtanum

Creek and its tributaries as twenty-five percent (25%)

of the natural flow of said Creek, and the party of the

second part a;_rees to limit and define its total and aggre-

gate claim to said waters as seventy-five per cent (75%)

of the said natural flow of said stream, each party hereto

surrendering and conceding to the other party all rights

heretofore claimed in the said waters in excess of the

amounts herein named.” The remainder of the agree-

ment dealt with methods of measuring the water in the

creek, the manner of diversion, the installation of head-

gates and the designation of a ditch master. It was

signed by Code on behalf of the United States and by

the attorneys in fact for the white landowners, and on

June 30, 1908 it was approved by Frank Pierce, First

dia

Assistant Secretary of the Interior.

la The record contains copies of the official correspon-

dence within the Interior Department and between that De-

partment and the Department of Justice relating to the

negotiations which led to the execution of this agreement.

In the fall of 1907 Mr. Code transmitted to the Secretary a

report of his investigation’ on the reservation and of his

views concerning a possible compromise of claims respecting

waters of Ahtanum Creek. His recommendation was a com-

promise agreement involving a division of the waters based

upon the relative areas then actually irrigated by the Indians

on the south side and the white settlers on the north. He

estimated that at that time 1500 acres were irrigated on the

Indian side and 5500 acres on the white side, and he recom-

mended an attempt to adjust on the basis of one-third of the

waters to the Indians and two-thirds to the white settlers.

He referred to the “recent Montana decisions” and com-

mented upon the possibi'ity they would be sustained by the

Supreme Court, but stated, “to a layman, it seems that, as

between the early white settlers, who have made prior and

beneficial use of the waters of a boundary stream and the

While the execution of the agreement led to the

dismissal of the Munn case and dispensed with efforts

for the time being to prepare and file a suit on behalf of

the United States to settle the water rights, the execu-

tion of the agreement did not serve to lay the whole

matter at rest, for as we shall hereafter note, arguments

with respect to the agreement and its validity, and with

respect to whether the parties thereto were or were not

complving therewith, continued to rage for the next

30 years. !*

Government, which as guardian of the Indians’ water rights,

had not done so, the latter would be the party to make resti-

tution to the Indians.”

It does not appear that the Code agreement was submit-

ted to any law officers of the Government for an opinion

with respect to its validity prior to its execution and approv-

al. In contrast with his lavman’s opinion as to the law, the

attorney who represented the white landowners in dealing

with Code, later testified: “I advised my clients that the In-

dian land was entitled to sufficient water to irrigate it. We

tried to make the best bargain we could with the Secretary

of the Interior, and we did.” Senate Document 337, 63d Cong.,

2nd Sess., Dec. 20, 1913, p. 117.

'2In the vear 1912 individual Yakima Indians began

writing to the Attorney General urging the institution of a

suit to determine the rights of the Indians both in the Yaki-

ma River and in Ahtanum Creek. They asserted that the

agreement mentioned limiting the Indians to one-fourth of

the Ahtanum Creek and the other agreement limiting the

Indians to 147 cubic feet of water from the Yakima River

amounted to robbery of the Indians and was “damn shame

defendants stealing from poor Indians.’ The matter was re-

terred by the Attorney General to the Secretary of the In-

terior who recommended that court proceedings should not

be instituted because there was pending in Congress a bill

which, if passed, “will restore to the Yakima Indians the

water rights to which they are entitled under the Treaty of

1859." (Attached was correspondence relating to a prior

Secretary's limitation of the Indian rights in the Yakima

River which the Secretary states was “less than the Indians

are fairly entitled to and reasonabiy need.”)

That material, and the proposed bill did not refer to the

Ahtanum waters. A Department of Justice memorandum

signed “C.S.E..” recites, “I have gone into this matter with

considerable care and am impressed with the legal sound-

ness of the argument presented by the Yakima Indians, but

the Interior Department is resvonsible for whatever action

detrimental to their rights has been taken * * * ” The In-

dians were advised that no proceedings would be instituted

at that time.

On November 2, 1918, the Superintendent on the Yaki-

ma reservation advised the Commissioner of Indian Affairs

that white users along the Ahtanum were not living up to

their side of the agreement of 1908; that control works and

measuring devices as required by that agreement had not

been provided by the whites. and the superintendent under-

stood that he was nct obliged to live up to the agreement

either since the white users had failed to comply.

In 1923, the Chief Engineer in charge of Indian Irriga-

tion recommended to the Commissioner consideration of an

action to adjudicate the rights in Ahtanum Creek. Further

petitions requesting an adjudication were received from the

Indians and on July 5, 1927, the then Commissioner of In-

dian Affairs wrote to the Superintendent of the reservation

referring to the decision of the court in the Winters case and

to the Code agreement of 1908, and stated: “However, the

provisions in that agreement were never observed or carried

out and since that agreement was in its inception nothing

more than a tentative understanding for use until such time

as the disputed water rights might be determined by the

court, and in view of the failure of the parties to observe its

provisions, this ofice regards said agreement as of no effect

whatever in the matter of determining the water rights to

which the Indians are entitled.” The sunerintendent was di-

rected to see that the Indians received the quantity of water

which they needed. This order was suspended at the request

of Senator Jones of Washington, but there ensued and con-

tinued for several years thereafter extensive correspondence

between the Ahtanum Irrigation District and the state

Supervisor 0° Hydraulics of Olvmpia. Washington, on the

one hand, and the Department of the Interior and Commis-

sioner of Indian Affairs, on the other, respecting alleged ex-

cess diversions of the waters of Ahtanum Creek, and sug-

gesting that the Secretary of the Interior undertake to in-

vestigate with a view toa settlement of he continuing pend-

ing dispute.

The correspondence shows that the white users con-

structed a dam across Antanum Creek; that this was torn out

by the Indian Bureau and Indian police stationed to prevent

its replacement. This matter was called to the attention of

the Attorney General by First Assistant Secretary of the

Interior Dixon by letter dated January 25, 1930. The At-

torney General was advised that there was need for immedi-

ate action, and an investigation was asked. The Attorney

General had an investigation made by the Federal Bureau

of Investigation and on December 30, 1930, he transmitted

the report of the investigation to the Secretary of the Inter-

ior. Attached to the report was a copy of a letter from the

Solicitor for the Interior Department dated June 7, 1929, ad-

dressed to the Secretary, and expressing the view that the

Code agreement of 1908 was valid and within the authority

of the Secretary of the Interior to execute. The letter of

transmittal, signed by Attorney General William D. Mitchell,

stated: “I am not aware of any authority authorizing the

Secretary of the Interior or any officials of the Government

under him to enter into a compromise settlement of contro-

versies such as are here mentioned, whether the same be

effected as a compromise of a suit or otherwise.”

On May 12, 1931, First Assistant Secretary Dixon wrote

to the Attorney General that none of the parties would be

satisfied until a court decision in the matter in dispute had

been rendered, and requested the Attorney General to insti-

tute a suit to quiet title to the waters of Ahtanum Creek.

The Attorney General directed the United State Attorney at

Spokane to prepare a bill of complaint for that purpose.

There followed telegrams from Senator Jor.es to the Presi-

dent stating that it was imperative that orders be issued

stopping anv judicial proceeding and transmitting a copy of a

telegram from the Secretary of the Ahtanum Irrigation Dis-

trict advising that matters had been adjusted for the current

season. The Secretary of the Interior, being advised that a

working agreement had been reached respecting the water

for the season of 1932, recommended that the institution of

the suit to adjudicate the rights be delayed.

On October 2, 1933. Secretary of the Interior Ickes re-

quested the Attorney General to proceed with the suit to

settle the conflict over the Ahtanum Creek water rights.

Washington Senator Dill wired the Commissionor of Indian

Affairs suggesting that the proposed suit be called off, and

transmitted a copy of the letter to him from the Secretary

of the Ahtanum Irrigation District urging such non-action.

In June, 1938, United States Attorney Driver requested

authority to institute a suit to adjudicate the rights to the use

of water of Ahtanum Creek. This was followed by his sub-

This brings us to the heart of this case and the pri-

mary question involved, namely the problem of the

validity of the 1908 agreement. This is a most difficult

question. The Code agreement is one practically without

precedent. No statute, executive order or department-

al regulation made any provision for that sort of thing.

There is no long continued practice in the executive de-

partment of the Government from which congressional

acquiescence could be spelled out. '* Nothing can be

found in the way of an established usage, “which con-

stituted the common law of the department and fixed

the duties of those engaged in its activities.” United

States v. Birdsall, 233 U. S. 223, 231. The agreement

was approved by the First Assistant Secretary of the In-

terior. Nothing turns upon the fact that the approval

mission of a proposed bill of complaint for this purpose.

There followed letters from the Secretary of the Ahtanum

Irrigation District to Senators Schwellenbach and Bone urg-

ing them to take steps to prevent the institution of this suit.

This letter was transmitted by the Senators to the Attorney

General.

By Senate Resolution dated July 18, 1939, the Attorney

General was requested to stay these proceedings until the

Secretary of the Interior could report on the feasibility of

supplementing the supply of water in Ahtanum Valley. The

Secretary of the Interior reported on July 21, 1942, pursuant

to the Senate Resolution, that the proposed project to pro-

cure additional water was not feasible.

13 The oniy prior instance of such an agreement on the

part of the Secretary was that made by Secretary Hitchcock

in 1905, agreeing to limit these Indians’ right to Yakima

River water. It is referred to infra.

14 United States v. Midwest Oil Co., 236 U. S. 459, 469;

cf. Sioux Tribe v. U. S., 316 U. S. 317 at p. 326.

was executed by an Assistant Secretary rather than by

the Secretary himself. Under like circumstances it has

been held that the act of an Assistant Secretary must

be presumed to be within the scope of the authority

which the Secretary conferred upon his Assistant. Parish

v. United States, 100 U. S. 500, 504; United States v.

Peralta, 19 How. 343, 347; Norris v. United States, 257

U. S. 77, 81, 82° In inquiring whether the Secretary

of the Interior himself had power or authority to enter

into such an agreement, it is noted that at that time, the

powers granted to the Secretary of the Interior, so far as

Indians and Indian rights were concerned, were stated

in very general terms, as follows:

“Sec. 441. The Secretary of the Interior is

charged with the supervision of public business

relating to the following subjects: ° ° ° Third.

the Indians.” (R.S. 441, see 5 U. S.C. A. 485.)

“The Commissioner of Indian Affairs shall,

under the direction of the Secretary of the Interior,

and agreeably to such regulations as the President

may prescribe, have the management of all Indian

affairs, and of all matters arising out of Indian re-

lations.” (R.S. 463, now 25 U.S. C. A. 2.) 18

15 Provision for an Assistant Secretary of the Interior

and of his performance of duties prescribed by the Secretary,

was made in R. S. §§ 438, 439 (1873). 23 Stat. 497 (1885) pro-

vided for a First Assistant Secretary.

