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WATER RIGHTS SETTLEMENT ACT

THURSDAY, MARCH 29, 1956

UNITED STATES SENATE, SUBCOMMITTEE ON IRRIGATION AND RECLAMATION OF THE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,

Washington, D.C. The Subcommittee on Irrigation and Reclamation of the Senate Interior Committee was called to order on Thursday, March 29, at 10 a. m., Senator Arthur V. Watkins, presiding.

Present also: Senator Barrett.

Senator WATKINS. I submit for the record letters from John W Cragun and Arthur Lazarus, Jr., relative to Indian water rights. (The letters referred to follow :)

WASHINGTON, D. C., March 23, 1956. Re S. 863, 84th Congress. Hon. JAMES E. MURRAY, United States Senate,

Washington, D. C. DEAR SENATOR MURRAY: With reference to our letter to you of March 21, on the above bill, we have had some further correspondence with Senator Barrett. There is enclosed for your information a copy of a letter which was sent to Senator Barrett today. Very sincerely yours,

WILKINSON, CRAGUN, BARKER & HAWKINS. By JOHN W. CRAGUN.

WASHINGTON 6, D. C., March 23, 1956. Re S. 863, 84th Congress. Hon. FRANK A. BARRETT, United States Senate,

Washington, D. C. DEAR SENATOR BARRETT: Thank you for your letter of March 21, 1956, promptly responding to our letter of March 20 on the above matter. We are gratified with your desire to protect the water rights of the Indians, and felt virtually certain that the bill and its House counterparts were not designed to be hostile to those rights. So long as Indian rights are protected, we see reason to believe that Indians, in common with other citizens, have reason to support the proposed legislation.

After writing you we did learn of the proposal of the Department of the Interior, which would strike the words "under State law” from the commencement of section 6 which provides that “Subject to existing rights under State law, all navigable and nonnavigable waters are hereby reserved for appropriation and use of the public pursuant to State law * * *.”

While this language is helpful, and while the attitude it bespeaks is also gratifying, we feel that it must be left to inference that Indian rights are protected, as in connection with section 5, and in the balance of section 6.

We feel that it would be far more satisfactory to make the matter of Indian rights a matter of express recognuition, so as to leave no room for argument by those who don't read section 6, as the Department of the Interior would

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amend it, with the extreme closeness which would be necessary. This could be accomplished by the amendment we suggested in the letter to you of March 20, through amending section 4 of the bill with respect to application of the act by adding the following sentence:

“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 they shall continue to enjoy to the same extent as if this Act had not been passed."

As in the case of our earlier letter to you, I am taking the liberty of sending a copy of this letter to the House sponsors of the legislation and the congressional Representatives of the tribes we represent. Very sincerely yours,

WILKINSON, CRAGUN, BARKER & HAWKINS, By John W. CRAGUN.

WASHINGTON, D. C., March 28, 1956. Re S. 863. Hon. FRANK A. BARRETT, United States Senate,

Washington 25, D. C. DEAR SENATOR BARRETT: We are writing on behalf of the Blackfeet Tribe in Montana and the Hualapai, Salt River Pima-Maricopa and San Carlos Apache Tribes in Arizona concerning your bill, S. 863, relating to the control, appropriation, use, or distribution of water in arid and semiarid States. The interests of these tribes, which include approximately 12,000 of our Indian citizens, may be adversely affected or at least subject to question if this proposal is enacted into law in its present form.

The principal that Indian tribes and their members have certain rights to water for irrigation purposes as a result of their prior aboriginal ownership of the lands within their reservations, and that the Federal Government should preserve these rights has long been settled in the courts (United States v. Winans, 198 C. S. 371 (1905)). In the case of Winters v. United States (207 U. S. 564 (1908)), the Supreme Court decided that where land was reserved by treaty to an Indian tribe, there was impliedly reserved for the Indians waters of the reservation streams necessary for the irrigation of their lands. The socalled Winters doctrine was followed in the case of Conrad Inv. Co. v. United States (161 Fed. 829 (C. C. A. 9 1908)), and was extended to reservations created by Executive order in the case of United States v. Walker River Irrigation District (104 F. 2d 334 (C. C. A. 9, 1939)). In the light of these well-established rulings, there can be no doubt that Indian tribes have vested rights under Federal law to water for irrigation purposes, and thus a deep interest in the use and distribution of flowing waters in arid States.

