# Opinion — Winters v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opinion
- **Published:** January 1, 1908
- **Citation:** 207 U.S. 564

## Text

WINTERS v. THE UNITED STATES.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH
CIRCUIT.

No. 158. Argued October 24, 1907.—Decided January 6, 1908.

The rule that all the parties must join in an appeal or writ of error unless
properly detached from the right so to do applies only to joint judg-
ments and decrees. This court has jurisdiction of an appeal taken or
writ of error sued out by one of several defendants if his interest is sepa-
rate from that of the other defendants.

In a suit against several defendants as trespassers in which some of them
defaulted and others answered, held, that each defendant was a sep-
arate trespasser and that while those who defaulted were precluded
from questioning the correctness of the decree entered against them,
the answering defendants had nothing in common with the others and
could maintain an appeal without them.

In a conflict of implications, the instruments must be construed according
to the implication having the greater force; and, in the interpretation
of agreements and treaties with Indians, ambiguities should be resolved
from the standpoint of the Indians.

In view of all the circumstances of the transaction this court holds that
there was an implied reservation in the agreement of May 1, 1888, 25
Stat. 124, with the Gros Ventre and other Indians establishing the Fort
Belknap Reservation, of a sufficient amount of water from the Miik
River for irrigation purposes, which was not affected by the subsequent
act of February 22, 1889, 25 Stat. 676, admitting Montana to the Union,
and that the water of that river cannot be diverted, so as to prejudice
this right of the Indians, by settlers on the public lands or those claim-
ing riparian rights on that river.

The Government of the United States has the power to reserve waters of
a river flowing through a Territory and exempt them from appropriation
under the laws of the State which that Territory afterwards becomes.

148 Fed. Rep. 684, affirmed.

WINTERS v. UNITED STATES. 565
207 U.S. Statement of the Case.

THis suit was brought by the United States to restrain ap-
pellants and others from constructing or maintaining dams
or reservoirs on the Milk River in the State of Montana, or in
any manner preventing the water of the river or its tributaries
fron. fowing to the Fort Belknap Indian Reservation.

An interlocutory order was granted, enjoining the defend-
ants in the suit from interfering in any manner with the use
by the reservation of 5,000 inches of the water of the river.
The order was affirmed by the Circuit Court of Appeals. 143
Fed. Rep. 740. Upon the return of the case to the Circuit Court,
an order was taken pro confesso against five of the defendants.
The appellants filed a joint and several answer, upon which
and the bill a decree was entered making the preliminary in-
junction permanent. The decree was affirmed by the Circuit
Court of Appeals. 148 Fed. Rep. 684.

The allegations of the bill, so far as necessary to state them,
are as follows: On the first day of May, 1888. a tract of land,
the property of the United States, was reserved and set apart
‘as an Indian reservation as and for a permanent home and
abiding place of the Gros Ventre and Assiniboine bands or
tribes of Indians in the State (then Territory) of Montana,
designated and known as the Fort Belknap Indian Reserva-
tion.” The tract has ever since been used as an Indian reserva-
tion and as the home and abiding place of the Indians. Its
boundaries were fixed and defined as follows (25 Stat. 124):

“Beginning at a point in the middle of the main channel of
Milk River, opposite the mouth of Snake Creek; thence due
south to a point due west of the western extremity of the Little
Rocky Mountains; thence due east to the crest of said moun-
tains at their western extremity, and thence following the
southern crest of said mountains to the eastern extremity
thereof; thence in a northerly direction in a direct line to a
point in the middle of the main channel of Milk River opposite
the mouth of People’s Creek; thence up Milk River, in the mid-
dle of the main channel thereof, to the place of beginning.”