'e Appellees have cited as statutes having a bearing upon

the authority of the Secretary to execute this agreement,

Title 25 U.S. C. A. 8§ 381 and 382. § 381, authorizing the Sec-

tary to prescribe rules and regulations “necessary to secure

a just and equal distribution lof water] among the Indians

residing upon any such reservations,” refers to regulations

for distribution among the Indians themselves. See United

It is suggested that whatever may have been the

initial force and effect of the 1908 agreement, that sub-

sequent official acquiesence in the agreement and the

performance thereof, and administrative interpretations

of the applicable statutes as giving the Secretary power

to approve the agreement, operated in some manner to

ratify the arrangement. It is contended that the con-

temporaneous construction of the applicable statutes

by those charged with the execution thereof, especially

when it has long prevailed, is entitled to great weight.

A thorough search of the reports made to Congress

by the committees dealing with appropriation of the

funds which were used between the years 1908 aud

1915 in completing the irrigation system designed to

provide the 5000 acres with waters from Ahtanum

Creek, fails to disciose any real evidence that Con-

gress was reliably informed of this limiting agreement

of 1908. If anything, the continued appropriations for

such a sizeable irrigation system would suggest a lack

of information on the part of Congress as to the 1908

agreement. So far as Congress is concerned, there is

no evidence whatever that the members thereof had

any information from the Department of the Interior

with respect to this particular agreement prior to the

States v. Powers, 305 U. S. 527. § 382 did not become effective

until 1909 and it appears to provide merely for the irrigation

of Indian lands in connection with projects undertaken

under the Reclamation Act.

year 1932 when a bill was introduced for the purpose

of approving and ratifying the agreement. !7 This was

a bill introduced by Senator Jones of Washington en-

titled “A Bill Approving and Confirming Contract For

Apportionment of Waters of Ahtanum Creek, Wash-

ington, Between Yakima Indian Reservation And Lands

North Thereof Dated May 9, 1908.” Extensive hearings

were held but the bill had rough going 18 and was not

reported.

In 1905 Secretary of the Interior Hitchcock had

undertaken to make an agreement limiting the rights

of this same tribe of Indians to waters flowing in the

17 Hearing before the Committee on Indian Affairs, U. S.

Sen., 72nd Cong., Ist Sess., on S. 3998, (erroneously called

S. 3988). Some of the witnesses at the hearings before the

Joint Congressional Commission which investigated Secre-

tary Hitchcock’s apportionment of Yakima River waters

mentiored the Ahtanum agreement. Neither that investi-

gation nor the report which followed dealt with the Ahtan-

um agreement. Report of Joint Congressional Commission,

Document No. 337, 63d Cong., 2nd Sess.

18“Senator Wheeler. Did the Indians agree to such a

division at that time? Senator Jones. I do not think they

did—that is, individually. I do not think they had a council.

They acted through the Secretary of the Interior.” Senator

Wheeler. “If they did not have a council, Senator, my con-

tention has always been that the Secretary of the Interior

and the Indian Bureau had no right to go ahead and act

arbitrarily without the tribal council’s consent, taking away

water or land from these Indians and giving it to white

settlers.* * * The agreement, so far as I am concerned, has

no force or effect.” Hearings, (supra note 17) pp. 18, 20.

J. Henry Scattergood, Assistant Commissioner of Indian Af-

fairs, appeared at the request of the committee and expressed

his personal view, contrary to that of the Secretary, that the

bill should not pass but that suit to determine the rights

should be started by the Attorney General, (p. 48).

Yakima River, and which were used on another portion

of the same reservation. The Secretary undertook to

limit the Indians’ rights to 147 cubic feet per second.

In 1913 a joint commission of the Senate and House

visited that area and held hearings with respect to that

agreement and to consider action designed to correct

the wrongs claimed to have been done the Indians by

the Secretary's agreement. The commission had before

it a proposal tc provide by congressional action addi-

tional water for irrigating these lands, known as the

Wapato project, an area adjoining the Yakima River.

The report, (Document 337, footnote lla, supra) was

that the Secretary's allowance of 147 second feet for

the use of the reservation lands “was when made and

now is inadequate, inequitable, and unfair to said In-

dian Reservation.” The result os that investigation was

the passage of the Act of August 1, 1914, 38 Stat. 604,

appropriating funds designed to provide in addition to

the 147 cubic feet per second menticned in the Secre-

tary’s stipulation, sufficient stored water to make an ag-

gregate of at least 720 cubic feet per second, this to be

in satisfaction of the rights of the Indians in the Yakima

River. The Act recited that “the Indians ° ° * have

been unjustly deprived of the portion of the natural

flow of the Yakima River to which they are equitably

entitled ° ° °” This congressional inquiry and the en-

actment was not concerned with the 1908 agreement,

or with the Ahtanum waters; it dealt solely with the

Wapato project and Yakima River waters. The enact-

ment added up to « congressional disapproval of Secre-

tary Hitchcock's action.

With respect to the departmental interpretations

of the question of the Secretary's power or authority

to approve the 1908 agreement, the material referred to

in footnote 12, supra, sufficiently indicates that there

was no clear or definite determination by the Interior

Department and such expression as the office of the

Attorney General gave, questioned the validity of the

1908 agreement.

As early as 1885, the Attomney General advised the

Secretary that the iatter had no power to approve leases

of Indian lands for grazing purposes. The opinion was

based in part upon the provisions of what is now Title

25, § 177, prohibiting “purchase, grant, lease or other

conveyance of lands, or of any title or claim thereto,

from any Indian nation or tribe of Indians.” (18 Ops.

A.G. 235, 238.) While under date of June 7, 1929,

Interior Solicitor Finney had advised the Secretary

that “You would not now be justified in ignoring or

attempting to repudiate the agreement entered into in

1908,” yet as noted in footnote 12, supra, Attorney Gen-

eral Mitchell stated that he was not aware of any

authority authorizing the Secretary of the Interior to

enter into the arrangement mentioned. In addition to

the 1927 direction of the Commissioner of Indian Af-

fairs to the Superintendent of the reservation to disre-

gard the 1908 agreement as being of no effect whatever.

Commissioner Rhodes on Marck: 22, 1932, recommended

an unfavorable report on the House counterpart of the

Senate bill proposing to ratify and approve the 1908

agreement. He also stated the view of the Indian Serv-

ice that the agreement was merely a temporary working

understanding and not intended to be binding for the

future as conditions changed. He referred to the pend-

ing draiting of a bill of complaint to adjudicate the

questions involved, and thought that until the adjudi-

cation was complete there should be no effort to have

Congress confirm the 1908 agreement. '? While the

then Secretary of the Interior thus ignored the Com-

missioner’s recommendation, the succeeding Secretary

of the Interior, on October 2, 1933, requested the At-

torney General to proceed with the suit. (See note 12,

supra. )

The record completely fails to support the conten-

tion of the appellees that there was any definite ad-

1° Notwithstanding this recommendation from the Com-

missioner, Secretary Wilbur on the same date stated to the

House Committee, “Unless I am prevented by court action,

I propose to adhere to the agreement of 1908.” He stated he

had no objection to the proposed legislation. His lengthy

letter takes notice of a question relating to the validity of

the 1908 agreement but in listing questions in dispute, notes

only questions ‘that “relate to the interpretation of the

agreement rather than to its validity.”

ministrative interpretation of the Acts relating to the

powers of the Secretary to the effect that under them

such an agreement was a valid one. Rather it would

appear the question was one under constant debate and

dispute within the Departmer:* itself.

Of course, if the Secretary lacked the power to ap-

prove the 1908 agreement in the first plac., neither he

nor any of his subordinates could by subsequent con-

duct or approval, or by any action or failure to act,

render valid that which was initially void. No defense

of laches or estoppel is available to the defendants here

for the Government as trustee for the Indian Tribe, is

not subject to those defenses. Utah Pawer and Light

Co. v. United States, 243 U. S. 389, 408-9; Cramer v.

United States, 261 U. S. 219, 234; United States v.

Walker River Irr. Dist., supra, p. 339. “The Govermn-

ment, which holds its interests here as elsewhere in

trust for all the people, is not to be deprived of those

interests by the ordinary court rules designed particu-

laraly for private disputes over individually owned

pieces of property; and officers who have no authority

at all to dispose of Government property cannot by

their conduct cause the Government to lose its valuable

rights by their acquiescence, laches, or failure to act.”

United States v. California, 332 U. S. 19, 40. And in

respect to the rights of Indians in an Indian reservation,

there is a special reason why the Indians’ property may

not be lost through adverse possession, laches or delay.

This, as pointed out, in United States v. 7,405.3 Acres

of Land, 4 cir., 97 F. 2d 417, 422, arises out of the pro-

visions of Title 25, U. S. C. A. $ 177, B.S. § 2116, which

forbids the acquisition of Indian lands or of any title

or claim thereto except by treaty or convention. ”°

It is thus apparent that we-are confronted with

the necessity of passing upon the question whether the

applicable statutes above quoted, by force of their own

terms alone, and unaided by any established practice,

or administrative ruling, regulation or interpretation

from which acquiesence or implied approval by Con-

gress might be implied, granted the Secretary power to

make this agreement. The outcome of this suit is de-

pendent upon our answer to that question.

The Government’s contention is that the Secretary

had no power to agree to hand over to others 75 percent

of the waters actually reserved for the use of the In-

dians. in the absence of specific statutory authority

20 So far as the Ahtanum Irrigation District is concerned,

the considerations which would ordinarily induce a court to

be sympathetic to a plea of laches would not have full force

here. While the record shows that in 1907, counse! for | ae

tiff Munn offered to dismiss that suit if the United States

Attorney would file a bill on behalf of the United States,

yet on later occasions when the filing of such a suit was pro-

posed some of the Washington Senators were repeatedly in-

duced by the District to intervene with the Department of

Justice to urge that ne suit be brought to adiudicate the

water rights. Delav was not chargeable solely to the Gov-

ernment officials. 4

so to do. There are cases which seem to point in that

direction. Speaking of lands reserved by treaty for use

of an Indian tribe, in Sioux Tribe v. U. S., 316 U. S.

317, 326, the Court said: “Since the Constitution places

the authority to dispose of public lands exclusively in

Congress, the executive's power to convey any interest

in these lands must be traced to congressional delegation

of its authority.” It has been said that the Secreary's

power to dispose of public lands must be feund in spe-

cific, not in general legislation relating to public lands

as a whole. Hynes v. Grimes Packing Co., 337 U. S. 86,

109. A similarly strict view with respect to the Secre-

tarv’s power to deal with the property rights of indivi-

dual Indians has been expressed. ?!

Neither of the sections of the quoted statutes re-

lating to the powers of the Secretary makes any refer-

ence to agreements with respect to division of waters of

streams bordering Indian reservations as between the

Indians and the white settlers. The sections do in gen-

eral language confer upon the Secretary powers of super-

vision and of management. R.S. 441 charges the Sec-

retary with the supervision of public business relating

“1 “Since these Indians with the implied consent of the

Government had acquired such rights of occupancy as en-

titled them to retain possession as against the defendants. no

officer or agent of the Government had authority to deal

with the land upon any other theory.” Cramer vy. United

gg U. S. 219, 234. Cf. Arenas v. United States, 322

to Indians, and R.S. 463 states that the Commissioner

of Indian Affairs under the Secretary's direction shall

“have the management of all Indian affairs, and of all

matters arising out of Indian relations.”

