tion came up last year on this one section of an Indian reservation, as to whether they would come under the State ruling or whether they could drill. The Interior Department ruled that they could dig their wells on this Indian land. What they are afraid of today is that if this bill is passed, the Indian tribes will all come under the State law. I said we didn't have a State law. We do have, but it is not in any workable form yet. It is really a prohibition instead of a law.

Senator BARRETT. I think as far as our State is concerned the Indians are there because of a treaty with the United States, isn't that right?

Senator O'MAHONEY. The Shoshone treaty of course and then of course the Arapahos came in on top of that.

Senator BARRETT. I certainly have no objection to protecting those rights. We certainly intended to do that. I see no reason why we should not strike out the words "under State law" and that would make it all-inclusive and protect the rights under the Federal Government, too, as well as those of the State.

Senator O'MAHONEY. Of course there is the broad question of what a reservation is.

Senator GOLDWATER. We weren't referring to reservation particularly as used in this law. We are referring to the rights of the Indians, whether they be on reservations or parts of reservations or even on lands not recognized as reservations.

Senator O'MAHONEY. I say an underlying question is what a reservation is, because we are talking about two kinds of reservations, those which are set up by treaty on which the full faith and credit of the United States is pledged to the Indian, and Executive order reservations, and I know of no case which has ever attempted to determine how rights are created by an Executive order which is not a law of

the land.

Senator GOLDWATER. We had a case last year on mineral rights before this committee. But we resolved it. That is the only case I ever heard of. They were specifically left out of the Executive order which created the reservation.

Senator O'MAHONEY. The Constitution says that this constitution, the laws made thereunder and the treaties are the supreme law of the land. Nowhere does it include Executive orders.

Senator BARRETT. That follows with a certainty because you couldn't give a reservation the same color of authority that a solemn treaty has.

Senator O'MAHONEY. I quite agree with that. I thought you were disagreeing with my statement.

Mr. BENNETT. As I construe the bill, it does not now apply to percolating waters.

Senator O'MAHONEY. May I interrupt you, please?

(Off the record.)

Senator O'MAHONEY. On the record let me say that I regret that I am called to a meeting of the Subcommittee on Bankruptcy of the Judiciary Committee, which is considering a pending bill. Evidence is being taken now, and my presence is required. Otherwise, I would rather sit here and listen to your testimony, Mr. Bennett, which is always so clear.

Mr. BENNETT. I thought St. Patrick's Day was behind us. (Senator Barrett took the chair.)

Senator BARRETT. Do you have a question, Senator Dworshak? Senator DwORSHAK. Yes.

Mr. Bennett, I received a telegram which I should like to read with reference to this legislation and have your comment on it. I received it from Wilfred Broncho, chairman of the Fort Hall business council, as follows:

Senate bill S. 863, introduced by Senator Barrett, of Wyoming, known as the Water Rights Settlement Act of 1956, could in its present form stop Indians from developing additional water guaranteed them under the provisions of the Winters decision and might impair the right to irrigation water which they are now using because they do not have the State rights. It is imperative that we protect what water rights we still have until we reach that ultimate development envisaged by the Winters decision. In considering the larger aspects of this bill we hope that the Senate will not forget the smaller but equally as important Indian water rights impliedly guaranteed them by their treaties and the courts. To this end we urge that you seek an amendment to the bill at the hearings now being held to the effect that existing Indian rights to irrigation water will be reserved by the bill or that it be passed without prejudice to existing rights to Indians. We are awaiting authority from the Commissioner of Indian Affairs to send two delegates from Fort Hall to be in Washington the week of March 26. It is hoped they will have an opportunity to confer with you on this and other matters.

Do you have any comments to make on that particular approach to this legislation?

Mr. BENNETT. Senator Goldwater just asked the same question, Senator. I told him that the Department's report recommends deletion of the three words "under State law" as they now appear in section 6 of the proposed substitute bill. In that way it is our judgment that all existing rights, whether Indian or otherwise, which rest upon Federal law would be preserved.

Senator DwORSHAK. Thank you.

Mr. BENNETT. Senator Barrett also indicated on the record that such an amendment would be agreeable to him.