Our clients recognize that in S. 863, a bill dealing primarily with public domain, you probably did not intend in any way to affect Indian water rights, and further understand that you personally are anxious to protect such rights. Apparently through a drafting oversight, however, the language of the proposed legislation may not accomplish this desirable result because of the failure to refer to Indians or to rights acquired under Federal law. We request, therefore, that the bill be amended to provide explicitly that nothing in the act shall be construed to impair any existing rights of Indians or Indian tribes.

We have been advised that the Department of the Interior has recommended that the phrase "under State law” be stricken from the beginning of section 6, and has suggested that this proposal will solve the aforementioned problem. In our opinion, this proposal, although helpful as far as it goes, still leaves the rights of Indians under section 5 and the remainder of section 6 open to question. We urge, therefore, that section 9 be amended by addition of the following sentence: "Nothing in this act shall be construed to impair or otherwise modify existing rights to water of any Indian or Indian tribe.”

We are taking the liberty of sending copies of this letter to Senator Murray, of Montana, and Senator Goldwater, of Arizona. Respectfully submitted.

STRASSER, SPIEGELBERG, FRIED & FRANL, By ARTHUR LAZARUS, Jr.

Senator WATKINS. Mr. Bennett, will you please take the stand, You have heretofore testified in this matter, and the committee is very anxious to have you go over the amendments proposed during the course of this hearing, and make such comments thereon as you deem proper. Also, in addition, Mr. Bennett, I believe that the record will disclose that it was proposed that you would discuss more fully the amendments submitted by the Department of the Interior, and I will appreciate it if you will submit for the record your comments on the amendments proposed by other witnesses and by the Department.

Mr. BENNETT. I will be glad to do so, Mr. Chairman, but I would appreciate it if I might submit this statement for the record in the next day or two.

Senator WATKINS. That will be satisfactory, and, subject to previous instructions, the record is kept open until April 10 for insertions in the record.

(The information requested from Mr. Bennett follows:)

FURTHER STATEMENT ON AMENDMENTS TO S. 863 BY ELMER F. BENNETT,

LEGISLATIVE COUNSEL, DEPARTMENT OF THE INTERIOR Mr. Chairman, in accordance with your request I am submitting these brief comments concerning the amendments which have been suggested to the proposed legislation under consideration by your committee. All references are to the proposed substitute amendments dated January 16, 1956.

SECTION 5

We would suggest that section 5 be modified for purposes of clarification, as follows:

"SEC. 5. In the use of water for any purpose in connection with Federal programs, projects, or activities no Federal agency or employee of the Government shall interfere with the exercise of any right to the use of water for beneficial purposes theretofore acquired under and recognized by State custom or law except when authorized by Federal law and upon payment of just compensation therefor: Provided, That the provisions of this act or any section thereof shall not be construed to preclude, when authorized by Federal law, the acquisition by or for the United States of such rights by purchase, exchange, gift, or eminent domain or by any manner of acquisition recognized under State law."

This rewrite of section 5 contains only two changes of substance. As it now appears, the word “expressly” in line 15 would be stricken. It is seldom feasible to specify in detail the water rights to be affected by a proposed project at the time of authorization. The requirement that such interferences be “expressly authorized” might be construed to limit an authorization in such a way as to frustrate an approved project. Such a limitation does not appear necessary to accomplish the purpose of the section, which has been stated to be the requirement of payment of just compensation where rights vested under State law are restricted or abrogated because of Federal development.

The second change of substance is the substitution of the words "eminent domain” for the word "condemnation.” This change is recommended in order to assure that the principle of inverse condemnation would continue to apply. There is the possibility that use of the word “condemnation" would be construed to apply only to the statutory condemnation procedure. Some takings occur inadvertently and outside of the usual statutory procedure. In such cases the owner of the right can bring an action for just compensation under the Tucker Act, and such an action has been called "inverse condemnation." There would seem to be no reason to limit the application of this principle so far as the basic purpose of section 5 is concerned.