It is fair to say that in conferring these powers

upon the Secretary of the Interior Congress must have

had it in mind that a part of the Secretary's task of

supervision and of management of Indian affairs would

necessarily deal with certain relations between the In-

dians on the one hand and their white neighbors on

the other. The management of any parcel of land neces-

sarily involves some degree of occasional adjustment

of the rights of the owner in relation to and concern-

ing adjoining landowners; arrangements for the loca-

tion and erection «f boundary fences, and repair and

maintenance of those fences are illustrations of this.

More specifically we have here the case of a stream

which formed the boundary between the Indian reser-

vation and the outside public iands, and which public

lands were open to entry by white settlers. The rights of

the white settlers to the use of the waters were sub-

ordinate to the rights of the indians, but they were not

nonexistent. Until the Indians were able to make use

of the waters there was no legal obstacle to the use of

those waters by the white settlers. And after the Indian

irrigation works were completed, there would still be

the right of the non-Indian appropriators to make use

of any surplus available within the stream. Where the

waters of a stream are subject to use by different land-

owners, the very use itself involves some accommoda-

tion between the parties. It is common knowledge that,

particulary in the early days, many streams in the West

were used by appropriators or by riparian owners long

before the stream rights had been adjudicated, and

prior to the establishment of any machinery for the

appointment of water masters. That sort of thing in-

volves a measure of dealing between water users.

Authority to manage property would normally compre-

hend dealings of this character.

At the time the 1908 agreeme:.t was made, disputes

had begun to appear as to the proper division and dis-

tribution of the waters of Ahtanum Creek. Of course

it was then open to the United States, although not to

the white landowners, to start court proceedings de-

signed to adjudicate the rights of the litigants. It is

the view of this court that it could not have been within

the contemplation of Congress that the Secretary, vested

as he was «vith the general power of supervision and

management of Indian affairs, and of matters arising

out of Indian relations, could not make a peaceful

arrangement for a practical mode of use of the waters

of this stream. As early as 1833, the Supreme Court

said in United States v. Macdaniel, 7 Pet. 1, 13-14:

“A pr. tical knowledge of the action of any

one of the great departments of the government,

must convince every person, that the head oi a

department, in the distribution of its duties and re-

sponsibilities, is often compelled to exercise his

discretion. He is limited in the exercise of his

powers by the law; but it does not follow, that he

must show statutory provision for everything he

does. No government could be administered on

such principle. To attempt to regulate, by law,

the minute movements of every part of the compli-

cated machinery of government, would evince a

most unpardonable ignorance on the subject. Whilst

the great outlines of its movements may be marked

out, and limitations imposed on the exercise of its

powers; there are numberless things which must

be done, that can neither be anticipated nor de-

fined, and which are essential to the proper action

of the government.”

This principle has frequently been expressed in

relation to the acts of the Secretary of Interior or the

Commissioner of Indian Affairs. Thus in Rainbow v.

Young, 8 cir., 161 F. 835, 838, the court speaking

through Circuit judge Van Devanter, after citing United

States v. Macdaniel, supra, said:

“In our opinion the very general language

of the statutes makes it quite plain that the au-

thority conferred upon the Commissioner of Indian

Affairs was intended to be sufficiently compre-

hensive to enable him, ° ° ° to manage all In-

dian affairs, and all matters arising out of Indian

relations, with a just regard, not merely to the rights

and welfare cf the public, but also the rights and

welfare of the Indians, and to the duty of care and

protection owing to them by reason of their state

of dependency and tutelage. And, while there is

no specific provision relating to the exclusion of

collectors from Indian Agencies at times when

payments are being made to the Indians, it does

not follow that the commissioner is without authori-

ty to exclude them. * * °”

If, as we believe, it was appropriate and within the

general powers granted, for the Secretary of the Interior

to enter into a working arrangement as to how the

waters of Ahtanum Creek were to be handled and dis-

tributed, between the Indians on the one hand, and

the white settlers on the other, the question arises whe-

ther the agreement made for this purpose becomes void

and must be said to be beyond the powers of the Secre-

tary if the arrangement made turns out to be an im-

provident one so far as the Indians are concerned.

As we have said, the implied reservation of the

waters of this stream extended to so much thereof as

was required to provide for the reasonable needs of the

Indians, not merely 2s those needs existed in 1908,

but as they would be measured in 1915, when the In-

22“We do not forget that historically and traditionally

the Secretary of the Interior has been selected as the execu-

tive arm of the Government to execute the declared Con-

gressional policy with the Indians. As such, he and his sub-

ordinates have the responsibility of discharging the obli-

gation of the Government to its Indian wards, and in that

respect, he is given wide discretionary powers to deal with

the individual Indians who are dependent upon the Govern-

ment for tutelage and protection * * * . In the discharge

of these duties, he acts as supervisor, agent, guardian, and

trustee of the Indians and his property, whether in the

nature of lands or restricted funds.” United States v. Anglin

& Stevenson, 145 F. 2d 622, 628, 10th Cir., c.d. 324 U. S. 844.

dian ditch system had been completed. If we assume

that this 1915 need extended to substantially all of the

waters of Ahtanum Creek, then the question is whether,

conceding that the Secretary had the power to make

an agreement for some workable division, can it be said

that he had the power to agree to give to the white

settlers 75 percent of that which the Indians might need

in 1915 and subsequent years?

The record here makes it plain that the only per-

son who gave the proposed agreement any study was

Engineer Code. The agreement was drawn and signed,

not only without consulting the Indians, but without

legal advice. His reference to the “recent Montana

decisions” (see footnote 11, supra), shows that he

knew of the Winters case. Whether he knew that the

Supreme Court had affirmed the case on January 6

preceding execution of the agreement, does not ap-

pear. It seems likely that the force and broad reach

of that decision was not realized by Mr. Code or any

one else in the Interior Department at that date. (See

footnote lla, supra.)

With an opportunity to study the history of the

Winters rule, as it has stood now for nearly 50 years,

we can readily perceive that the Secretary of the In-

terior, in acting as he did, improvidently bargained

away extremely valuable rights belonging to the In-

dians. Perhaps the feature of the whole matter most

worthy of criticism is the apparent failure of the Sec-

retary, before approving such an arrangement, to ob-

tain legal advice either from the Solicitor or from the

Department of Justice, as to the validity or the advisa-

bility of the proposed agreement. Viewing this con-

tract as aa improvident disposal of three-fourths of that

which justly belonged to the Indians, it cannot be said

to be out of character with the sort of thing which Con-

gress and the Department of the Interior has been doing

throughout the sad history of the Government’s dealings

with the Indians and the Indian tribes. That history

largely supports the statement: “From the very be-

ginnings of this nation, the chief issue around which

federal Indian policy has revolved has been, not how to

assimilate the Indian nations whose lands we usurped,

but how best to transfer Indian lands and resources to

non-Indians. *

23 Quotation is from an article on “The Raid on the Res-

ervations” by Dorothy Van de Mark, Harper’s Magazine,

March, 1956, (Vol. 212, No. 1270). The author sketches the

history of our dealings with the Indians, illustrating with ref-

erences to such examples as the Indian Removal Act (4 Stat.

411), the successive removals of the Cherokees from lands

coveted by the white man, and what happened to the reser-

vations under the General Allotment Act of 1887. Another

illustration of this same pattern of giving the Indian the

short end of the stick is found in the way in which Indian

timber is sold for less than market prices, recently com-

mented upon in Squier v. Capoeman, 351 U. S. 1, 4, (foot-

note 7).

Because it has long been the law that there are few

rights granted by treaty to Indians which Congress is coliged

to respect, J.oie Wolf v. Hitchcock, 187 U.S. 553, the general

The numerous sanctimonious expressions to be found

in the acts of Congress, the statement of public offi-

cials, 74 and the opinions of courts respecting “the gen-

erous and protective spirit which the United States

properly feels toward its Indian wards,” Oklahoma Tax

Allotment Act of February 8, 1887, 25 U.S. C. A. 331, was

not open to challenge in the courts, and hence the Indians

were obliged to accept allotments so small that livestock

farming was impractical and the Indians cfien reduced to

leasing the allotments to non-Indians. The so-called sur-

plus unallotted lands were thrown open to white settlers and

sold at nominal prices. (See for example, 33 Stat. 302, relat-

ing to the Flathead Reservation.) When a particular allot-

ment happened to be valuable, the Secretary refused to con-

vey it. Arenas v. Uvited States, supra. The allotments orig-

inally required to be held in trust were in a multitude of

cases caused to be patented in fee to the Indians who pro-

ceeded to sell or mortgage them and thus lose them to the

white owners, a process which goes forward to this day. (For

instance see Laws of 84th Cong., 2nd Sess., Chap. 107, Public

Law 450, approved March 29, 1956; Public Law 539 of the

same Congress, Chap. 326, approved May 28, 1956.) Some-

times the courts have been able to block some of the more

flagrant consequences of this practice. See Glacier County,

Mont. v. United States, 9 Cir., $9 F. 2d 733; Ward v. Love

County, 253 U. S. 17.

24 Governor Stevens to the Yakimas, May 30, 1855: “The

Great Father has learned much of you * * *. I went back

to the Great Father last year to say that you had been good,

you had been kind, he must do something for you * * *.

The Great Father said I want them to have more and larger

farms; I told him you had cattle and horses; he answered

that he wanted your horses and cattle to increase; * * *

Why did the Great Father answer in this way? Why did he

send my brother and myself here this day, to say this to

you? Because you are his children; his red chiidren are as

dear to him as his white children * * *.”

Section 3, Indian Remova! Act, supra: * * * it should

and may be lawful for the President solemnly to assure the

tribe * * * that the United States will forever secure and

guarantee to them * * * the country so exchanged with

wr SS

Comm’n. v. United States, 319 U. S. 598, 607, and the

“high standards for fair dealing required of the United

States in controlling Indan affairs,’ United States v.

Tillamooks, 329 U. S. 40, 47, are but demonstrations

of a gross national hypocrisy.

But we are constrained to hold that since some ar-

rangement for the apportionment of the Ahtanum waters

was the sort of thing which the Secretary was authorized

to do by the grant of general powers of supervision and

management, he therefore had the power to make the

1908 agreement. The Secretary's mistakes, his poor

judgment, his overlooking or ignoring of the true mea-

sure of the Indians’ rights, his lack of bargaining skill

or determination may add up to an abuse of his power,

but do not negative it, or make his act ultra vires.

