"Provided, That said State, at the request of the Secretary of the Interior, shall from time to time relinquish such of its lands to the United States as at any time are needed for irrigation works in connection with any such government project.

"There is hereby reserved to the United States and excepted from the operation of any and all grants made or confirmed by this Act to said proposed State all land actually or prospectively valuable for the development of water powers or power for hydro-electric use or transmission and which shall be ascertained and designated by the Secretary of the Interior within five years after the proclamation of the President declaring the admission of the State; and no lands so reserved and excepted shall be subject to any disposition whatsoever by said State, and any conveyance or transfer of such land by said State or any officer thereof shall be absolutely null and void within the period above named; and in lieu of the land so reserved to the United States and excepted from the operation of any of said grants there be, and is hereby, granted to the proposed State an equal quantity of land to be selected from land of the character named and in the manner prescribed in section twenty-four of this Act."

2. CALIFORNIA

California was admitted into the Union by act of September 9, 1850, without the enactment of an enabling act (9 Stat. 452-453 c. 50). The act of admission provides:

"Sec. 3. That the said State of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law or do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned; . . . and that all the navigable waters within the said State shall be common highways, and forever free, as well to the inhabitants of said State as to the citizens of the United States, without any tax, impost, or duty therefor..

3. COLORADO

The enabling act of Colorado, approved March 3, 1875 (18 Stat. 474-475 c. 139 § 4) provides:

"Sec. 4.

"And provided further, That said [constitutional] convention shall provide, by an ordinance irrevocable without the consent of the United States and the people of said State, first . . . ; secondly, that the people inhabiting said Territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said Territory, and that the same shall be and remain at the sole and entire disposition of the United States."

4. IDAHO

Idaho was admitted into the Union without enactment of an enabling act. The act of admission, approved on July 3, 1890 (26 Stat. 216 c. 656 § 7) contains no provision concerning water rights and does not expressly reserve public lands.

5. KANSAS

Kansas was admitted into the Union without enactment of an enabling act. The act of admission, approved January 29, 1861 (12 Stat. 127-128 c. 20 § 3) provides:

"Sec. 3.

"but the following propositions are hereby offered to the said people of Kansas for their free acceptance or rejection, which, if accepted, shall be obligatory on the United States and upon the said State of Kansas, to wit:

Provided, That the foregoing propositions hereinbefore offered are on the condition that the people of Kansas shall provide by an ordinance, irrevocable without the consent of the United States, that said State shall never interfere with the primary disposal of the soil within the same by the United States, or with any regulations Congress may find necessary for securing the title in said soil to bona fide purchasers thereof."

6. MONTANA

The enabling act of Montana, approved February 22, 1889, was a part of the enabling act for the States of North and South Dakota, Montana and Washington (25 Stat. 677 c. 180 § 4). This act provides:

"Sec. 4. . . . And said [constitutional] conventions shall provide, by ordinances irrevocable without the consent of the United States and the people of said States:

"First..

"Second. That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, . . .;”

7. NEBRASKA

The enabling act of Nebraska, approved April 19, 1864 (13 Stat. 48 c. 59 § 4) provides:

"Sec. 4.

"And provided, further, That said Constitution shall provide, by an article forever irrevocable, without the consent of the Congress of the United States: "First.

.

"Third. That the people inhabiting said territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States, . ;"

8. NEVADA

The enabling act of Nevada, approved March 21, 1864 (13 Stat. 31 c. 36 § 4, 32 § 10) provides:

"Sec. 4. . .

"And provided further, That said [constitutional] convention shall provide, by an ordinance irrevocable, without the consent of the United States and the people of said state :

"First.

"Third. That the people inhabiting said territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States;"

9. NEW MEXICO

The enabling act of New Mexico, approved June 20, 1910 (36 Stat. 558-559 c. 310 § 2, 564 § 10) provides:

"Sec. 2. * * *

"And said [constitutional] convention shall provide, by an ordinance irrevocable without the consent of the United States and the people of said State"First. ***

"Second. That the people, inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof . . .;

"Seventh. That there be and are reserved to the United States, with full acquiescence of the State, all rights and powers for the carrying out of the provisions by the United States of the Act of Congress entitled "An Act appropriating the receipts from the sale and disposal of public lands in certain States and Territories to the construction of irrigation works for the reclamation of arid lands," approved June seventeenth, nineteen hundred and two, and Acts amendatory thereof or supplementary thereto, to the same extent as if said State had remained a Territory.