Milk River, designated as the northern boundary of the

566 OCTOBER TERM, 1907.
Statement of the Case. 207 U.S.

reservation, is a non-navigable stream. Large portions of
the lands embraced within the reservation are well fitted and
adapted for pasturage and the feeding and grazing of stock,
and since the establishment of the reservation the United States
and the Indians have had and have large herds of caitle and
large numbers of horses grazing upon the land within the
reservation, “being and situate along and bordering upon said
Milk River.” Other portions of the reservation are “adapted
for and susceptible of farming and cultivation and the pursuit
of agriculture, and productive in the raising thereon of grass,
grain and vegetables,” but such portions are of dry and arid
character, and in order to make them productive require large
quantities of water for the purpose of irrigating them. In 1889
the United States constructed houses and buildings upon the
reservation for the occupancy and residence of the officers in
charge of it, and such officers depend entirely for their do-
mestic, culinary and irrigation purposes upon the water of the
river. In the year 1889, and long prior to the acts of the de-
fendants complained of, the United States, through its officers
and agents at the reservation, appropriated and took from the
river a flow of 1,000 miners’ inches, and conducted it to the
buildings and premises, used the same for domestic purposes
and also for the irrigation of land adjacent to the buildings and
premises, and by the use thereof raised crops of grain, grass
and vegetables. Afterwards, but long prior to the acts of the
defendants complained of, to wit, on the fifth of July, 1898,
the Indians residing on the reservation diverted from the river
for the purpose of irrigation a flow of 10,000 miners’ inches
of water to and upon divers and extensive tracts of land,
aggregating in amount about 30,000 acres, and raised upon
said lands crops of grain, grass and vegetables. And ever
since 1889 and July, 1898, the United States and the Indians
have diverted and used the waters of the river in the manner
and for the purposes mentioned, and the United States “has
been enabied by means thereof to train, encourage and accus-
tom large numbers of Indians residing upon the said reserva-

WINTERS v. UNITED STATES,

207 U.S. Statement of the Case.

tion to habits of industry and to promote their civilization and
improvement.” It is alleged with detail that all of the waters
of the river are necessary for all those purposes and the pur-
poses for which the reservation was created, and that in further-
ing and advancing the civilization and improvement of the
Indians, and to encourage habits of industry and thrift among
them, it is essential and necessary that all of the waters of the
river flow down the channel uninterruptedly and undimin-
ished in quantity and undeteriorated in quality.

It is alleged that “ notwithstanding the riparian and other
rights” of the United States and the Indians to the unin-
terrupted flow of the waters of the river the defendants, in
the year 1900, wrongfully entered upon the river and its tribu-
taries above the points of the diversion of the waters of the
river by the United States and the Indians, built large and
substantial dams and reservoirs, and by means of canals and
ditches and waterways have diverted the waters of the river
from its channel, and have deprived the United States ana the
Indians of the use thereof. And this diversion of the water,
it is alleged, has continued until the present time, to the ir-
reparable injury of the United States, for which there is no
adequate remedy at law.

The allegations of the answer, so far as material to the present
controversy, are as follows: That the lands of the Fort Belknap
Reservation were a part of a much larger area in the State of
Montana, which by an act of Congress, approved April 15, 1874,
c. 96, 18 Stat. 28, was set apart and reserved for the occupation
of the Gros Ventre, Piegan, Blood, Blackfoot and River Crow
Indians, but that the right of the Indians therein “was the bare
right of the use and occupation thereof at the will and sufferance
of the Government of the United States.” That the United
States, for the purpose of opening for settlement a large por-
tion of such area, entered into an agreement with the Indians
composing said tribes, by which the Indians “ ceded, sold, trans-
ferred and conveyed” to the United States all of the lands em-
braced in said area, except Fort Belknap Indian Reservation,

568 OCTOBER TERM, 1907.

Statement of the Case. 207 U.S.

described in the bill. This agreement was ratified by an act
of Congress of May 1, 1888, c. 213, 25 Stat. 113, and thereby
the lands to which the Indians’ title was thus extinguished be-
came a part of the public domain of the United States and
subject to disposal under the various land laws, “and it was
the purpose and intention of the Government that the said
land should be thus thrown open to settlement, to the end that
the same might be settled upon, inhabited, reclaimed and cul-
tivated and communities of civilized persons be established
thereon.”

That the individual defendants and the stockholders of the
Matheson Ditch Company and Cook’s Irrigation Company were
qualified to become settlers upon the public land and to ac-
quire title thereto under the homestead and desert land laws
of the United States. And that said corporations were organ-
ized and exist under the laws of Montana for the purpose of
supplying to their said stockholders the water of Milk River
and its tributaries, to be used by them in the irrigation of their
lands.

That the defendant, the Empire Cattle Company, is a corpo-
ration under the laws of Montana, was legally entitled to pur-
chase, and did purchase, from those who were qualified to ac-
quire them under the desert and homestead land laws of the
United States, lands on the Milk River and its tributaries, and
is now the owner and holder thereof.