The most serious argument against our construction

of the statute as granting the Secretary of the Interior

the right to make this contract which took away three-

fourths of the Indians’ water rights, i$ to be found in

the necessary consequences of our holding. In Sho-

shone Tribe v. United States, 299 U. S. 476, the Com-

missioner of Indian Affairs in 1878 agreed to permit

and permitted intruding members of the Arapahoe tribe

to move upon a portion of the Shoshone Indian reserva-

tion which by treaty had been reserved for the Sho-

shone tribe. Thereafter the Commissioner continued

to rule and act on the assumption that the occupancy

of the Arapahoes, who had been brought in with a

show of military force on the partof the Government,

was permanent and righttul. Subsequent recognition

of the occupancy of the Arapahoes was ratified by act

of Congress. It was held that this chain of events

amounted to a taking or an appropriation of the rights

of the Shoshone tribe as of the 1878 action of the Com-

missioner. The court said (p. 497): “Power to con-

trol and manage the property and affairs of Indians in

good faith tor their betterment and welfare may be

exercised in many ways and at times even in derogation

of the provisions of a treaty. Lone Wolf v. Hitchcock,

187 U. S. 553, 564, 565, 566. The power does not ex-

tend so far as to enable the Government ‘to give the

tribal lands to others, or to appropriate them to its own

purposes, without rendering, or assuming an obligation

to render, just compensation ° ° ° ; for that “would

not be an exercise of guardianship, but an act of con-

fiscation.” " ” Here, as we have noted, Congress has

never ratified the act of the Secretary in giving the

Ahtanum waters to the white settlers. Of course, our

holding that the Secretary acted within his powers

means that we sre giving to his conduct in this regard

the same characteristics as an “act of confiscation” as

that which was found to have been accomplished in

Shoshone Tribe v. United States, supra. *

It is clear that the action of the district court in

dismissing the appellant’s suit was error. The suit, like

other proceedings designed to procure an adjudication

of water rights, was in its purpose and effeci one to

quiet title to realty. Rickey Land & Cattle Co. v. Miller

& Lux, 9 cir., 152 F. 11, 15, affirmed 218 U. S. 258.

It presented-claims and issues which required the court

to determine and adjudicate the extent of the rights of

the parties with respect to the waters of the strean.;

a determination of the validity of the 1908 agreement

did not call for the trial court's conclusion that the

United States had no interest whatever in the Ahtanum

waters.

Furthermore, as in the case of other suits to quiet

title, the defendants should have been required to ap-

pear by answer and set forth their claims of right to

the use of the waters of the stream. Reynolds v. Schmidt,

10 cir., 40 F. 2d 238, 240. In general they did not do

so.*6 Thus the answer of Ahtanum Irrigation District

°° This suit was filed July 2, 1947. The record shows that

on July 24, 1951, a few days before the expiration of the

time limited in § 12 of the Act of Aug. 15, 1946 (25 U.S.C. A.

70k) the Yakima Tribe filed a claim based on the 1908 agree-

ment, with the Indian Claims Commission.

“° An exception was the answer cf the Corporation of

the Catholic Bishop.

and of “the above named defendant landowners, water

users, lienholders and encumbrancers whose lands lie

within the boundary of said district,” is wholly unin-

formative as to who these water users are, what lands

they claim to have the right to irrigate, or how they de-

raign their titles to any water rights. In addition to ad-

mitting and denying certain allegations of the complaint,

this answer contains only (1), a plea of laches on the

part of the Indians; (2,, a plea of the statute of limita-

tions as against the owners of Indian lands patented

in fee simple; (3), allegations as to the execution and

validity of the 1908 agreement; (4), the allegation that

the waters in the creek are insufficient to irrigate both

sides thereof; and (5), the allegation that the reserva-

tion lands could obtain water supplies from other sources

in the Indian—reservation without excessive cost. The

sufficiency of these answers was challenged by the

United States in the pretrial statement. Since the cause

must be rernanded for further proceedings in the trial

court, and since those proceedings must determine and

adjudicate the respective rights of the parties, during

which defendants must be required to show and disclose

their rights and titles, it is apparent that proper and

appropriate answers must be required from all de-

fendants. Although a pretrial order was made, it wholly

failed to correct or deal with this insufficiency, of the

answers.

The opinion of the trial court found fault with the

Government’s proof of its water rights, saying: “Since

the government cannot recover upon a claim of right of

the Yakima Indian nation as an entity, but only as the

trustee for several individual Indians who hold trust

patents respectively, the claim of each respective owner

must be specifically set up and proved, and further there

must be proof of acts of some defendant or defendants

which interfere with the trust owners of particular pieces

of property, before the government can require any land-

owner north of the boundary to plead or prove his

claim to ownership of a water right.” With this we dis-

agree. By maps and Indian Office records the United

States showed the location, point of diversion and capaci-

ty of each ditch constructed by Indians, or by the In-

dian Service, and the description, irrigable area and lo-

cation of all reservation lands served by those ditches

with water from Ahtanum Creek. Also shown are the

rate of progress through the years since the creation of

the treaty in getting this water upon these lands. Just

which lands are Indian owned, whether under trust fee

patent, and which are owned by successors of Indian

allottees, also was proven. The quantities of water re-

quired by these lands was both stipulated and proven.

No more was required, for the United States has the

right to make distribution of its waters under such rules

as it may adopt, as provided by 25 U.S. C. A. 381, (note

16, supra). It is no concern of ours which particular

parcels or allotments are served by the Indian Service

ditches, so long 2s adequate proof was made of their

aggregate needs.

It is important that we bear in mind just how the

defendants here must deraign their water rights. The

record indicates, as we have noted, that the bulk of the

waters flowing in Ahtanum Creek would be reguired

for the irrigation of the lands on the reservation which

were susceptible of service through the Indian irrigation

system completed in 1915. The right to the use of that

quantity of water was for the reasons previously indi-

cated originally the exclusive property of the United

States as trustee for the Indian tribe. No portion of

that volume of water or of the right to the use thereof,

was open to appropriaion or other acquisition under

state law by the defendants or their predecessors in

interest. United States v. McIntyre, 9 cir., 101 F. 2d

650, 653-4; cf. Federal Power Comm'n. v. Oregon, 349

U. S. 485. To the extent that the,defendants are to be

permitted to have any part of the use of that portion of

the flow of the stream, their rights are deraigned from

the agreement of 1908. Apart from that agreement,

those defendants would have no right to the use of any

of said waters except in strict subordination of the prior

and better rights of the United States as trustee for the

Indians. Of course, as between themselves, they could

acquire priorities under state law in respect te their use

of the surplus after the interest of the Indians had been

satisfied but in relation to that surplus only.

Again the 1908 agreement was not made between

Engineer Code on the one hand and all citizens of the

state of Washington on the other. The agreement was

made with specified individuals, and since it related

to the use of water, certain qualifications must neces-

sarily be treated as implied conditions thereof. It seems

plain that if this, as other agreements relating to In-

dian rights, is to be construed most strongly in favor

of the Indians, it must be understood that the right to

the use of the 75 percent of the waters must have been

limited te-the needs as of 1908 of the particular indivi-

duals who were parties to the agreement.

In the case of Benton v. Johncox, 17 Wash. 277,

49 P. 495, the Supreme Court of Washington, in a suit

between non-Indian users of water of this same Ahtan-

um Creek, held that the riparian owners of land upon

the stream were entitled to an injunction restraining the

non-riparian owners from diverting or interfering with

the water of the stream; this on the theory that the

common law as expounded in Lux v. Haggin, 69 Cal.

255, 10 P. 674, 753, was the law of Washington at the

tirme when the ownership of these riparian owners was

first initiated. But whether the beneficiaries of the

1908 agreement were dealing as riparian proprietors,

or were confined to such owners, or whether owners

of appropriative rights were included, their interests as

of 1908 were necessari!y limited to their then needs, and

subsequent uses or ownerships could not enlarge their

rights under the arrangement for the division of these

waters.

We hold that at any time when the needs of those

parties to that agreement, as measured in 1908, were

such as to require less than the full 75 percent of the

waters of the stream, then their rights to the use of the

water was -orres,ondingly reduced, and those of the

Indians, in like measure, greater. This fellows from

the proposition that it is a fundamental maxim of the

law of waters that an individual's rights, no matter how

measured or described, can never exceed his needs.

Vineyard Land & Stock Co. v. Twin Falls, etc., Co.,

9 cir., 245 F. 9, 22. It follows also from the general

principle that an agreement of the character of that

executed in 1908, must be construed as reservirig to the

Indians, who previously owned substantially all of the

waters, everything not clearly shown to have been

granted. 27 What we have here referred to are neces-

2? The record indicates that there has from the beginning

been a dispute as tc whether the agreement applied prior to

the season of low water, or in times of early high water. The

records of flow in the Indian Irrigation Service main canal

for the years 1911 through 1929 appear on page 49 of the

Hearings mentioned in note 14, supra. They show a full

head at tne beginning of each season, that in some years the

sarily issues which must be determined by further pro-

ceedings in the trial court, and the parties should be re-

quired by pleading or pretrial agreements to frame such

issues for trial.

Another issue raised by the United States in the

pre-trial order was that the defendants in the use of

their claimed 75 percent of the waters, were wasteful.

Evidence to this effect was offered and received at the

trial. It tended to show irrigation water diverted by the

defendants permitted to run to waste upon highways,

diverted through open channels with no headgates or

measuring devices, old river beds and sloughs used in

place of ditches, and the like. The court never reached

that issue of course for it dismissed the complaint in

its entirety. Waste of irrigation water is not to be

tolerated and in arriving at a determination of the rights

and needs of the defendants, the court must take into

consideration the question of wasteful practices alleged

to have been carried on by the defendants. In a case

of this character an injunction against such waste is an

appropriate part of the decree if the facts developed

cisciose a need for it. Campbell v. Grimes, 62 Kan. 503,

64 P. 62. If waste cannot otherwise be prevented, a

head was never cui to 25 percent, in a few it was so cut for

only a few days, while in most years it wascut to 50 percent

in midseason. The claims of the parties in respect to this

cispute are for adjudication by the trial court in the light of

its determination of the needs of the parties and the other

circumstances of the case.

court may restrain a party from using any water until

his waste is averted. Glaze v. Frost, 44 Ore. 29, 74 P.

336.

Another issue raised by the United States in the

pretrial order is that the defendants have sunk numer-

ous wells by which an additional draft has been made

upon the availabie physical supply of water within

the watershed. This is claimed to be to the detriment

of the United States.

In the process of making a complete adjudication

of the rights of the parties it is appropriate for the court

to inquire into the question of compliance by the de-

fendants not only with the implied but with the ex-

press requirements of the agreement of May 9, 1908.

That agreement contained provisions that the users of

water of Ahtanum Creek must divert the same by sub-

stantial headgates equipped with suitable control ap-

pliances and with measuring devices. It would appear

to be elementary that the court must condition diver-

sion of Ahtanum Creek waters claimed under the 1908

agreement upon compliance with both the express and

the implied conditions of that agreement.

It is thus noted that the record nere lacks both

the statements of claim, and the evidence necessary for

determination of issues required to be decided for a

complete adjudication of the rights of the parties in

this stream. For that reason we have no basis for a

ruling upon appellee's motion for an injunction, and

that application is denied.

The Government has not taken a definite stand in

its argument here with respect to the rights of the

so-called “Class Three Defendants,” namely, the suc-

cessors in interest of the original allottees to whom

patents in fee were issued, describing lands under the

Indian Irrigation ditch. The trial court in its finding

No. 18 found that these patentees or their successors,

had failed, for a period ot more than ten years, to assert

any rights to the 75 percent of the waters of the stream

and had lost any rights thereto. These defendants

claim that as successors to certain original Indian allot-

tees for whom the waters were reserved and for the

benefit of whose lands the Indian ditches were con-

structed, these defendants have acquired a vested in-

terest in and a right to the distribution of the waters

diverted by the United States to the same extent as if

their lands were still in the possession of the original

allottees. That they did originally acquire such a right

through purchase of allotments seems clear from United

States v. Powers, 305 U. S. 527. That case holds that

white transferees of such fee natented Indian allotments

were equally with individual allottees beneficially en-

titled to distribution of the waters diverted for the In-

dian irrigation system.

eee

The question remains whether those of them who

had acquired such interest more than ten years prior

to the institution of this suit are barred by statute of

limitation or laches from now claiming any such par-

ticipation in the benefits of the Government's irriga-

tion system. We think that the answer is to be found

in the fact that in any suit brought by any one or

more of these Class Three efendants, against the other

defendants here, the trustee holder of the water rights

would be a necessary party. Cherry v. Howell, 2 cir.,

66 F. 2d 713. And since the trustee, the United States,

was not susceptible to suit, and could not be made a

party defendant, the rights cf those third party de-

fendants cannot be said to be barred and that they are

now entitled to participate rateabiy with the Indian

beneficiaries in the use of such waters as may be de-

creed to the United States in this suit.