***

"All of which ordinance described in this section shall, by proper reference, be made a part of any constitution that shall be formed hereunder, in such terms as shall positively preclude the making by any future constitutional amendment of any change or abrogation of the said ordinance in whole or in part without the consent of Congress.

"Sec. 10.

***

"Provided, That said State, at the request of the Secretary of the Interior, shall from time to time relinquish such of its lands to the United States as at

any time are needed for irrigation works in connection with any such government project.

"There is hereby reserved to the United States and exempted from the operation for any and all grants made or confirmed by this Act to said proposed State all land actually or prospectively valuable for the development of water powers or power for hydroelectric use or transmission and which shall be ascertained and designated by the Secretary of the Interior within five years after the proclamation of the President declaring the admission of the State; and no lands so reserved and excepted shall be subject to any disposition whatsoever by said State, and any conveyance or transfer of such land by said State or any officer thereof shall be absolutely null and void within the period above named; and in lieu of the land so reserved to the United States and excepted from the operation of any of said grants, there be, and is hereby, granted to the proposed State an equal quantity of land to be selected from land of the character named and in the manner prescribed in section eleven of this Act."

10. NORTH DAKOTA

The enabling act of North Dakota, approved February 22, 1889 was part of the enabling act for the States of North and South Dakota, Montana and Washington (25 Stat. 677 c. 180 § 4).

See No. 6, above, for provisions in this act.

11. OKLAHOMA

The enabling act of Oklahoma, approved June 16, 1906 (34 Stat. 269-270 c. 3335 § 3, 278 § 22) provides:

"Sec. 3. * * * And said [constitutional] convention shall provide in said constitution

"First. ***

"Third. That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, *** and that until the title to any such public land shall have been extinguished by the United States, the same shall be and remain subject to the jurisdiction, disposal and control of the United States.

"Sec. 22. That the constitutional convention provided for herein shall, by ordinance irrevocable, accept the terms and conditions of this Act."

12. OREGON

The State of Oregon was admitted into the Union without enactment of an enabling act. The act of admission, approved February 14, 1859 (11 Stat. 383-384 c. 33 §2, § 4) provides:

"Sec. 2. And be it further enacted, That the said State of Oregon shall have concurrent jurisdiction on the Columbia and all other rivers and waters bordering on the said State of Oregon so far as the same shall form a common boundary to said State, and any other State or States now or hereafter to be formed or bounded by the same; and said rivers and waters, and all the navigable waters of said State, shall be common highways and forever free, as well as to the inhabitants of said State as to all other citizens of the United States, without any tax, duty, impost, or toll therefor.

"Sec. 4. And be it further enacted, That the following propositions be, and the same are hereby, offered to the said people of Oregon for their free acceptance or rejection, which, if accepted, shall be obligatory on the United States and upon the said State of Oregon, to wit: First. . . Provided, That the foregoing propositions, hereinbefore offered, are on the condition that the people of Oregon shall provide by an ordinance, irrevocable without the consent of the United States, that said State shall never interfere with the primary disposal of the soil within the same by the United States, or with any regulations Congress may find necessary for securing the title in said soil to bona fide purchasers thereof...."

13. SOUTH DAKOTA

The enabling act of South Dakota, approved February 22, 1889, was a part of the enabling act for the States of North and South Dakota, Montana and Washington (25 Stat. 677 c. 180 § 4).

See No. 6, above, for provisions in this act.

14. TEXAS

The joint resolution for annexing Texas to the United States, approved March 1, 1845 (5 Stat. 797-798, No. 8) provided:

"Sec. 2. And be it further resolved, That the foregoing consent of Congress is given upon the following conditions, and with the following guarantees, to wit: First, Second, Said State, when admitted into the Union, after ceding to the United States, all public edifices, fortifications, barracks, ports and harbors, navy and navy-yards, docks, magazines, arms, armaments, and all other property and means pertaining to the public defence belonging to said Republic of Texas, shall retain all the public funds, debts, taxes, and dues of every kind, which may belong to or be due and owing said republic; and shall also retain all the vacant and unappropriated lands lying within its limits, to be applied to the payment of the debts and liabilities of said Republic of Texas . . ."

15. UTAH

The enabling act of Utah, approved July 16, 1894 (28 Stat. 108 c. 138 § 3, 110 §12) provides:

"Sec. 3...