That the defendants, prior to the fifth day of July, 1898, and
before any appropriation, diversion or use of the waters of
the river or its tributaries was made by the United States or
the Indians en the Fort Belknap Reservation, except a pump-
ing plant of the capacity of about 250 miners’ inches, without
having notice of any claim made by the United States or the
Indians that tnere was any reservation made of the waters
of the river or its tributaries for use on said reservation, and
believing that all the waters on the lands open for settlement
as aforesaid were subject to appropriation under the laws of
the United States and the laws, decisions, rulings and custoins

WINTERS v. UNITED STATES. 569

207 U.S. Statement of the Case.

of the State of Montana, in like manner as water on other por-
tions of the public domain, entered upon the public lands in
the vicinity of the river, made entry thereof at the United States
land office, and thereafter settled upon, improved, reclaimed
and cultivated the same and performed all things required to
acquire a title under the homestead and desert land Jaws, made
due proof thereof, and received patents conveying to them,
respectively, the lands in fee simple.
That all of said lands are situated within the watershed of
the river, are riparian upon the river and its tributaries, but
are arid and must be irrigated by artificial means to make them
inhabitable and capable of growing crops.
That for the purpose of reclaiming the lands, and acting un-
der the laws of the United States and the laws of Montana, the
defendar‘.,, respectively, posted upon the river and its tribu-
taries, at the points of intended diversion, notices of appropria-
tion, stating the means of diversion and place of use, and
thereafter filed in the office of the clerk and recorder of the
county wherein the lands were situated a copy of the notices,
duly verified, and within forty days thereafter commenced the
construction of ditches and other instrumentalities, and com-
pleted them with diligence and diverted, appropriated and ap-
plied to a beneficial use more than 5,000 miners’ inches of the
waters of the river and its tributaries, or 120 cubic feet per
second, irrigating their lands and producing hay, grain and
other crops thereon. The defendants and the stockholders
of the defendant corporations have expended many thousands
of dollars in constructing dams, ditches and reservoirs, and in
improving said lands, building fences, and other structures,
establishing schools and constructing highways and other im-
provements, usually had and enjoyed in a civilized community,
and that the only supply of water to irrigate the lands is from
Milk River. If defendants are deprived of the waters their
lands cannot be successfullv cultivated, and they will become
useless and homes cannot be maintained thereon.
That there are other lands within the watershed of the

570 OCTOBER TERM, 1907.

Statement of the Case. 207 U.S.

Milk River and its tributaries and dependent upon its waters
for irrigation upon which large numbers of persons have settled
under the land Jaws of the United States and are irrigating and
cultivating the same by means of said waters, and have assisted
the defendants “in establishing a civilized community in said
country and in building and maintaining churches, schools,
villages and other elements and accompaniments of civilization ;
that said communities consist of thousands of people, and if
the claim of the United States and the Indians be maintained,
the lands of the defendants and the other settlers will be
rendered valueless, the said communities will be broken up
and the purpose and object of the Government in opening said
lands for settlement will be wholly defeated.”

It is alleged that there are a large number of springs on the
reservation and several streams from which water can be ob-
tained for stock and irrigation purposes, and particularly these:
People’s Creek, flowing about 1,000 inches of water; Big Horn
Creek, flowing about 1,000 inches; Lodge Pole Creek, flowing
about 600 inches of water; Clear Creek, flowing about 300
inches. That all of the waters of these streams can be made
available for use upon the reservation, and that it was not the
intention of the Government to reserve any of the waters of
Milk River or its tributaries. That the respective claims of the
defendants to the waters of the river and its tributaries are
prior and paramount to the claims of the United States and
the Indians, except as to 250 inches used in and around the
agency buildings, and at all times there has been sufficient
water flowing down the river to more than supply these 250
inches.

And it is again alleged that the waters of the river are in-
dispensable to defendants, are of the value of more than
$100,000 to them, and that if they are deprived of the waters
“their lands will be ruined, it will be necessary to abandon
their homes, and they will be greatly and irreparably damaged,
the extent and amount of which damage cannot now be esti-
mated, but will greatly exceed $100,000,” and that they will

WINTERS v. UNITED STATES.

207 U.S. Argument for Appellants.

be wholly without remedy if the claim of the United States
and the Indians be sustained.

Mr. Edward C. Day and Mr. James A. Walsh for appellants:

The decree is, in fact, separate and severable.