At this stage I would like to go into the Pelton Dam case itself and the underlying reasons for the concern which has been expressed by previous witnesses before this hearing.

In the Pelton Dam case the applicant for a license under the Federal Power Act proposed to construct a dam which would on one side of the river abut an Indian reservation dating from 1855, and, on the other side of the river, would abut a power site reserve.

The applicant applied for water rights under State law. He was unable to satisfy the requirements of the State fish and game commission whose approval is required, as I understand it, under Oregon State law, and therefore he was unable to get an appropriative water right under Oregon law.

Nevertheless, the Federal Power Commission, following generally the decision in First Iowa Electric Cooperative v. Federal Power Commission (328 U. S. 152), granted him a license for the construction of his project. That action in and of itself, if it rested on the Fire Iowa Electric Cooperative decision alone, might have entirely different connotations than it does as a result of the fact that the Federal Power Commission and the Supreme Court both proceeded to deal with the question of the applicability of the Desert Land Act.

The Deschutes River was presumed by the Court on stipulation of the parties to be a nonnavigable stream. The contention of the State of Oregon on appeal to the Supreme Court was that the applicant for

the license had not complied with State law relating to appropriation, control, distribution, and use of water, and, therefore, under the Desert Land Act, he would have no water rights whatsoever and no right to impound that water in the absence of State license or State permit.

The Supreme Court proceeded to meet the question of applicability of the Desert Land Act very squarely. It held that the Desert Land Act does not apply to any lands which have been withdrawn or reserved from entry under the public land laws from the date of the withdrawal of the reservation of the land.

The Court, of course, for the purpose of this decision did not have to resolve such questions as whether the rights which the Federal Government in effect recalled by creation of the power site reserve were riparian rights in the traditional common-law sense or whether they were plenary rights to use whatever amount of water the Federal Government might at any time in the future decide it wanted to put to beneficial use on the reservation.

That question was not necessary in this decision. I can only conjecture as to what the result might be.

Nevertheless, in a number of publications in the West some attention was paid to certain pleadings which were filed by the United States in other litigation after the Pelton decision. I will use a hypothetical example to indicate why the concern was expressed. You had an instance of an appropriative right which was well upstream in a given watershed. The priority date under State law, we will say, was 1945. Farther down the river there were a number of oil shale reserves, power site reserves, other types of withdrawals or reservations which dated back as far as 1905. On the strength of the Pelton decision the United States filed a statement of additional claim in at least one pending case which demanded a priority to an indeterminate amount of water as of the dates of the withdrawals and the reservations. Some of those reservations, as I mentioned before, date back to 1905.

In the meantime, of course, dozens of other water rights have been initiated and vested according to State law. The question is, how valid and of what value are those intervening rights in view of that holding?

That is the question which of course has caused a considerable degree of concern in the West.

I am not proceeding to give an answer to that. I am not proceeding to say that the Supreme Court necessarily would take an extreme position if such issues were presented to it, but I am saying that is the occasion for the concern.

Senator BARRETT. Let me ask you this question if you don't mind, at this point. As I undersand the Colorado case, the city of Denver claimed some rights for its own purposes which were subsequent to the contentions made by the Government arising out of these shale reservations made, as you said, I think, about 50 years ago. Isn't it true, No. 1, that there wasn't any application of water insofar as the shale reservations are concerned, no beneficial use was made of any water on the reserved lands; and, No. 2, doesn't the contention of the Government at least cast a dark cloud of suspicion on the vested rights of the city of Denver, when they say that they are rather tenuous and that they are subject to attack, because of the prior reservation made?

Mr. BENNETT. That is the fear which has been expressed by a number of attorneys and water officials in the West, Senator. I should point out that the Pelton Dam case itself did not involve a factual situation where rights vested under State law were being abrogated. Consequently, there have been a good many who said that if the Supreme Court had before it the specific set of facts which was involved in the case I mentioned, it would not abrogate those rights without just compensation. That of course is a matter of speculation. You cannot determine that with any certainty as the law now stands, in my judgment.

Senator BARRETT. I quite agree with you that the Pelton decision standing by itself, makes it quite clear that perhaps the court would take the position that vested rights were protected at all events.