The judgment is reversed and the cause is re-

manded for further proceedings in the court below

not inconsistent with this opinion.

CuHamBeERs, Circuit Judge, concurring:

I concur. J do think that there may be unintended

overtones in what Judge Pope says about the Interior

Department, Assistant Secretary of the Interior Pierce

and Chief Engineer Code which aie a little harsh as

to their conduct in 1908. I assume that the two men

have departed from this vale and 48 vears later they

cannot defend themselves. Even though they may

have known of the Winters decision, those who have

a duty to act today may make mistakes which, in the

course of future events, may indicate bad judgment.

If the 1908 agreement today works a great in-

justice, I think that it is for the Congress to correct the

unfairness if such there be by developing other irrigable

land for the Indians involved. Therefore, I think it is

right that we should uphold the agreement of 1908.

(Endorsed: ) Opinion and Concurring Opinion.

Filed July 10, 1956. Paul P. O’Brien, Clerk.

APPENDIX “D”

(R. 538-583 )

UNITED STATES OF AMFRICA,

Appellant,

AHTANUM IRPIGATION DISTRICT, No. 312

a corporation, et al., )

7 Defendants.

REPORT OF SPECIAL MASTER

PRELIMINARY

By this action, the plaintiff United States of Ameri-

ca, as trustee of the Yakima Tribe of Indians, seeks to

quiet title to the use of waters of Ahtanum Creek for

lands on the Yakima Indian Reservation, now held by

the Indians or their successors in interest. A previous

trial resulted in a judgment of dismissal on the merits,

the judgment being filed November 9, 1954. Plaintiff

appealed to the United States Court of Appeals for the

Ninth Circuit, which on July 10, 1956 reversed the judg-

ment and remanded the cause for further proceedings

not inconsistent with the Court's opinion.

This is an old and long continued fight, bitterly

conducted down through the years as the farmers un

both sides of Ahtanum Creek sought the water which

meant life to their lands, from the inadequate supplies

of the creek. In a letter to the Secretary of the Interior,

dated April 28, 1908, W. H. Code, Chief Engineer of

the Bureau of Indian Affairs, who a few days later was

to sign the 1908 Agreement on behalf of the plaintiff,

characterized this controversy as “ .. . one of the most

complicatea water situations I have ever encountered.”

(Plaintiffs Ex 79-160, page 103). Those who have

dealt with the problem in its many later recurrences,

would find littie reason to amend that statement.

The second trial on the merits was an extended one,

and the positions of the parties were vigorously and

brilliantly presented. it is impossible, in this report, to

cover every conceivabie aspect of the case on all sides;

I hope, however, that the process of reasoning on the

decisive issues has been made clear, as an aid to court

and counsel in later stages of the case. It wouid seem

desirable that, if possible, reference be made to the

material in the Order on Pre-Trial on the Merits, and

to the briefs of the parties, in connection with the initial

consideration of this report.

The opinion of the circuit court (United States of

America v. Ahtanum Irrigation District, et al., 9 Cir. 236

F 2d 321) necessarily guides us in the second trial of

this case. It is well, then, to refer to certain essential

parts uf that opinion, to clarify our present starting

point:

1. The Treaty of 1855 between the United States

and the Confederated Tribes of Yakima Indians, re-

served to the Indians rights to the waters of Ahtanum

Creek for future, as well as current use. By 1915, when

apeinemenear

extensive irrigation works had been completed by the

Indian Service, this reservation, if given full effect,

would have meant that the Indians, needing and able

to use substantially all of the water of Ahtanum Creck

after the period of high run off, would have been en-

titled to it. Defendants would have had no rights to

any Ahtanum water, except as to any surplus, and in

subordination to the higher rights of the Indians. The

decisions in Winters v. United States, 207 U. S. 564, and

Conrad Investment Co. v. United States, 9 Cir. 161 F

829 lead to these conclusions.

(Defendants urge, in their opening brief, page 38,

that this court re-examine and over-rule the Winters

case. They quote recent law review comment critical of

that decision. ln view of the specific holding of the

Court of Appeals, and its directions on re.nand, this

court should uphold and apply the Winters case, rather

than over-rule it. )

2. Defendants would have no right to the use of

Ahtanuu. water needed by the Yakima Indians, unless

they are given that right by the Me.aorandum of Agree-

ment of May 9, 1208, between the United States, acting

through Chief Engineer Code of the Indian Irrigation

Service, and numerous landowners north of Ahtanum

Creek, and cutside the Yakima Indian Reservation. This

agreement was approved by the First Assistant Secre-

tary of the Interior, on June 30, 1908. The 1908 Agree-

ment is therefore the foundation of this case — unless

it gives defendants rights superior to the plainciff, they

have none.

The Court of Appeals gave the 1908 Agreement

its careful attenion, and, although criticizing it as im-

provident, upheld it as a valid exercise of the power of

the Secretary of the interior. This has not ended the

controversy as to the Memorandum of Agreement of

1908. The parties in this second trial are at issue as to

its validity, nature and effect, and this issue should be

considered first.

THE VALIDITY AND NATURE OF THE

MEMORANDUM OF AGREEMENT OF

MAY 9, 1908

Plaintiff asserts that the 1908 Agreement, even if

within the power of the Secretary of the Interior, was a

mere temporary working arrangement, terminable at

will. Defendants consider it a contract and conveyance

of the rignt to 75% of the waters of Ahtanum Creek. If

it is in fact a temporary ‘vorking arrangement, the de-

fendauts would have no rights, and plaintiff, being able

to use substantially all the water of Ahtanum Creek

(United States v. Ahtanum Irrigation District et al, 9 Cir.

236 F 2d 321 @ 325, 327; Order on Pre-Trial on the

Merits, page 4) would be entitled to it.

It is recommended that the court uphold the Mem-

orandum of Agreement of 1908 as a valid and effective

contract and conveyance, subject to a reservation to the

Indians, as set foith in the Opinion of the Court of

Appeals, 236 F 2d 321 @ 341. It is my belief that this

conclusion fo!lows necessarily from the Court of Appeals

opinion.

Defendants, who urge that the Agreement consti-

tutes a conveyance, assert that the Court of Appeals

has determined its validity, but not its nature and effect.

It is true that the Court of Appeals did not specifically

discuss whether it constituted a conveyance. How-

ever, a reading of the opinion leads inevitably to the

conclusion that the Court of Appeals considered the

1908 Agreement effective to deprise the Indians of water

rights previously held, and to vest those rights in the

land owners north of Ahtanum Creek (subject to cer-

tain limitations discussed later ).

The Court of Appeals emphasized (p. 328 of its

opinion) that it was considering the validity and effect

of the 1908 Agreement. Later, (p. 336) it commented,

“It is the view of this court that it could not

have been within the contemplation of Congress

that the Secretary, vested as he was with the gen-

eral power of supervision and management of In-

dian affairs, and of matters arising out of Indian re-

lations, could not make a peaceful arrangement for

a practical mode of use of the waters of this stream.

Again (. 337) appears this statement:

“With an opportunity to study the history of the Win-

ters rule, as it has stood now for nearly 50 years,

we can readily perceive that the Secretary of the

Interior, in acting as he did, improvidently bar-

gained away extremely valuable rights belonging

to the Indians. . . . Viewing this contract as an

improvident disposal of three-fourths of that which

justly belunged to the Indians, it cannot be said to

be out of character with the sort of thing which Con-

gress and the Department of the Interior has been

deing throughout the sad history of the Govern-

—_ dealings with the Indians and the Indian

tribes ....

On page 338, the court commented:

“The most serious argument against our construc-

tion of the statute as granting the Secretary of the

Interior the right to make this contract which took

away three-fourths of the Indians’ water rights, is

to be found in the necessary consequences of our

hoiding. .. . ”

On page 341 appears the following:

“.,.. an agreement of the character of that executed

in 1908 must be construed as reserving to the In-

dians, who previously owned all of the waters,

everything not clearly shown to have been granted.

The concurring opinion (page 342) contains the

following paragraph:

“If the 1908 agreement today works a grea: .njustice,

I think that it is for the Congress to correct the

unfairness if such there be by developing other irri-

gable lanc’ for the Indians involved. Therefore

I think it is right that we should uphold the Agree-

ment of 1908.”

Emphasis in all the foregoing quotations have been

supplied, and the quotations are, of course, out of con-

text. However, they seem to typify the view of the

Court of Appeals that permanent rights to the use of

waters of Ahtanum Creek passed to the north .Je land-

owners.

The court characterized the action of the Secre-

tary “... in giving the Ahtanum waters to the white

settlers...” as an “act of confiscation,” but clearly in-

dicated its conviction that the action, however unjust,

was effective. The court never used the term “tempor-

ary working arrangement” urged by plaintiff as the

proper way to characterize the Agreement. It did reter

to that as having been the view of the Indian Service

(Opinion, p. 333). It used the term “working arrange-

ment” itself, but the very sentence in which it is used

negatives the idea that it was to be temporary (Opinion,

p. 336, 337). If this were a tempo. *"y working agree-

ment, the mere bringing of this action by the United

States would invalidate it; and since defendants have

no rights other than those based on the 1908 Agree-

ment, the Court of Appeals could have decided the en-

tire case for plaintiff, without the necessity for the long

and expensive re-hearing which has followed the first

appea!. Indeed, plaintiff's view that the 1908 Agree-

ment is ineffective because of technical deficiencies

(absence of words of grant, and of acknowledgement,

etc.) could similarly have been presented to the Court

of Appeals, and if plaintiffs view were adopted, the

entire case could have been disposed of then.

It is recognized that the “law of the case” doctrine

is not upheld in federal courts as a rule of substantive

law, but only a discretionary rule of practice. (United

States v. United States Smelting Co., 339 VU. S. 186;

Law'er tv. National Screen Service Corperation, 352

U. S. 992) Nevertheless, the views of the Court of Ap-

peals, so clearly expressed, should guide the District

Court in these “further proceedings . . . not inconsist-

ent with this opinion.”

Independent Analysis

It is believed that an analysis completely inde-

pendent of the Court of Appeal’s opinion, would result

in the same conclusion — that the Agreement of 1908

constitutes an effective conveyance of the rights to 75%

of the waters of Ahtanum Creek (both natural and re-

turn flow).

The following views, on points controverted be-

tween the parties, support this conclusion. The state-

ment will be brief because of the belief that the Court

of Appeals has decided this issue.