"And said [constitutional] convention shall provide, by ordinance, irrevocable without the consent of the United States and the people of said State"First.

"Second. That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof; . . . and that until the title thereo shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, .;

"Sec. 12. . . .

"the following grants of land hereby made to said State for the purposes indicated, namely:

"For the establishment of permanent water reservoirs for irrigating purposes, five hundred thousand acres . .

16. WASHINGTON

The enabling act of Washington, approved February 22, 1889, was a part of the enabling act for the States of North and South Dakota, Montana and Washington (25 Stat. 677 c. 180 § 4).

See No. 6, above, for provisions in this act.

17. WYOMING

The State of Wyoming was admitted into the Union on July 11, 1890, without enactment of an enabling act. The act of admission (26 Stat. 223-226 c. 664) contains no provisions dealing with water rights or public lands.

II. PROVISIONS IN THE CONSTITUTIONS OF RECLAMATION STATES DEALING WITH OWNERSHIP AND CONTROL OF WATER. IF CONSTITUTION WAS APPROVED BY CONGRESS

1. ARIZONA

Arizona adopted its constitution of 1910 and submitted it to Congress. Congress by joint resolution of August 21, 1911 (37 Stat. 39 No. 8), the act of admission, required the electors to vote upon and ratify and adopt a proposed amendment to this constitution, Art. VIII, § 1, as a prerequisite to admission as a State. This section provided for "Recall of Public Officers". The governor was to certify the adoption to the President and the President to proclaim compliance with this joint resolution and admission of the State, which the President did on February 14, 1912 (37 Stat. 1728). The following provisions in the Arizona constitution of 1910 were not affected by the joint resolutoin of 1911:

"CONSTITUTION OF THE STATE OF ARIZONA

"ARTICLE XVII-WATER RIGHTS

"Section 1. The common law doctrine of riparian water rights shall not obtain or be of any force or effect in the State.

"Section 2. All existing rights to the use of any of the water in the State for all useful or beneficial purposes are hereby recognized and confirmed." (Revised Code of Arizona, 1928, page c).

"ARTICLE XX-ORDINANCE

"The following ordinance shall be irrevocable without the consent of the United States and the people of this State:

"Fourth. The people inhabiting this State do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof and to all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through or from the United States or any prior sovereignty, and that, until the title of such Indian or Indian tribes shall have been extinguished, the same shall be, and remain, subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States. ""Tenth. There are reserved to the United States, with full acquiescence of this State, all rights and powers for the carrying out of the provisions by the United States of the Act of Congress entitled "An Act appropriating the receipts from the sale and disposal of public lands in certain States and Territories to the construction of irrigation works for the reclamation of arid lands," approved June 17, 1902, and Acts amendatory thereof or supplementary thereto, to the same extent as if this State had remained a Territory." (Revised Code of Arizona, 1928, pages CIV and CXIII)

2. CALIFORNIA

The Constitution of November 13, 1849, was submitted to Congress by the President on February 13, 1850 and was "found to be republican in its form of government," according to the preamble to the act of admission (9 Stat. 452). There was no provision in the California constitution of 1849 concerning ownership and control of water or of public lands. (Thorpe's Federal and State Constitutions, House Doc. 357, 59th Cong., v. 1, p. 391-407).

3. COLORADO

The enabling act of Colorado, of March 3, 1875, provided that if the constitution should be formed in compliance with the provisions of this act, and if a majority of legal voters voted for it, the governor should certify the same to the President, who should issue a proclamation declaring the State admitted into the Union, "without any further action whatever on the part of Congress." (18 Stat. 475 c. 139 § 5). The President issued this proclamation on August 1, 1876 (19 Stat. 665).

The Colorado constitution of 1876 contained the following provisions:

"COLORADO CONSTITUTION, 1876

66 'ARTICLE XVI.-MINING AND IRRIGATION

IRRIGATION

"Section 5. The water of every natural stream not heretofore appropriated within the State of Colorado, is hereby declared to be the property of the public; and the same is dedicated to the use of the people of the State, subject to appropriation as hereinafter provided.

"Section 6. The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes.

"Section 7. All persons and corporations shall have the right of way across public, private, and corporate lands for the construction of ditches, canals, and flumes for the purpose of conveying water for domestic purposes, for the irrigation of agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just compensation.