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test. It could use it to an unreasonable extent if it wanted to as one of the elements of ownership.

Mr. Ely. If the power is plenary, then it means full, and either Congress is going to direct the executive officers to what degree it shall or shall not be exercised, or they will use their own judgment

, and as administrations change and peoples' ideas change, you have no fixed standard.

Senator BARRETT. I don't think the injection of the word “reasonable” by Mr. Rankin changes the situation. I think that reasonable use is implied in every water right that is obtained under State law in all of the States of the West. That rule has been applied all the while.

Senator Kuchel. Actually, however, is it not true that the basis of California water law is the phrase "consumptive use," so to that extent our State has constitutionally otherwise made what it believes to be reasonable?

Mr. Ely. The constitutional foundation is reasonable use.

Mr. Chairman, I do not want to take too much of your time, but before I close, I would like to earnestly call to your attention another point made by Mr. Banks and I am glad that Senator Millikin is here, because what I am suggesting is that the philosophy of the O'Mahoney-Millikin amendment of 1944, which I previously suggested be made applicable here as general law in subjecting nonconsumptive uses, navigation and power, to beneficial consumptive uses

, • as a matter of general principle, whether claimed under Federal or

State law. I now suggest that another feature of the O'MahoneyMillikin amendment might be considered under suitable language, namely, a mandate to be laid upon the Federal officers that in the planning of projects, they consult the officials of the State not only with respect to the water rights, but the general scope of the planning

. There is too much of a tendency of scatteration of the Bureau of Reclamation, the Corps of Engineers, the Fish and Wildlife people

, the Soil Conservation people, all with good intentions, going their own ways and coming up with programs that ultimately are in conflict with water rights claimed under State law that they didn't take the trouble to find out about. All of that data in most of the States is centralized or correlated through some State agency, and I suggest that you might properly write into your bill a direction that in the formulation of plans for any intrastate project you submit thos plans to the State for comment and for coordination before submission to Congress.

In parallel with the provisions that relate to interstate projects your O'Mahoney-Millikin amendments that direct that all the proposals be submitted to the affected States with the right of comment to the States. If that type of coordination is carried out from the beginning in recognition of State officials, instead of so much effort to include them out, there won't be the type of conflict that has brought about the necessity for your bill.

One or two final comments, Mr. Chairman, if I may. The States are caught in this sort of dilemma. If the waters are nonnavigable and originate or flow across public lands, they almost inevitably either rise within Federal reservations or flow across one. In such event, you have this floating intangible claim of the Federal Govern ment against them, or they are navigable waters in which event the

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title of the State is recognized by the statutes but subject to the navigation servitude, and then the quesion is how far can the United States in the utilization of the navigational servitude interfere with rights acquired under State law?

I take it your bill is designed to cut across those in the exercise of your plenary power in both those fields, property and commerce.

I note today a curious lack of reference in what has been said by the Government departments to the State enabling acts. Each of these Western States, or most of them, have had something to say about water rights in their own constitutions which were submitted to Congress for approval when the States came into the Union, was approved or the States would not have been admitted. In the case of California, Oregon Power Company v. Beaver Portland Cement Company, to which Mr. Rankin referred, the court said that the statute of 1877 confirmed in the States a plenary power of the control of the use of waters. If the statute could have that effect, what effect are you going to give to the constitutions of these newly formed States approved by Congress? There is a body of law to the effect that an enabling act constitutes a compact between the new State and the Congress. If the provisions of the State constitution mean anything, they mean that the State has proposed and Congress has acceded to the plenary power that Congress recognizes by the 1877 statute, that the State could have, whether or not it had such a constitutional provision. I think when you discuss what can be done now by the United States in the control of these waters, some recognition must be given to the powers vested in the States when they came into the Union.

Senator WATKINS. That's right, and I think the attorney general from Wyoming called attention to the fact that with respect to the Utah constitution it was held to be just what you described.

Senator BARRETT. Colorado has a similar provision in its constitution, is that not right?

Senator MILLIKIN. That is right.

Senator WATKINS. That was only a circuit court decision; but it was never appealed to a higher court.

Mr. Ely. Mr. Chairman, in view of the questions about constitutionality of your proposed bill, doubts which I do not share, I would suggest your considering the advisability of adding a separability clause. I think each of the objectives you are setting up here is an objective that you would probably wish to accomplish whenever one or more of the others should fail.

Senator WATKINS. I think it is a good suggestion.

Mr. Ely. Mr. Chairman, on behalf of Mr. Banks, Mr. Towner, and myself, we express our appreciation for the opportunity to appear here and hope our suggestions may prove to be of some usefulness to you.