1. Questions concerning reai property, and the

manner of its disposition, are governed by the law of

the state where the property is located. United States v.

Fox, 94 U. S. 315; United States v. Burnison, 339 U. S.

87: Woods v. Nainey, 69 F 2d 892.

Under the laws of the state of Washington, and the

law of real property generally, a deed does not have to

follow a specific statutory form (R. C. W. 64.04.060, 26

C J S Deeds #22) nor contain any specific, particular

words of grant. :

2. The 1908 Agreement contains words of grant,

each party “ .. . surrendering and conceding to the

other party all rights heretofore claimed. . . ” in the

natural flow of Ahtanum Creek, in excess of the per-

centage division agreed upon. This wording clearly im-

ports a grant, a transfer of rights. Evans v. United States,

153 U. S. 584 @ 591; Kessles v. Clayes, 125 S W 799

@ 801; Scurry v. Jones, 4 W 468.

It might be mentioned that the conveyance was not

of the corpus of water, but of water rights — of the right

to a stated percentage of the natural flow of Ahtanum

Creek, which right constituted an incorporeal heredita-

ment. Madison v. McNeal, 171 W 669, 19 P 2d 97; 2

Kinney on Irrigation and Water Rights, p. 1328, 1333,

1340.

3. The 1908 Agreement is not invalidated by any

defect in acknowledgement.

Plaintiff asserts the certificates of acknowledge-

ment of landowners north of Ahtanum Creek is faulty in

assertiug that the principal acknowledged the instru-

ment, whereas the agents signed it. If true, this would

invalidate the acknowledgement. 29 A L R 285; 25

A L R 2d 1168.

It is only necessary to read the acknowledgement,

however, to conclude that the agents, not the principcl,

made it. This argument rests entirely upon the capitaliz-

ation of one word. The acknowledgement reads as

follows:

“I, John H. Lynch, a Notary Public in and for said

County and State, do hereby certify that personal-

ly appeared before me . . . (named individual

agents) . . . personally known to me to be the in-

dividuals who executed the within and foregoing

instrument of writing as attorneys in fact for and

on behalf of . . . (named individual principals) . . .

The principals named in said instrument, and each

for himself and not one for the other, acknowledged

to me, that he executed the same as the free and

voluntary act and deed of the said principals and

each of them, for the uses and purposes therein

mentioned.”

It was the agents who appeared before the notary

public; it was the agents who signed the agreement;

it was the agents who acknowledged they had signed

it. The term “The principals” obviously describes the

previously named principals for whom the agents signed.

It is asserted further that there is no acknowledge-

ment of the signature of W. H. Code, Chief Irrigation

Engineer, Indian Bureau, who signed for the United

States. He did, however, sign an attached “affidavit of

disinterestedness,” before the same notary public, in

which he swore he made the contract personally, that

he made it fairly and without benefit or advantage to

himself, or allowing such benefit or advantage corruptly

to any other person. This would appear to meet the

definition of an acknowledgement as a public declara-

tion by the grantor that the act evidenced by the instru-

ment is his act and deed, 25 A L R 2d 1124 @ 1129.

Substantial compliance with statutes regarding acknow-

ledgements is sufficient. Brady v. Frigidaire Sales Corp.

180 W 472, 40 P 2d 166. The policy of the courts has

been to susttain acknowledgements whenever possible,

as long as it is reasonably certain that the grantor made

the acknowledgement ir question. 25 A L R 2d 1124 @

1133.

An acknowledgement in affidavit form (as here) has

been held sufficient, depending upon the particular

wording. First National Bank v. Devore, 110 Ok. 283,

234 P 734; Bownner v. Stroud Bros., 4372 Ark. 569, 289

S W 766.

If it be considered, however, that the acknowledge-

ment of either party is faulty, that would be of little

moment in this case. An unacknowledged, or improper-

ly acknowledged, deed is valid as between the parties.

Ockfen v. Ockfen, 35 W 2d 439, 213 P 2d 614; Fidelity

& Casualty Co. v. Nichols, 124 W 403, 214 P 820.

The United States brought this action; the United

States executed the 1908 Agreement and was a grantor

therein. It cannot now take advantage of any defect in

acknowledgement of its conveyance.

4. Plaintiff argues tha: if any water rights were

transferred away from the United States by the 1908

Agreement, they were mere personal rights, or ease-

ments in gross, which did not become appurtenant to

any land, could not be transferred, and did not survive

the original parties to the 1908 Agreement. This con-

tention is based principally upon the fact that the 1908

Agreement did not contain any description of land upon

which the water was to be used. What was conveyed,

of course, was a water right, and that was definitely

described, and clearly ascertainable. Did the failure to

include land descriptions restrict this conveyance to a

mere personal right or easement in gross? I do not think

so. See Osborn v. Chase, 119 W 476, 205 P 844.

It is important to consider just what this Agreement

was, and what it did. The United States. through En-

gineer Code, made this agreement not with all the citi-

zens of the state of Washington, but with specified in-

dividuals. United States v. Ahtanum Irrigation District,

236 F 2d 321 @ 340. It is not, however, a series of

separate agreements with specified individuals. It is

one agreement with all the individuals, and the prop-

erty rights conveyed were conveyed to all.

James Garfield, the Secretary of the Interior, stated

in a letter of Tanuary 28, 1908:

“It is surely to the best interests of all concerned that

this matter be sett!ed by agreement rather than as

a result of litigation. The settlers will find, as I

told them last summer, that the Indian office de-

sires to meet them half way in effecting a fair settle-

ment, but, as you will readily understand, it is quite

impossible for the Government to attempt to deal

individually with these settlers. . . ”

The Special Powers of Attorney signed by north

side landowners as a basis for the 1908 Agreement em

phasize the nature of that agreement as an aggregate

one. The following excerpts ( Plaintiff's Ex 79-160, page

62) point this up:

. . . true and lawful attorneys to act jointly and

not otherwise.”

“cc

. and to finally settle all controversy between

ourselves as a unit on one side, and said Govern-

ment and Indians as a unit on the other side. . .

“ .. . said attorneys in fact shall have no power to

settle the right to use any of the waters that may be

conceded to the white settlers, or to us, among our-

selves.”

“The object of this Power of Attomey being to auth-

orize a settlement as between us as a whole and the

said Government and Indians whatsoever.”

We do not have the situation of the owner of a

specific tract of land conveying an undisputed water

right to the owner of an adjacent tract. The agreement

was a compromise of conflicting claims to the use of

water of Ahtanum Creek. The 1908 Agreement itself,

in its preliminary statement, reads as follows: (Order

of Pre-Trial on the Merits, page 37)

“That Whereas the parties hereto claim certain quan-

tities of water in the Ahtanum Creek, County of

Yakima, State of Washington, and a right to divert

the same for irrigation purposes; and Whereas, a

dispute exists as to the extent of the respective

rights of the said parties in and to said water,

Now, Therefore, the parties hereto, in order to avoid

litigation and in order to limit and define their

said respective rights in and to the waters of the

said Ahtanum Creek, do mutually covenant and

agree as follows: ... ”

It now appears clear that che north side land own-

ers claim was not as strong as the parties then seemed

to think. Under the authority of th: Winters case, by

1915 when the Ahtanum Indian Irrigation Project sys-

tem was‘completed, plaintiff would have been entitled

tc substantially all the waters of Ahtanum Creek, after

flood season, if the 1908 Agreement had not been exe-

cuted. In 1908, however, the respective rights were in

dispute, and they were settled, not as we have said, by

a series of individual agreements, but by an agreement

referring to “total and aggregate” percentages.

In 1908, and the years immediately preceding,

moreover, there was a Surplus of water beyond the then

needs of the Indians south of Ahtanum Creek, since the

Indian irrigation Project system would not be com-

pleted until 1915. As to that surplus, and as between

themselves, the north side landowners could and did

acquire priorities under state law, in subordination to

the better rights of the United States as trustees for

the Indians.

When the 1908 Agreement was made, the north side

landowners did nc’ assert their respective claims and

rights as individuals. They agreed in this compromise

of disputed claims, to limit and define their “total and

aggregate claim” to 75% of the natural flow of Ahtanum

Creek, and surrendered and conceded any claim to the

rest, to plaintiff. Plaintiff, for its part limited and de-

fined its claim (which, since it acted as trustee, was cer-

tainly aggregate in character) to 25%, and surrendered

and conceded any claim to the rest, to the north side

landowners, actiag in the aggragate as “party of the sec-

ond part.”

The effect of this action was clearly not to convey

specific percentages to specific landowners. It did

drastically reduce the amount and percentage of Ahtan-

um water to which plaintiff would otherwise have been

entitled. Moreover, by conveyance, it increased the “sur-

plus” beyond the claims of the United States as trustee

for the Indians, to which the respective rights of the

north side landowners might apply. It was a surrender

of rights to water in total and aggregate percentages

to these land owners as a class, which only increased the

total amount of water to which their respective priori-

ties acquired before or after under the laws of the State

of Washington, would apply.

Defendants submitted a Memorandum of Authori-

ties urging that as to the portion of the flow of Ahtanum

Creek to be awarded the defendant north side water

users, the law of the state of Washington and prior ad-

iudivations by the state of Washington control. This

memorandum (with which I am in agreement) contains

the following significant statement:

“It is interesting to note that the Ninth Circuit’s de-

cision in no way invalidates the State Court Adjudi-

cation of water rights between or among the North

Side water users. Its holding is limited to the state-

ment that the Sate adjudication could not affect the

waters of Ahtanum Creek belonging to the United

States as trustee for the Indian tribe.”

What has happened here, essentially, is that the

United States, as trustee for the Yakima Indian Tribe,

claimed water from Ahtanum Creek by virtue of the

Yakima Indian Treaty of 1855. The north side land-

owners claimed water by virtue of riparian position and

appropriation (although we now see their enforcible

rights at the time were only as to the surplus over and

above the water needed for the reservation lands). The

disputed claims were compromised, each side limited

its claim to a stated percentage, and surrendered to

the otuer all right to the balance. As to the percentage

awarded the north side free from claim by the United

States, it was ailocated to specific lands and became

appurtenant to those lands — not by virtue of the grant

itself, but by virtue of appropriation under the laws of

the state of Washington.

A limited agreement among users of water from

a creek has been upheld, even without any words of

grant. United States v. West Side Irrigation Co., 230 F

2i4; West Side Irrigation Co. v. United States (CC 9)

246 F. 212. The operative part of the agreement in each

case was that the party “. . . agrees to limit and does

limit its respective right of appropriation from said

Yakima river and its tributaries to the above specified

amount.” Both the district court and court of appeals

for the 9th Circuit upheld such an agreement as a valid

contract, based upon consideration. As Judge Rudkin

said, in the case first cited above:

“Furthermore, the purpose of this agreement was not

to fix or establish existing rights, but to fix and pre-

scribe the rights which the defendant company

would have and exercise in the future. The defend-

ant was under no obligation to sign the agreement

or to relinquish any rights it might have, and the

government was under no obligation to take up irri-

gation works in the Yakima Valley. Both parties,

however, had or claimed rights in the waters of the

river, and they undertook for reasons satisfactory

to themselves, to compromise and settle these rights.

