# Appendix — Ahtanum Irrigation District v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1965
- **Citation:** 381 U.S. 924

## Text

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
A

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

a

2.

3

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

6

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

7

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

8

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

9

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,

10

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

11

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-

12

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

13

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.

14

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.

15

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

16

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.

17
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

18

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

19

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,

20

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

21

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

22

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.

25
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.

26

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.”

27
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.

28
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.”

29

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

30

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; * *

31

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.

32

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.)

33

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-

34

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

35

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

36
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.

37

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

38

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

39
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!

40

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.

41

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

42

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

43

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.

44

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-

45

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.

46

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

47

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.

48

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).

49

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,

50

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

5l

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.”

52

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

53

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

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

55
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

56

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

57

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

58

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.

59

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

60

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

61

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

62

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

63

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

64

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.

65
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.

66

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

67

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

68

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,

69

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

70

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.

71

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

72

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

73

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

74

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.

75
APPENDIX “D”

(R. 538-583 )
UNITED STATES OF AMFRICA,
Appellant,
v.
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,

76

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

or

apeinemenear

77

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-

78

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

79

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.

4
Again (. 337) appears this statement:

\
i

80

“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.”

81

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,

82

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.

83

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

84

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0544%3A3. Public record. Not legal advice.