Senator WATKINS. I want to say the testimony from your whole delegation has been very helpful, I believe. It has helped point up the difficulties and made explanations for what has taken place in the past, and has outlined some very useful suggestions as to how we might amend this bill to strengthen it. I appreciate it very much.

Mr. Ely. Thank you, sir.

Senator BARRETT. I want to join, Mr. Chairman, in complimenting Mr. Ely and Mr. Banks for their splendid statements before this committee.

Mr. BANKs. It has been a privilege to appear.
Senator WATKINS. Thank you.

Senator BARRETT. Mr. Chairman, may I have unanimous consent to insert in the record at this point a letter addressed to Senator Anderson, chairman of this subcommittee from the Chamber of Commerce of the United States under date of March 19, endorsing this bill?

Senator WATKINS. It may be inserted in the record. (The letter is as follows:)


Washington, D. C., March 19, 1956. Hon. CLINTON P. ANDERSON, Chairman, Subcommittee on Irrigation and Reclamation, Committee on Interior and Insular Affairs,

Senate Office Building, Washington, D. C. DEAR SENATOR ANDERSON : The Chamber of Commerce of the United States strongly supports the principles of S. 863, which would affirm the jurisdiction of the States over their own water resources.

For nearly a century it has been the established concept that western water rights are dependent on, and are determined by, State law. It has been generally conceded that the Desert Land Act of 1877 rendered western waters subject to appropriation under State law. Many Federal laws, including the Federal Water Power Act of 1920, have expressed this intent.

Recently, however, some doubt has been cast on the validity of the principles of State water law, particularly in Oregon, as the result of a Supreme Court decision in the Pelton Dam case. The uncertainty caused by this decision points up the need for Congress to fully affirm, restate, and reinforce Federal recognition of State water laws.

The national chamber has long recognized the unusual situation of limited water resources in our arid and semiarid regions, and has been in accord with the great body of law which has developed in these States to not only encourage but also protect the development of these limited resources and the economy of this region.

The States themselves, and not the Federal Government, have a proprietary interest in and right to the ultilization and control of their own water resources. Such interest and right should not be withdrawn by any court of law or by any act of Congress. On the contrary, these interests and rights should be strengthened so as to preserve and protect to the fullest lawful extent both the established and the potential uses of western water resources.

While each State should have final authority to determine use and control of its water resources, the Federal Government should exercise its authority only to the extent of existing law. In applying the Federal Power Act, for example

, the Federal Power Commission should give due consideration to the actions of State commissions regarding interstate waters, but should not interfere in purely intrastate streams, particularly if these are nonnavigable.

It is important, therefore, that each State have adequate administrative machinery to carry out its own water laws, with final authority vested in a single State agency. Such agency should make its decisions on water-resources development on the basis of the findings of other State agencies charged with examining such uses of water as fish, wildlife, recreation, and quality control. It is important, also, that Federal authority recognize but not attempt to overrule such final State authority. In its exercise of national interests in navigation, reclamation, flood control

, or other water use, the Federal Government should not use the commerce clause of the Constitution or other authority as an excuse to encroach upon water uses as established by the State. S. 863 would provide that their rights to use and control water resources would not be abridged, modified, or superseded by Federal courts, laws or agencies.

I would appreciate it if you would make this letter a part of the record of the hearings on this legislation. Cordially yours,


Senator WATKINS. Mr. Ely, when you go over your testimony, would you be willing to put down the citations of the cases you referred to? It will save us a lot of time.

Mr. ELY. Yes, sir.

Senator BARRETT. Also, Mr. Chairman, I have a letter addressed to Senator Murray, chairman of the committee, from the firm of Wilkinson, Cragun, Barker & Hawkins, calling attention to protecting the Indians of the country with reference to this bill, and I ask unanmous consent to insert it in the record at this point.

Senator WATKINS. Without objection, it will be so inserted. (The letter is as follows:)


Washington, D. C., March 21, 1956. Re S. $63, S1th Congress. Hon. JAMES E. MURRAY, United States Senate,

Washington, D. C. DEAR SENATOR MURRAY: We are writing on behalf of our clients, the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Mont., and their problems respecting their irrigation rights in the event S. 863, 84th Congress, as proposed with amendments heretofore circulated by Senator Barrett, were adopted in its present terms. While we have no reason to believe that the bill was to any extent intended to restrict the rights of Indians or Indian tribes or persons claiming under them, we do feel that an amendment ought to be undertaken which would make the matter plain.

We have covered the matter rather fully in a letter to Senator Barrett; and we take the liberty of sending a copy to you with this letter.