This settlement and compromise was an adequate

consideration for their agreement, and their course

was in full accord with the policy of the law. Such

an agreement should not be set aside except for

cogent reasons established by clear and convincing

proof.”

It is obvious from the Court of Appeals opinion in

this case (U. S. v. Ahtanum Irrigation District, 236 F 2d

321) that the court considered the water rights of the

north side landowners were permanent ones subject, of

course, to an implied reservation and were appurtenant

to the various tracts of land. If these rights had been

merely personal and non-transferable, the passage of

time would have terminated mosi of them, and ihe direc-

tions of the Court of Appeals on the re-trial of this case

would have heen far different.

The Court’s characterization of the act of the United

States in making the 1908 Agreement, as an act of con-

fiscation, its reference to the contract as taking away

three-fourths of the Indian's water rights, its reference

to the necessity for the present defendants to deraign

their water rights, all negative the idea of a temporary,

personal, non-transferable right. The court stated that

“subsequent uses or ownerships” could not enlarge the

1908 rights, but never implied that a transfer of owner-

ship would destroy those rights. We must conclude that

the water rights of the north side landowners are perm-

anent rights, appurtenant to the lands with which they

are connected, even though those lands were not men-

tioned in the 1908 Agreement. Being appurtenant, the

water rights of the respective parties passed with con-

veyance of the lands to which they were appurtenant,

in the absence of contrary provisions in the instrument of

conveyance. Zaine v. Linde, 121 W. 472, 209 P. 1085;

Richland Irrigation District v. United States, 222 F 2d

112.

EFFECT OF THE MEMORANDUM OF

AGREEMENT OF MaAy 9, 1908

The Court of Appeals further set forth its views

as to the effect of this agreement on various aspects of

the present controversy. As in other respects, the parties

are in almost complste disagreement as to how these

directions of the Court of Appeals should be interpreted.

Preliminary to a consideration of these controverted

points, it seems necessary to discuss the nature of this

case, and here again we find the parties in disayree-

ment.

1. I believe that we are here seeking to effect an

aggregate percentage division of Ahtanum waters be-

tween the plaintiff on the one hand, and the defendant

north side land owners on the other, and determine at

what level of flow it takes effect. This is not, as plain-

tiff asserts, a complete water adjudication, with the rela-

tive rights of each water user being determined against

the rights of each other water user. It is true that we

shall have to make a tract by tract analysis of the north

side lands to determine such things as need, and eligi-

bility under the 1908 Agreement. This is done, how-

ever, in order to build up total figures. Just as the 1908

Agreement was a limitation of claim and a conveyance

of gross percentages, so our determination here should

be an aggregate percentage although based upon and

built up from a succession of individual showings. This,

I believe, is what the Court of Appeals meant in the

following quotations from Page 339 of its opinion:

“It is clear that the action of the cistrict court in dis-

missing the appellant s suit was error. The suit, like

other Decade designed to procure an adjudi-

cation of water rights, was in its purpose and effect

one to quiet title to realty. Rickey Land & Cattle

Co. v. Miller & Lux, 9 cir., 152 F. 11, 15 affirmed

218 U. S. 258. It presented claims and issues which

required the court to determine and adjudicate the

extent of the rights of the parties with respect to

the waters of the stream; a determination of the

validity of the 1908 agreement did not call for the

trial court’s conclusion that the United States had

no interest whatever in the Ahtanum waters.”

... Since the cause must be remanded for further

proceedings in the trial court, and since those pro-

ceedings must determine and adjudicate the re-

spective rights of the parties, during which defend-

ants must be required to show and disclose their

rights and titles, it is apparent that proper and ap-

me answers must be required from all de-

endants. . . ”

The Court of Appeals also (page 341) referred to

. . . the process of making a complete adjudication

of the rights of the parties.” Again, this seems to mean

the rights of the parties to this case — the right, of the

plaintiff as against the defendants, and the right of the

defenJants as against the plaintiff, not the rights of

the defendants as among themselves.

2. There has previously been a full water adjudi-

cation as among the north side landowners — the de-

fendants in this case and their predecessors in interest.

This was under Washington state law, and is set forth

In Re Ahtanum Creek, 139 W 84, 245 P 758. The United

States was not a party to that case, and it has previously

been held that tue United States is not bound by it (Tr

6364 ). The fact, therefore, that the state court considered

75% of the water of Ahtanum Creek to belong to the

north side, does not bind the United States, or this

court, in the present case. Nor does a specific award of

water in that case prove need or use at the present time

for our purposes.

As between the defendants themselves, however,

and as to whatever quantity of water is finally allocated

to them the decree in In Re Ahtanum (which is often

referred to in the present case as the Achepol Decree )

is valid and binding. No new adjudication of those

rights as among themselves, should be att-~ptec in

this court.

It has previously been emphasized that the con-

veyance o: water to the north side landowners in the

1908 Agreement merely increased the “surplus” as to

which individuals could acquire rights and priorities

under state law. United States v. Conrad Inv. Co., 156

F 123 @ 127; United States v. McIntire, 101 F 2d 650;

Federal Power Commissioners v. Oregon, 349 U S 435.

This court may reduce the amount of water allocated to

the defendants, if that course is justified by the law and

the tacts. It may not, I believe, determine who among

them will receive wha: quantity of water.

The recommendation, therefore, is that the court up-

hold the 1908 Agreement as a valid and effective con-

veyance of water rights to the north side signatories,

which rights became appurtenant to specific lands under

state law. Further it is considered that this case aims at

a percentage division between the north and south side,

without directing either plaintiff or defendants as to

how that water shall be divided.

We must next examine what procedure is necessary

to arrive at the final percentages in view of the 1908

Agreement, and here we begin with the directions of

the Court of Appeals as to the manner of retrial of this

case.

Referring to the 1908 Agreement, the court said, on

page 340 of the opinion:

“It seems plain that if this, as other agreements re-

lating to Indian rights, is to be construed most

strongly in favor of the Indians, it must be under-

stood that the right to the use of the 75 percent of

the waters must have been limited to the needs as of

1908 of the particular individuals who were parties

to the agreement.” . . .

“But whether the beneficiaries of the 1908 agree-

ment were dealing as riparian proprietors, or were

confined to such owners, or whether owners of ap-

propriative rights were included, their interests as

of 1908 were necessarily limited to their then needs,

and subsequent uses or ownerships could not en-

large their rights under the arrangement for the di-

vision of these waters.

We hold that any time when the needs of those

parties to that agreement, as measured in 1908, were

such as to require less than the full 75 percent of

the waters of the stream, then their rights to the use

of the water was correspondingly reduced, aud

those of the Indians, in like measure, greater. This

follows from the proposition that it is a fundamental

maxim of the law of waters that an individual's

rights, no matter how measured or described, can

never exceed his needs. Vineyard Land & Stock Co.

v. Twin Falls, etc. Co., 9 cir., 245 F. 9, 22. It fol-

lows also from the general principle that an agree-

ment of the character of that executed in 1908, must

be construed as reserving to the Indians, who previ-

ously owned substantially all of the waters, every-

thing not clearly shown to have been granted.” . . .

3. Defendants object to construing of the 1908

Agreeinent most strongly in favor of the Indians. They

assert that this rule of construction has been applied in

case of treaties or agreements between the United States

on one hand, and Indian Tribes on the other because of

the great disparity of bargaining power in such a situa-

tion. State v. Tulee, 7 W 2d 125, 109 P 2d 280.

In certain cases of contracts by governmental agen-

cies on behalf of Indian tribes there has been no con-

struction in favor of the Indians. United States v. Harris,

100 F 2d 268; United States v. Algonia Lumber Co.,

305 U § 415; 83 L Ed 260. In these cases, lumber con-

tracts on behalf of Indian tribes seem to have been given

the ordinary construction of contracts, but without dis-

cussion of this doctrine. See also 42 C J S Indians, #18

Contracts.

Although favorably disposed toward the position

of defendants in this respect as a general proposition,

1 feel that the Court of Appeals has clearly indicated its

view that the 1908 Agreement is to be construed most

strongly in favor of the Indians, and that, therefore,

among other results, the rights of the north side signa-

tories were limited to their needs as of 1908. This con-

struction, favorable to the Indians, will be followed

throughout this report.

4. The language of the court, above quoted, im-

plies a reservation to the Indians, by construction of the

1908 Agreement. Again we find differing views among

the parties as to what the court meant, so again a dis-

cussion of the issue is indicated.

Defendants point out that there is nothing in the

1908 Agreement which provides for a reverter or for-

feiture of the water rights conveyed. The Court of

Appeals, however, has specifically found that there is

an implied reservation to the Indians of everything not

clearly shown to have been granted. Based on this im-

plied reservation, it has held that “. . . at any time when

the needs of those parties to that Agreement, as mea-

sured, in 1998 were such as to require less than the fu!l

75 per cen! of the waters of the stream, then their rights

to the use of the water was correspondingly reduced, and

those of the Indians, in like manner, greater.”

1 do not agree with defendant's theory, advanced

on page 36 of their Opening Brief on Trial on the Merits,

that this refers only to a temporary reverter to the In-

dians on occasions when the north side lands do not

need and cannot use a full 75 per cent of the stream. To

me, this sentence means a permanent increase in the

Indian’s water rights. It is true, and follows from the

nature of the 1908 Agreement that on any occasions

when the north side lands do not need and cannot

beneficially use a full 75 per cent of the waters of Ah-

tanum Creek (e. g. the early run off, or a sudden freshet

during the low water period) the excess belongs to the

Indians, even though beyond the 25 per cent limitation

of the 1908 Agreement.

This sentence, I take it, means more. It means that

if, through change of use of land, abandonment of farm-

ing operations, etc. the north side lands originally en-

titled to Ahtanum water no longer require a ful! 75 per

100

cent of the waters of the stream then the right to the

unneeded portion permanently reverts to the Indians,

and no subsequently renewed demand on the north side

would re-establish those rights.

We are dealing, however, in this question, as in

others, with gross percentages. Plaintiff's interpretation

seems likewise unacceptable. Plaintiffs view is that this

question of reversion is to be considered on the basis of

the United States on one side, against each individual

north side tract on the other — so that if it developed

that a particular tract on the north side, entitled to and

needing water in 1908, no longer needed it, that water

would go to the plaintiff, for use on the south side.

The conveyance, however, vas to the north side

signatories as a group, and then, among themselves and

by state law, they acquired individual rights to that water

in a system of priorities. If, in a given year, nature pro-

videc an unusually large supply, there was simply more

for the qualified water users to share. Similarly, if the

owner of a particular water right abandoned it, that

simply reduced the number of claimants on the total

supply or percentage of water which had been conveyed

by the plaintiff. It is only if the qualified north side

landowner, as a group need less than the 75 per cent

of Ahtanum waters conveyed to them or their predeces-

sors, that the reversion of the unneeded water to plain-

tiff takes place.

101

The langauge of the Court of Appeals, tying this

reversion to a requirement for less than the full 75 per

cent of the waters of the stream, confirms this view, and

refutes plaintiff's theory.