It is not charged that the defendants acted jointly. Neither
one is responsible for the acts of the other. In so far as the
record shows, the defaulting defendants are not the owners
of any lands and are not interested in this suit. Hancock v.
Patrick, 119 U. 8. 156; Forgay v. Conrad, 6 How. 201 ; Gil-
fillan v. McKee, 159 U.S. 303; City Bank vy. Hunter, 129 U. 8.
578; Milner v. Meek, 95 U. S. 252; Todd v. Daniel, 16 Pet.
521; Railroad Co. v. Johnson, 15 Wall. 8; Germain v. Mason,
12 Wall. 261. See also Hill v. Chicago and Evanston Ry. Co.,
140 U. S. 52; Basket v. Haskell, 107 U. 8. 602; Louisville &
N. A.C. v. Pope, 74 Fed. Rep. 5; Farmers’ Loan & Trust Co. v.
McClure, 49 U. §. App. 146; Mercantile Trust Co. v. Adams
Express Co., 16 U.S. App. 37.

In the agreement with the Indians and the act of Congress,
ratifying that agreement, there was no reservation of the waters
of Milk River or its tributaries for use on the Fort Belknap
Indian Reservation. Nor ean it be held that the Indians un-
derstood that there was any reservation of the watérs of Milk
River for use upon the Belknap Reservation, or that they ceded
and relinquished to the Government anything less than the
absolute title to the lands and all waters thereon to that por-
tion of the former reservation to which they relinquished their
claims.

The rule that the treaty must be construed most favorably
to the Indians does not apply to this case. Here the contro-
versy is between the United States, as guardian of the Indians,
and the appellants who are citizens and grantees of the Uni-
ted States, and the controversy has reference to the titles
granted by the United States to them. In such case, the ap-
pellants are the public in whose behalf the grants must be con-
strued most strongly. The property granted to them by their

572 OCTOBER TERM, 1907.
Argument for Appellee. 207 U.S.

entry upon and settlement of the public lands of the United
States, and the appropriation of the waters flowing in the
streams upon or adjacent thereto pursuant to the laws, de-
cisions of the courts, rules and customs of the country, is prop-
erty of which they cannot be deprived without due process of
law, and without just compensation.

There is nothing before the court for construction or inter-
pretation, but the plain, unambiguous language of the agree-
ment, and that is so clear that it does not require any construc-
tion or interpretation.

The appellants made valid appropriations of the waters of
Milk River and its tributaries under the laws, customs and
decisions of Montana, and the laws of Congress, and their rights
as grantees of the Government are superior to any rights which
the Indians may have by reason of the agreement entered into
between them and the Government.

The doctrine of riparian rights is not recognized, does not
prevail and never was in force in Montana, and the rights
of the parties to the use of the waters of Milk River and its
tributaries must be construed according to the laws of this
State.

Even if the doctrine of riparian rights did prevail, the ap-
pellants would be entitled to a reasonable use of the water for
the purpose of irrigating their lands, having in view the equi-
table rights of others.

The right to appropriate water is recognized by the laws
of the United States, the laws and decisions of the courts and
the customs prevailing in Montana, which are now and were in
force in Montana at the time the agreement was made with the
Indians, and these appellants have shown that they acquired
title to their lands under the grant from the Government and
made valid and prior appropriations of the waters to reclaim
such lands.

Mr. Assizetant Attorney General Sanford and Mr. Assistant
Attorney General Van Orsdel, with whom The Solicitor General

WINTERS v. UNITED STATES.

207 U.S. Argument for Appellee.

and Mr. A. C. Campbell, Special Attorney, were on the brief,
for appellee:

The decree below adjudging the complainants’ right to the
flow of the waters of Milk River as against all of the defendants
before the court, is a joint decree within the meaning of the
rule that all parties against whom a joint judgment or decree
is rendered must join in prosecuting a writ of error or appeal,
and that if prosecuted by less than the whole number of such
parties, without a summons and severance or other equivalent
proceeding, the appellate court acquires no jurisdiction of the
case and the writ of error or appeal will be dismissed. Owings v.
Kincannon, 7 Pet. 399; Masterson v. Herndon, 10 Wall. 416;
Hampton v. Rouse, 13 Wall. 187; Wilson’s Heirs v. Insurance
Co., 12 Pet. 140.

The defect of lack of jurisdiction for want of necessary par-
ties to the appeal was not waived by the final decree entered
by the Circuit Court of Appeals upon the merits without ob-
jection on that ground. Union & Planters Bank v. Memphis,
189 U. S. 71, 73.

