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Senator O’MAHONEY. I am talking about the principle. You speak of severance.
Mr. BENNETT. That was the language of the Supreme Court in the California Oregon Power Co. case.
Senator O’MAHONEY. Restate it, will you?
Mr. BENNETT. The Supreme Court in the California Oregon Power Co. case stated that the effect of the Desert Land Act was to sever rights to the use of water from the Federal ownership of the public lands, and that therefore when a patent was issued to the public lands, rights to the use of water would have to be acquired otherwise than through the ownership of the land, namely, in accordance with State law. The Supreme Court so held in the California Oregon Power Co. case.
Senator O’MAHONEY. What was the date of the Desert Land Act? Mr. BENNETT. 1877.
Senator BARRETT. I think I have that citation here. I believe they went a little further than that, didn't they! They said certainly after the enactment of the act, if not before, the States had control.
Mr. BENNETT. The language you have in mind, Senator, is this, and it is very persuasive language. Quoting from 295 U. S. at 162 and 163:
As the owner of the public domain, the Government possessed the power to dispose of land and water thereon together or to dispose of them separately. The fair construction of the provision now under review is that Congress intended to establish the rule that for the future the land should be patented separately, and all nonnavigable waters thereon should be reserved for the use of the public under the laws of the States and Territories named. The words that the "water of all sources of water supply upon the public lands and not navigable shall remain and be held free for the appropriation and the use of the public,” are not susceptible of any other construction. The only exception made is that in favor of existing rights, and the only rule spoken of is that of appropriation.
Then later on in the opinion the Court says: What we hold is that following the act of 1877, if not before, all nonnavigable waters then a part of the public domain became public sui juris, subject to the plenary control of designated States."
Senator OʻMAHONEY. What significance do you give to the word “public,” public domain and reserved for the public?
Mr. BENNETT. The Supreme Court, of course, in the Pelton case (349 U. S. 435) was dealing with that very question. When they said "reserved for the use of the public” the Court in the California Oregon Power Company case (295 U. S. 142) certainly held that that water was available for appropriation by anyone who complies with State laws relating to the appropriation of water.
Senator Ö’MAHONEY. States that were admitted to the Union before the passage of the Desert Land Act, States in this arid West, had acquired rights by their admission which were never undone by the opinion in the Oregon case. Wouldn't you agree to that?
Senator BARRETT. He can't agree to that, but I will. He is under some compulsion not to agree to too much here but I will agree with you.
Senator O’MAHONEY. No. He is just analyzing these cases as an expert.
Mr. BENNETT. Actually, Senator, it is possible to read that as a possibility from the use of the language "if not before” by the Supreme Court.
Senator O'MAHONEY. If not before, yes. The use of those words inspires me to make this remark: When all of these laws which Senator Barrett cited in his testimony yesterday and before were enacted, the concept of Congress and the concept of the executive branch of the Government was that the public domain was for the use of the public for settlement under the homestead laws. It was for transfer from the Government to individuals who would constitute future States. The concept was a relationship between the Government as the administrator for the benefit of the public who would settle these States, take up the land and take up the water.
Mr. BENNETT. That is correct.
Senator O’MAHONEY. Now we are coming to a period when there seems to be developing the idea, expressed in these various opinions from the executive departments, from the Department of Justice if not the Department of the Interior, from the Department of Defense, that the Government per se has a right which supersedes the right of the public, although there never has been any law passed by Congress which conveyed or vested any such power in the Federal Government or any of its departments.
Mr. BENNETT. I might say, Senator, that the contrary interpretations which you have mentioned rest largely on the claim of a preceding better right. I think the assumption starts, particularly in the light of the Pelton case, that the land and all the rights to the use of water were in the Federal Government by virtue of its ownership of the public lands, even after the admission of the States. The contrary interpretations start with that assumption.
Senator O’MAHONEY. It is an incorrect assumption. Mr. BENNETT. I am not expressing any opinion on that at this stage. I know what the constitution of our State says.
Senator O'MAHONEY. I don't ask you to express an opinion. I am just stating what I believe to be a fact which cannot be denied. The whole concept of Government in these days was the concept of Government acting as the servant of the people and for the benefit of the people in their individual capacity, and now we have Government acting in the nature of a collectivist government. That is what is written into the Department of Justice opinion. We don't want collectivist government in the United States. Mr. BENNETT. I certainly agree with your conclusion, Senator.
Senator BARRETT. Mr. Chairman, I would like to ask my colleague and also Mr. Bennett this question which bothers me somewhat. Congress acted in 1877 in no uncertain terms, and at that time everything in the West was public domain. The United States owned practically all of the lands. The only land which had been taken up at that time was probably a few mining claims and some squatters' rights which were established along the streams of the West. That being the case and no reservation having been made at that time or for a long time thereafter, doesn't it follow that the rule laid down by the Congress by those acts attached to all that property and it would be impossible to take that right away, except that the Congress affirmatively comes in and says in no uncertain terms, "We are repealing the provisions of the Desert Land Act and the act of 1866 and the act of 1870."