SECTION 6

We have recommended that the words "under State law" be stricken from the saving clause at the beginning of section 6. There are vested rights under Federal law-such as those of Indians—which should be protected against future appropriations authorized by this section. The Justice Department representa

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tive suggested that a saving clause of this breadth might well defeat the entire purpose of the section by saving to the United States all of its existing rights to the use of unappropriated waters. This would seem most unlikely since the sav. ing clause in the Desert Land Act of 1877 merely read “subject to existing rights!' and vested rights acquired thereunder have been recognized as vested rights. However, to make the intention indelibly clear the clause might read "Subject to existing rights of others."

It has been suggested that the word “unappropriated” be added on page 4, line 22, after the word “all.” We would have no objection to such a change and it would seem to clarify the intent of the section. This change also would make it clear that this section is not designed to affect the appropriability of water already used in Federal projects.

Another amendment submitted to the committee would exclude interstate streams from the provisions of section 6. Since the great bulk of water development in the Western States has occurred on "interstate streams," an exception of this breadth would deprive this section of any practical value, in my opinion. Under section 8 of the 1902 Reclamation Act the Interior Department has followed a consistent practice of complying with State law in developinents on interstate streams. This policy is a sound general rule, particularly in the Western States, in the view of the Interior Department. When conflicts between various State laws interfere with project development of overriding regional or national importànce, enactment of S. 863 would not and could not prevent a future Congress from enacting special project legislation to meet such a situation. At the time of the enactment of the Boulder Canyon Project Act section 8 of the 1902 Reclamation Act had been in effect for some 26 years. Because of interstate conflict it would have been impossible to build Hoover Dam under the reclamation laws. (See Arizona v. California, 283 U. S. 423.) Nevertheless, Congress enacted special legislation authorizing its construction in the light of overriding national and regional considerations. In our view this is the proper method of handling unusual situations on interstate streams. If at all possible, the laws of all affected States should be satisfied. If that cannot be done, then the Congress should take the unique circumstances into account and determine whether special legislation would be desirable.

The first proviso of section 6 (beginning on line 11, p. 5) would seem clearer if it were revised to read as follows:

Provided, That nothing in this act shall be construed to require the acquisition by the United States of rights to the use of water as a condition precedent to storage and release of water solely for the prevention of floods :"

The second proviso, in our view, should be amended to conform exactly to the language recommended above for the proviso to section 5. The same considerations apply to both provisos.

As suggested in our report, we recommend the insertion of the word "hereafter" after the word "right" in line 16 of page 5. Since this bill is intended to be in the nature of remedial quiet-title legislation, we believe such an amendment is essential to its purpose. While it is deemed desirable to have language which will protect the United States against future discriminatory State action, we believe any attempt to apply such a provision retroactively would have an unsettling effect on rights long deemed to be vested in character. This amendment would seem necessary to avoid conflicts between the policy of section 5 and section 6.

It has been suggested that the committee adopt an amendment which would subordinate navigation and power uses to certain other uses insofar as waters arising in the 17 Western States are concerned. Navigation uses have been subordinated in this manner in connection with all flood control and rivers and harbors projects authorized since the Flood Control Act of 1944 (58 Stat. 887); By reference the 1944 provision has been reenacted in the Flood Control Acts and Rivers and Harbors Acts of 1946, 1948, and 1954. So far as navigation uses are concerned, we are not aware of any reason for not making the principle one of general application with respect to western waters.

However, we recommend strongly against general subordination of power generation in this manner. The policies of the various states in this regard vary widely, and it would seem inconsistent with the tenor of S. 863 to prescribe a uniform Federal priority of uses in this one instance. It would seem preferable to let Congress determine with respect to each Federal project whether power generation should be subordinated in the light of availability of water, the assurance of repayment of project costs, and other pertinent factors.

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