On behalf of the Confederated Salish and Kootenai Tribes of the Flathead Reservation we respectfully request your support for language which will fully protect the rights of the Indians and of non-Indians claiming under them. Very respectfully yours,



Washington, D. C., March 20, 1956. Re S. 863, 84th Congress. Hon. FRANK A. BARRETT, United States Senate,

Washington, D.C. MY DEAR SENATOR BARRETT: There have come to our attention the above bill and its companion bills in the House of Representatives, all respecting State control of irrigation waters in the arid States. We represent four Indian tribes who have some concern with the bill; namely, the Northern Arapahoe (who, with the Eastern Shoshone, are located on the Wind River Reservation in Wyoming); the Confederated Tribes of the Flathead Reservation in Montana ; the Spokane Tribe of Washington, and the Klamath Tribe of Oregon. The bill poses questions concerning the tribal lands, the lands allotted to members, and the rights of non-Indians who have purchased tribal lands or allotted lands which passed into fee-simple ownership. The bill leaves those problems unanswered save as the course of litigation over its provisions may serve to make the intent of the act clear. We suggest that it would be advisable to clarify the act in these respects, which we will detail.

Certain rights to waters for irrigation purposes exist in Indian tribes and their members as a result of their prior, aboriginal ownership of the lands included in their reservations. Those rights have never been ceded to the United States in the first place; and the treaties establishing reservations for the Indians were “not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted.United States v. Winans (198 U. S. 371, 381). Specifically it is held with respect to waters flowing through or bordering the reservation that the Indians reserved enough water to take care of their lands when their advance in civilization was such that they could make

use of it; and to the contention that they had ceded the waters, the Supreme Court answered nearly half a century ago:

“The Indians had comamnd o fthe lands and the waters-command of all

“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? * * *

6* * * The power of the Government to reserve the waters and exempt 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. S. 690, 702; United States v. Winans, 198 U. S. 371). That the Government did reserve them we have decided, and for a use which would be necessarily continued through the years. This was done May 1, 1888, and it would be extreme to believe that within a year Congress destroyed the reservation [by the act admitting Montana into the Union] 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" (Winters v. United States (1908), 207 U. S. 564, 576, 577–8).

This doctrine was reaffirmed in 1939 (United States v. Powers, 305 U. S. 527, 532–3), where it was held to apply to a purchaser through mesne conveyances of allotted Indian land which had been patented in fee, and who had long used water from reservation sources on the land involved. It has also been held that the purchaser of an allotment has the right to irrigate such increased acreage as he might with reasonable diligence place under irrigation (United States v. Hibner (D. C., id., 1928), 27 F. 2d 909).

This rule of the Winters case, and its corollaries, is a rule of property; it measures the rights not only of Indian tribes and Indian allottees, but of their purchasers. There seems never to have been any considerable difficulty with it; the Indian priority is well known and has been established law for a long time; conveyances of Indian lands regularly have been made in reliance on it, and acquisitions of water rights made subject to it. As a result, Congress may not take or destroy that right without assuming liability to make just compensation for its taking, whether from Indians or their alienees. (See 28 U.S.C., sec. 1505.) Of course, we have no particular reason to believe that it is the purpose of this bill to take or destroy those rights. It appears to be the purpose to deal with only such rights as pertain to the public domain. If that be the correct understanding, we suggest the advisability of providing explicitly that nothing in the act shall be construed to impair any existing rights of Indians, Indian tribes, and persons claiming under them, which they shall continue to enjoy to the same extent as if this act had not been passed.

Adoption of such a provision will avoid other difficulties of interpretation of the present language: At one time the Indian office undertook State filings on water rights used by Indian projects and individual Indian allottees. Ultimately, following the decision of the Winters case, the Indian Office ceased this practice, and (save in scattered or individual cases, as where an individual Indian out of abundant caution undertook to get a State certificate) there has been no general compliance with the State practice for a generation or more. We are informed that the Indian Office instructed its irrigation people not comply with the State system for fear of giving the impression that there had been an abandonment of additional rights recognized by the Winters case. If it were held that only the State law applied to Indian properties pursuant to this legislation, then a non-Indian with actually a later appropriation of water might prevail in an adjudication over the earlier Indian appropriator (or bis alienee ) simply because, pursuant to the then-current law and the in. structions of the Indian office, the Indian had not complied with the State law at the time of is appropriation of water yet his appropriation was not so old as to be entitled to grandfather rights under the water laws of the particular State. It follows that this legislation might be interpreted as actually bring. ing about a reversal of the usual rule of prior appropriation for a beneficial use. Such difficulties could be overcome by the amendment we have suggested.

The amendment we are suggesting might conveniently be made to section 4 of your bill (S. 863, amendments, 84th Cong., 2d sess.), by adding thereto the following:

"Nothing in this act shall be construed to impair any existing rights to water of Indians, Indian tribes, and persons claiming under or through them, which

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