Mr. BENNETT. I believe that both the Central California Oregon Power Co. case (249 U. S. 435) and the Pelton decision (295 U. S. 142) certainly imply that the Congress could recall the reservation of the waters for appropriation under State law if the Congress saw fit to do so. However, in the Pelton case the issue was not whether Congress had ever done so. The issue was whether the Congress had authorized the executive departments of the Government through executive action to withdraw lands from entry under the public land laws and whether Congress thereby also gave the executive branch of the Government the authority to take back unto those lands which were withdrawn from entry the rights to the use of water which the Desert Land Act originally had severed from that land. In other words, so long as those lands were available for public entry, even the Pelton case proceeds on the assumption that those waters would have been subject to appropriation under State law, but that from the date of the reservation or the withdrawal those rights were no longer available for appropriation under State law.
(Senator O'Mahoney took the chair.)
Senator BARRETT. I realize that is the situation as far as the Pelton Dam case is concerned. There isn't any doubt that you have stated the matter very succinctly and very properly. The thing that bothers me is this: At the time of the grant by the Congress to the States of authority over these lands, there were no reservations. The Congress said to the 11 Western States at that time, "We are separating the water from the land. We are going to deal with them separately. We are going to permit homesteading on the land. We are going to let you administer the water," and that blanketed the whole West.
If that was a grant at that time over all these lands, it would seem to me to follow that the executive arm of the Government couldn't come in at a later date and undo the very thing that Congress had done.
Mr. BENNETT. That was really the issue which the Supreme Court had before it in the Pelton Dam case. I might point out, Senator, just to keep complete perspective
Senator BARRETT. I tell you what we are doing here now. We are acting as a court of last resort as far as these decisions of the Supreme Court are concerned. We are in effect overruling the Supreme Court over here, and to my way of thinking the Court is legislating. So we have to get back on the beam, and we will attend to our business and pass the laws and it would be better if the Court would stick to its job and construe those laws. That is about the whole thing in a nutshell.
(Discussion off the record.)
Senator GOLDWATER. Have you finished your line of questions, Senator Barrett?
I had a question which came up this morning in reading this bill, and I think you have given it some study, Mr. Bennett. What will be the effect of this bill on the water rights of the Indian tribes of Arizona both as to appropriable water and underground percolating water?
Mr. BENNETT. Inasmuch as the secretary, within the last hour, has signed a report to be submitted to this committee, I think I should say right at this point that we recommend strongly to the committee
that the words “under State law" be stricken from the saving clause which appears in section 6 of this bill. That language now starts:
Subject to existing rights under State law, all navigable and nonnavigable waters are hereby reserved for appropriation, and so forth.
It appears to us that there are several possible classes of third parties who might be seriously insured in the event the language "under State law” is used. Furthermore, there is the possibility of potential damage suits, Tucker Act claims, and whatnot, predicated on vested rights acquired under Federal law.
We also consider that the rights of the Indians to the use of water on reservations in Arizona and elsewhere are fundamentally based on Federal law, and we feel that any bill of this type distinctly should not make waters to which they have rights subject to appropriation by other third parties. Hence, we would protect all existing rights, whether those rights arise under Federal law or State law.
Under those circumstances, we would suggest that the saving clause there should read just as it does in the Desert Land Act. In the Desert Land Act it reads: "subject to existing rights,” and proceeds from there, and we feel that should be done here. I should say, the saving clause does appear in the Desert Land Act and in the earlier acts where Congress was endeavoring to confirm rights which had been acquired under local law and regulation and custom.
Senator GOLDWATER. Are you acquainted with the ruling that the Assistant Secretary Lewis signed last year regarding the Sacaton Indians of the Gila River which recognized their rights to drill for underground water regardless of the State law?
Mr. BENNETT. I am familiar with it in a very general way, Senator.
Senator GOLDWATER. Then this bill as you have suggested its amendment would not affect that decision?
Mr. BENNETT. Not in our view.
Senator GOLDWATER. How about the rights recognized for the Colorado River tribes and the other tribes which were recognized under the compact ? Would that affect that?
Mr. BENNETT. We can see no reason why any existing right should be affected, and we think that any existing right of a third party should be protected according to the law which gives him that right, whether it is a Federal law or whether it is a State law. Consequently, from our standpoint, the saving clause in section 6 would be adequate if the words "under State law” were eliminated.
Senator GOLDWATER. One other question: How would this bill affect percolating water?
Senator BARRETT. Before you go to that other, I did want to pursue that other point just for a second.
Senator GOLDWATER. All right.
Senator BARRETT. Take section 9 of the act. Isn't it true that all of the Indian tribes of the country are protected under treaties with the United States ?
Senator GOLDWATER. No.
Mr. BENNETT. No. Actually some of the more difficult questions have arisen from outright Executive order reservation.
Senator GOLDWATER. What I was getting at, we have not come to a workable agreement yet on underground water regulation. The ques
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 OʻMAHONEY. 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 OʻMAHONEY. 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 OʻMAHONEY. 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.)