Under the just and reasonable construction of this agree-
ment with the Indians, considered in the light of all the cir-
cumstances and of its express purpose, the Indians did not
thereby cede or relinquish to the United States the right to
appropriate the waters of Milk River necessary to their use
for agricultural and other purposes upon the reservation, but
retained this right, as an appurtenance to the land which they
retained, to the full extent in which it had been vested in them
under former treaties, and the right thus retained and vested
in them under the agreement of 1888, at a time when Montana
was still a Territory of the United States, could not be di-
vested under any subsequent legislation either of the Territory
or of the State.

While the United States may itself abrogate rights granted
to the Indians under a treaty with them, it alone has this
power, and unless such rights are abrogated by the United
States itself by subsequent legislation it is well settled that all

574 OCTOBER TERM, 1907.
Opinion of the Court. 207 U.S.

rights acquired by the Indians under the treaty are to be fully
protected against invasion by other parties. The Cherokee
Nation v. Georgia, 5 Pet. 1; United States v. Cook, 19 Wall. 591.

Mr. Justice McKenna, after making the foregoing state-
ment, delivered the opinion of the court.

A question of jurisdiction is presented by the United States.
Five of the defendants named in the bill failed to answer and
a decree pro conjesso was taken against them. The other de-
fendants, appellants here, after the affirmance by the Circuit
Court of Appeals of the interlocutory injunction, filed a joint
and several answer. On this answer and the bill the case was
heard and a decree entered against all of the defendants. From
that decree the appellants here appealed to the Circuit Court
of Appeals without joining therein the other five defendants.
The contention is that the Cirevit Court of Appeals had no
jurisdiction and that this court has none, because the five de-
faulting defendants had such interest in the case and decree
that they should have joined in the appeal, or proceedings
should have been taken against them in the nature of summons
and severance or its equivalent.

The rule which requires the parties to a judgment or decree
to join in an appeal or writ of error, or be detached from the
right by some proper proceeding, or by their renunciation, is
firmly established.' But the rule only applies to joint judg-
ments or decrees. In other words, when the interest of a de-

1 Williams v. Bank of United States, 11 Wheat. 414; Owings v. Kincannon,
7 Pet. 399; Heirs of Wilson v. Insurance Company, 12 Pet. 140; Mussina
v. Cavozos, 6 Wall. 355; Masterson v. Herndon, 10 Wall. 416; Hampton v.
Rouse, 13 Wall. 187; Simpson v. Greeley, 20 Wall. 152; Feibelman v. Packard,
108 U. 8. 14; Estis v. Trabue, 128 U. 8. 225, 230; Mason v. United States,
136 U. S. 581; Dolan v. Jennings, 139 U. S. 385; Hardee v. Wilson, 146
U. 8. 179; Inglehart v. Stansbury, 151 U. S. 68; Davis v. Mercantile Trust
Company, 152 U. 8. 590; Beardsley v. Railway, 158 U. S. 123, 127; Wilson
v. Kiesel, 164 U.S. 248.

2 Todd v. Daniel, 16 Pet. 521, 523; Germain v. Mason, 12 Wall. 259;

Forgay v. Conrad, 6 How. 201; Brewster v. Wakefield, 22 How. 118, 129;
Milner v, Meek, 95 U, S. 252; Basket v. Hassell, 107 U.S. 602, 608; Hanrick

WINTERS v. UNITED STATES. 575
207 U.S. Opinion of the Court,

fendant is separate from that of other defendants he may ap-
peal without them. Does the case at bar come within the rule?
The bill does not distinguish the acts of the defendants, but
it does not necessarily imply that there was between them,
in the diversion of the waters of Milk River, concert of action
or union of interest. The answer to the bill is joint and several,
and in effect avers separate rights, interests and action on the
part of the defendants. In other words, whatever rights were
asserted or admission of acts done by any one defendant had no
dependence upon or relation to the acts of any other defendant
in the appropriation or diversion of the water. If trespassers
at all, they were separate trespassers. Joinder in one suit did
not necessarily identify them. Besides, the defendants other
than appellants defaulted. A decree pro confesso was entered
against them, and thereafter, according to Equity Rule 19,
the cause was required to proceed ex parte and the matter of
the bill decreed by the court. Thomson v. Wooster, 114 U.S.
104. The decree was in due course made absolute, and granting
that it might have been appealed from by the defaulting de-
fendants, they would have been, as said in Thomson v. Wooster,
absolutely barred and precluded from questioning its correct-
ness, unless on the face of the bill it appeared manifest that it
was erroneous and improperly granted. Their rights, therefore,
were entirely different from those of the appellants; they were
naked trespassers, and conceded by their default the rights of
the United States and the Indians, and were in no position to
resist the prayer of the bill. But the appellants justified by
counter rights and submitted those rights for judgment. There
is nothing, therefore, in common between appellants and the
other defendants. The motion to dismiss is denied and we pro-
ceed to the merits.