Nevertheless, the great danger, as I see it, from the decision comes from another direction, and that is that 90 percent of all the water of the West originates on public lands, so there is very little comfort to say that not all the lands are presently reserved, especially when we know that could be done.

The executive branch of the Government has the present authority under the 1909 and 1910 acts to create a reservation in a matter of hours. So they then have the power in the palm of their hands to place all of the public lands of the West within the four corners of the Pelton Dam case, and that being the fact, certainly there is adequate ground to be alarmed at the trend as far as these Supreme Court decisions are concerned.

There is one other question I would like to ask you.

Counsel for the Justice Department, testifying on the House side, made some contentions with reference to the fact that this would constitute an invasion of the rights of the Federal Government under the constitution, and so on, and so forth, and questioned this matter on constitutional grounds.

I realize your unwillingness to express any opinion on the matter, but I would just like to have you tell me, and I do not care to have you express any opinion, but I would like to have you tell me what this language means.

In the first Iowa decision that you mentioned just a while ago, Three Hundred and Twenty-eighth United States Reports, page 152, I find this language and I quote:

In the Federal Power Act there is a separation of those subjects which remain under the jurisdiction of the States from those subjects which the Constitution delegates to the United States and over which Congress vests the Federal Power Commission with authority to act. To the extent of this separation, the act establishes a dual system of control. The duality of control consists merely of the division of the common enterprise between two cooperating agencies of Government, each with final authority in its own jurisdiction. The duality does not require two agencies to share in the final decision of the same issue.

Where the Federal Government supersedes the State government, there is no suggestion that the two agencies both shall have final authority.

As I understand and interpret the decision of the Supreme Court in all of these cases involving both the commerce clause and the property clause of the Constitution, they hold that the Congress has plenary power and they can do practically as they like and, having acted as they did in the Desert Land Act, primarily, that certainly the Congress was acting within the scope of its authority under the Constitution.

Can you tell me what that language means other than what I am saying?

Mr. BENNETT. I would not want to draw any legal conclusion from it. I would say this:

It is very consistent with the trend of Supreme Court decisions over the past 50 years or longer, as pointed out by Professor Corwin in his recent compilation of constitutional law which has been published as a congressional public document.

He pointed out that in the beginning of our constitutional history, the Supreme Court tended to take the entire field of constitutional action and say that where powers were delegated to the Federal Government, you had a very tight compartmentation, which meant that those things which were delegated to the Federal Government could never be exercised by the State government even with the consent, let us say, of the Congress.

As he points out, more recently a different trend became noticeable, in which the Supreme Court began to see the picture of governmental action as a whole and to view our Federal system of governmentthat is, the National Government on the one hand and the State governments on the other-as sharing powers on a cooperative basis and that Congress, in many of its actions, was merely attempting to make the broad scope of the Constitution effective by interlocking its exercise of authority with a concurrent exercise of authority by the States. (The Constitution of the United States of America, E. S. Corwin, ed., S. Doc. 170, 83d Cong., 2d sess., p. XII.)

Now, I think that it is just that type of thinking which is reflected by the language you quoted from the first Iowa case; that the court was reading into the Federal Power Act a desire on the part of Congress to work out a system which would be effective in the end but would still give proper recognition to the proper functions of the State governments on the one hand and the National Government on the other.

Senator BARRETT. I certainly agree with your explanation of the

matter.

I do not think there would be any confusion at all in the Western States over this issue, were it not for the fact that the court itself has created suspicion and doubt by reason of this decision out in Oregon.

I do not profess to be a student of constitutional law, let alone any expert in that field, but there is one thing that bothers me and I indicated a moment ago this proposition.

No. 1, you stated a while ago that the intention of the Congress in the Desert Land Act of 1877, was to invest in the general public the right to acquire certain water rights by complying with State law. That in itself is a grant.

Now, the point I have in mind is, supposing that we here in Congress enact some legislation and give John Doe a specific section of land and the President signs the bill. That in itself constitutes a conveyance of title to him, does it not?

Mr. BENNETT. That is correct.

Senator BARRETT. No question about that.

Now, I cannot distinguish between doing that and enacting a law similar to the Desert Land Act, when we say to all the people, "We are separating the land from the water and you can acquire, under State law, certain rights to the use of that water."