DETERMINATION OF DIVISION OF WATERS

How, under the 1908 Agreement, and the opinion

of the Court of Appeals, do we resolve this controversy

and divide the waters of Ahtanum Creek? The proced-

ure which seems logical will be outlined and then spe-

cific application made in the proposed findings of fact,

conclusions of law, and decree.

l. Our first consideration, in determining the

proper present division of Ahtanum water between the

parties, is the need for that water in 1908 by the north

side landowners who were parties to the 1908 Agree-

ment. What need has been proven? Did they actually

need 75 per cent of Ahtanum water at that time? This,

of course, involves a tract by tract, analysis of the proof

presented by the parties, and a determination of what is

meant by “need” — another subject of considerable ~on-

troversy between the parties.

2. Having determined need, and having deter-

mined the lands which were owned by signers of the

1908 Agreement, the lands which could use Ahtanum

water, and needed it, inquiry must be made as to de-

raignment of titles to that land to the present defen-

102

dants. Insofar as the division of water north and south is

concerned, only those rights are counted which are de-

raigned from the parties to the 1908 Agreement. If the

Achepol decree has awarded priorities which have no

connection with the 1908 Agreement, those rights may

be valid under state law, as among the north side land-

owners. We are not concerned with them here, how-

ever, nor will they contribute in any way to the per-

centage to be allocated the north side.

3. Supplementing the process of deraigning titles,

will be an examination into change of use of the lands

originally included within the 1908 Agreement. We are

directed by the Court of Appeals that users or owner-

ships subsequent to 1908 will not enlarge rights of de-

fendants under the arrangement for the division of

waters. On the other hand, where lands originally need-

ing Ahtanum water, later needed less water, or none at

all, because of change of use, that reduced demand

must be reflected in an over-all reduced need for Ab-

tanum water on the north side.

Other issues, such as alternative sources of water,

and waste of Ahtanum water must be given very care-

ful consideration, but the three considerations just men-

tioned seem the basic ones, and I shall discuss them

more completely before proceeding to other issues.

1. Need for Ahtanum Water in 1908.

103

It is plantiff’s view (Plaintiff's Openmg Brief, page

3) that defendants have failed to prove what the needs

for water were in 1908. Defendants contend ( Defer-

dants Opening Brief, page 10) they have established it

by proof of certificates of water rights issued in accord-

ance with the Decree in the Achepol case, and further

by the oral testimony of a number of “old timers,” as to

the irrigated status of land in 1908.

The water rights certificate (Defendants Exhibits

30 and 31) issued to north side landowners, and based

upon the Achepol Decree of May 7, 1925, appear un-

acceptable as proof of need for water in 1908. For one

thing, if the Achepol Decree itself does not bind the

United States iu this controversy (and that seems estab-

lished) an allocation of water based upon that decree

would, by the same reasoning, not bind the United

States. Also, the certificates themselves do not award

one inch per acre, but set that as the maximum allow-

ance. The following excerpt from one of the certificzizs

listed in Exhibit 31 is typical:

“That the amount of water to which said right is en-

titled is limited to the quantity which is reasonably

and actually necessary for the purpose aforesaid

and shall not exceed 2.6 second feet for the irriga-

tion of 130 acres of the lands hereinafter described

The above maximum limit would, of course, con-

stitute one inch per acre. The Report of the Referee in

104

the Achepol case (Defendants Exhibit 14, page 11) in-

dicetes that because water in the Ahtanum Valley is not

obtainable during the last half of the irrigation season

“ _.. at amount has been alloted to the lands that will

enable the water users to apply sufficient quantities

that will cause ground storage and partially carry the

moisture through the period where the creek has reached

a low stage.” This is obviously not intended as a season

long allocation.

It is also important that the decree in the case of

Benton v. Johncox, entered April 11, 1896 (see Defen-

dants Exhibit 118) which decree was in effect at the »

time of the 1908 Agreement, provieds as follows, on

page 14:

“It is further considered, adjudged and decreed, that

whenever under this Decree, persons are entitled to

take water 7 appropriation, that they are entitled

to one-half of a miner's inch to each acre.”

Benton v. Johncox, was not, as defendants empha-

size, a general adjudication of all Ahtanum water rights.

It was, however, the one ruling of a court which had

considered the need for, and use of water north of Ah-

tanum Creek prior to the 1908 Agreement. It is cer-

tainly not to be ignored, especially in view of the dif-

ficulties in determining what the facts were in 1908. If

another court, 17 years after the 1908 Agreement felt

a higher award proper, that does not prove that the need

105

had become greater by 1908. We must remember the

admonition of the Court of Appeals, that uses or owner-

ships subsequent to 1908, could not enlarge the rights

of the north side landowners, their interests as of 1908

being limited to their then needs.

Plaintiff's view, that the needs of the north side

parties to the 1908 Agreement, mean the quantity of

water actually being applied by them at that time to a

beneficial use, is not persuasive. Need and use are not

the same things. It would be possible for water users to

need far more water than they used in a particular per-

iod. If the 1908 use determined the north sides 1908

need, the quantity of snow which fell in the mountains

the preceding winter would determine the farmer's need

for water; and if a drought had occured that year, it

would mean the north side farmers needed little water

(since, having little available, they would have used

little). The amount of water actually put to a bene-

ficial use in the face of abundant water supplies, could

well be an accurate indication of need. Since the Ah-

tanum Valley does not have abundant water supplies,

the suggested test is not valid.

Ou the other hand, need can not be related to any

ideal water supply, or crops, but to the acutual need for

water in respect to the crops grown in 1908 — even

though the selection of crops was influenced by limita-

tions in water supply. If all the north side lands had

106

grown hops in 1908, a tremendous need for late water

could be shown. Possibly, with unlimited late water,

that would have been the situation in 1908, but it did

not occur, and the need for water must be related to

conditions as they existed.

The 1908 Agreement, of course, related principally

to the “natural flow” of Ahtanum Creek. It does not

appear, however, that defendants are under the burden

of proving that each drop of water used or needed on

their lands is “natural flow” in origin, in order to have

it credited to them under the 1908 Agreement. That

Agreement, after providing in Article 3 for the measure-

ment of Ahtanum water, reads as follows:

“The total amount of water thus ascertained shall be

deemed the natural flow of Ahtanum Creek and

the party of the first part shall receive twenty five

per cent (25%) thereof as the amount of said waters

to which it is entitled by virtue of this agreement,

for use on its lands south of said stream; provided,

however, that it appears at any time that there is

an appreciable seepage or return flow to the main

channel of said stream below said point of measure-

ment, then such seepage or return flow shall be

divided between the parties hereto in the same pro-

portion as herein provided for the division of the

natural flow of said stream.”

No provision comparable to this, and relating to the

north side, appears in the Agreement. It seems clear

that the south side is guaranteed 25% of the measured

water (whether the stream gains or loses between point

107

of measurement and diversion) and the north side takes

the rest, it all being considered natural flow in the ab-

sence of proof of an appreciable seepage or return flow

in the main stem of Ahtanum below the point of diver-

sion.

Defendants introduced evidence from a number of

so-called “old timers” as to the acres irrigated on various

tracts in 1908, and as to the type of crops and need for

water. This testimony begins in Volume 21, of the Record

of Proceedings in the Trial on the Merits, at page 4816.

Plaintiff argues that this testimony does not establish

acreages irrigated, source of water, need for water ( par-

ticularly in the latter par: of the irrigation season) or

crop patterns. This testimony is judged ou an individual

basis in the preparation of the findings of fact, but some

comment seems proper at this point. Much of the old

timers’ testimony, of course, is general in character —

they painted with broad strokes. It must be remembered

that this testimony was given largely in 1958, fifty years

after the year of the 1908 Agreement. If the trial on

the merits had occurred ten years later in this long sus-

tained controversy, few, if any, of the old timers would

have been around to testify at all. The testimony they

did give (and it must be remembered that this is only

a general comment) seems clearly admissible, and en-

titled to consideration and weight. In the absence of

contradictory records or other substantial positive testi-

108

mony as to 1908 conditions, it appears sufficient weight

to prevail.

To determine total or aggregate needs for water, of

course, we must ascertain, first, how much land was irri-

gated by natural flow Ahtanum water in 1908 and sec-

ond, how much water per acre was needed, in terms of

acre feet, and in terms of continuous flow.

As to the first point the testimony of the old timers

seems the most reliable in the record. Even though

they are, of necessity, testifying long after the events,

they speak from their own observation of conditions

which were close and important to them. This estimate

seems more reliable than the estimate contained in the

report of October 1, 1907 of Joseph Jacobs, District

Engineer for the U. S. Reclamation Service, which was

‘based on a reported survey of 1907 (Plaintiff's Exhibit

79-160, page 170). Also the Code Report of October

11, 1907 ( Plaintiff's Exhibit 79-6) contains an estimate

of 5500 acres irrigated north of Ahtanum Creek, but

emphasizes that the figure is only an approximation,

based partly at least upon conversation with land-

owners. All in all, the testimony of the old timers seems

more entitled to credence.

From the irrigated acreage in 1908 as so deter-

mined, the next step is to ascertain the aggregate need

for water of the north side parties to the 1908 Agree-

109

ment. The old timers could not offer specific, measured

figures. They could, however, tell of the crops they

grew, and the principal crops were shown ie ke grain,

grass hay, grass pasture, and hops.

From this testimon:, defendants assumed a crop

pattern for 1908 of 30% grain, 30% grass hay, 30% grass

pasture, and 10% hops, as being based v >on evidence in

the record. This assumed p2ttern was presented to Max

R. Jensen, an expert witness for defendants, as a basis

for a determination of diversion requirements in 1908,

to raise these crops, in the stated proportions, on the irri-

gated acreage. Mr. Jensen's calculation of cousumptive

use for various crops, and his estimate of diversion duty

by adding “allowable” field loss and canai loss, was ridi-

culed by plaintiff throughout much of the trial on the

merits. It seemed very reasonable and impressive to me.

The principal difficulty comes with regard to the as-

sumed cropping pattern. These were the main crops

grown in 1908, all right, but was this the percentage

pattern? The crops might well have been divided this

way, but were they in fact? I have found no such esti-

mate by any of the old timers, nor have defendants re-

ferred to any. If this pattern were established by compe-

tent evidence, I would be prepared to accept defendants

calculations of needs as made by Mr. Jensen in De-

fendants Exhibit 187. The would result in a finding of

a diversion requirement in continuous flow in miner’s

110

inches per acre as follows: May, .670; June, .855; July,

.990; August, .620; September, .355, and October, .065,

for a total diversion duty per acre of 4.4 acre feet.

Probably such a finding would have sufficient basis

in the record, but my own view is that the precise pat-

tern has not been established, even if a rough approxi-

mation might have been.

What other proof, if any is in the record as to needs

for water in 1908? We know, for one thing, that at

that time most of the north side landowners were oper-

ating under the decree in Benton v. Johncox, which en-

titled the appropriators to one-half miner’s inch per

acre. Plaintiff is not, of course, bound by this decree,

any more than by the Achepol Decree. However, it is

true that these appropriators cou!d not legally use move

than one-half miner's inch per acre.

There is other contemporary evidence. The Jacob's

report of October 1, 1907 (Plaintiff's Exhibit 79-160,

page 171) concludes a flow of 25 cubic feet per second

in the Ahtanum, would not, under the methods in vogue,

properly irrigate more than 2500 acres. Thus a flow of

one cubic foot per second per 100 acres, or one-half

miner's inch per acre, was required for pro

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