The case, as we view it, turns on the agreement of May, 1888,
resulting in the creation of Fort Belknap Reservation. In the
construction of this agreement there are certain elements to

v. Patrick, 119 U. 8. 156; City Bank v, Hunter, 129 U. 8. 557; Gilfillan v.
McKee, 159 U. 8. 303,

576 OCTOBER TERM, 1907.

Opinion of the Court. 207 U.S.

be considered that are prominent and significant. The reser-
vation 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.
It was the policy of the Government, it was the desire of the
Indians, to change those habits and to become a pastoral and
civilized people. If they should become such the original tract
was too extensive, but a smaller tract would be inadequate
without a change of conditions. The lands were arid and, with-
out irrigation, were practically valueless. And yet, it is con-
tended, the means of irrigation were deliberately given up by
the Indians’ and deliberately accepted by the Government.
The lands ceded were, it is true, also arid; and some argument
may be urged, and is urged, that with their cession there was
the cession of the waters, without which they would be value-
less, and “civilized communities could not be established
thereon.”’ And this, it is further contended, the Indians knew,
and yet made no reservation of the waters. We realize that
there is a conflict of implications, but that which makes for
the retention of the waters is of greater force than that which
makes for their cession. The Indians had command of the lands
and the waters—command of all their beneficial use, whether
kept for hunting, “and grazing roving herds of stock,” or turned
to agriculture and the arts of civilization. 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? And, even
regarding the allegation of the answer as true, that there are
springs and streams on the reservation flowing about 2,900
inches of water, the inquiries are pertinent. If it were possible
to believe affirmative answers, we might also believe that the
Indians were awed by the power of the Government or deceived
by its negotiators. Neither view is possible. The Government
is asserting the rights of the Indians. But extremes necd not
be taken into account. By a rule of interpretation of agree-
ments and treaties with the Indians, ambiguities occurring will
be resolved from the standpoint of the Indians. And the rule

WINTERS v. UNITED STATES.
207 U. 8. Opinion of the Court.

should certainly be applied to determine between two inferences,
one of which would support the purpose of the agreement and
the other impair or defeat it. On account of their relations to
the Government, it cannot be supposed that the Indians were
alert to exclude by formal words every inference which might
militate against or defeat the declared purpose of themselves
and the Government, even if it could be supposed that they
had the intelligence to foresee the “double sense” which might
some time be urged against them.

Another contention of appellants is that if it be conceded
that there was a reservation of the waters of Milk River by
the agreement of 1888, yet the reservation was repealed by
the admission of Montana into the Union, February 22, 1889,
¢. 180, 25 Stat. 676, “upon an equal footing with the original
States.” The language of counsel is that “any reservation in
the agreement with the Indians, expressed or implied, whereby
the waters of Milk River were not to be subject of appropria-
tion by the citizens and inhabitants of said State, was repealed
by the act of admission.” But to establish the repeal counsel
rely substantially upon the same argument that they advance
against the intention of the agreement to reserve the waters.
The power of the Government to reserve the waters and ex-
empt them from appropriation under the state laws is not
denied, and could not be. The United States v. The Rio Grande
Ditch & Irrigation Co., 174 U. 8. 690, 702; United States vy.
Winans, 198 U. 8. 371. That the Government did reserve them
we have decided, and for a use which would be necessarily con-
tinued through years. This was done May 1, 1888, and it would
be extreme to believe that within a year Congress destroyed
the reservation and took from the Indians the consideration
of their grant, leaving them a barren waste—took from them
the means of continuing their old habits, yet did not leave them
the power to change to.new ones.

Appellants’ argument upon the incidental repeal of the agree-
ment by the admission of Montana into the Union and the power
over the waters of Milk River which the State thereby acquired

VOL. covi—37

578 OCTOBER TERM, 1907.

Opinion of the Court. 207 U.8.

to dispose of thern under its laws, is elaborate and able, but our
construction of the agreement and its effect make it unnecessary
to answer the argument in detail. For the same reason we have
not discussed the doctrine of riparian rights urged by the Gov-
ernment.

Decree affirmed.

Mr. Justice BREWER dissents.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0318%3A2. Public record. Not legal advice.