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court reviewed the issue in detail, and then quoted the Enabling Act provision which provides, until Indian title had been extinguished, Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States. It then added: "So far as we are advised, the beneficial ownership of the Indians in the bed and shores of the lake has not been extinguished by the Government."109 In succinct terms the court in Rochester declared:

It is inadmissible to suppose that the United States having agreed to hold this area in trust for the exclusive use and benefit of the Indian tribes, intended to put the tribes at the mercy of the future state,

. . .110

In Choctaw Nation v. Oklahoma," the Supreme Court likewise declared that the United States had ceded to the Indian Nations there involved the bed of the navigable portion of the Arkansas River in that jurisdiction. Title to the bed of that navigable stream and the Indian rights to the use of it vis-a-vis the State of Oklahoma and those claiming under it, are prime issues in the process of resolution.

On July 3, 1868, the United States of America entered into a Treaty between the United States of America and the Eastern Band of Shoshones and Bannock Tribe of Indians.112 By Agreement dated February 23, 1889, the Shoshone and Bannock Tribes ceded to the United States a substantial portion of the lands embraced within the July 3, 1868, Treaty mentioned above. They also agreed to settle upon the Fort Hall Reservation in the Territory of Idaho." Shortly thereafter additional lands were ceded to the United States by an agreement with the Shoshone and Bannock Tribes. Congress approved that arrangement on June 6, 1900. It provided that Indians occupying lands within the newly ceded area could continue that occupancy. Moreover, it provided that the Treaty of 1868 would continue except as modified.

114

A conflict arose in Skeem v. United States115 as to whether the Indians who retained lands in the ceded areas outside of the Fort Hall Reservation could continue to enjoy their Winters Doctrine rights to the use of water although the lands were outside of the Fort Hall Indian Reservation and in an area subject to the laws of the State of Idaho. It was contended that the Indian rights to the use of water were limited to the quantity of water they were

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using at the time of the cession of the lands surrounding those which the Indians retained outside of the Reservation."

118

As in the Winans Decision,117 involving the off-reservation Yakima Nation rights of fishery, the court sustained the Winters Doctrine rights to the use of water claimed by the members of the ShoshoneBannock Tribes residing outside of the Fort Hall Reservation. Citing both Winans and Winters, the Skeem Decision of the Ninth Circuit Court of Appeals declared that the Tribes reserved-did not granttheir rights to the use of water, by the Treaty of 1868. Although their allotments were outside of the Reservation within areas generally subject to State law, the Indians were entitled to exercise rights to the use of water to cultivate eventually the whole of their lands so reserved to their use by the Treaty of 1868 and subsequent agreements, Acts of Congress, or both.118

It will be recalled that the Constitution adopted by the people of the State of Idaho disclaimed all right and title to Indian lands, acknowledging absolute jurisdiction and control by the Congress of the United States over those lands. Skeem is wholly consistent with that disclaimer and acknowledgment of the immunity of Indian lands and appurtenances from that invasion of jurisdiction. United States v. Hibner, 110 rendered by the United States District Court of Idaho, involved the same general principles as stated in Skeem respecting the Winters Doctrine rights to the use of water by Indians residing outside of the Fort Hall Indian Reservation. Paraphrasing the Compact between the United States and the State of Idaho, the court said this:

Going back to the time when Idaho was a territory, and when the treaty of 1869 was entered into, we find the government had the power to reserve the waters flowing through the territories and exempt them from appropriation under the state laws.120

Hibner, referring to the unique nature of the Indian lands outside of the Fort Hall Indian Reservation, the Treaty of 1868, the special agreements, and Acts of Congress guaranteeing those Indian land owners rights to the use of water, declared that, as grantee of the Indian lands, a non-Indian would only be entitled to a water right for the actual acreage that was under irrigation at the time title passed from the Indians, . . . " After acquisition of Indian lands the white man becomes subject to the State law. It is re

116. Id. at 94-95.

117. 198 U.S. 371 (1905).

118. Skeem v. United States, 273 F. 93, 95 (9th Cir. 1921). 119. 27 F.2d 909 (D.C. Idaho 1928).

120. 14. at 911,

12%. W. at 912.

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emphasized, however, that these lands in Hibner are outside of the Indian Reservation. As ruled in McIntire, the State appropriation laws respecting rights to the use of water have no application within the Indian Reservations.122

Irrespective of the broadly based concepts of the immunity of ·Indian Winters Doctrine rights to the use of water from state laws, and those claiming under them, providing for the appropriation of water rights, the officials of the states have continued to challenge that immunity. Moreover, literally thousands of non-Indians occupying lands within Indian Reservations have monopolized the Indian water resources, claiming rights under state laws to the continuing irreparable damage to the Indians.

For example, Arizona, in clear violation of the Winters Doctrine, attempted to limit the Indian rights in the main stream of the Colorado River. It asserted in Arizona v. California123 that Indian rights were subject to the doctrine of equitable apportionment and hence the Indian needs would be equated vis-a-vis Arizona needs. Not so, said the Supreme Court, "even were we to treat an Indian Reservation like a State, equitable apportionment would still not control since, under our view, the Indian claims here are governed by the statutes and Executive Orders creating reservations."12 Arizona also urged unsuccessfully that the concepts of the Winters Doctrine were inapplicable after it had achieved statehood. In rejecting the state's contentions, the Court pointed to the above reviewed Commerce and Property provisos of the Constitution and said: "We have no doubt about the power of the United States under these clauses to reserve water rights for its reservations and its property."

91125

In the conflict between the Indian prior and paramount rights and the state rights, it is essential to observe that the immunity. of Indian rights prevails irrespective of the character of deraignment of their title to those rights. In Winters the Indians reserved to themselves-did not grant--their rights to the use of water when their Reservation was created by Treaty and subsequent Agreement. Title to Arizona v. California Indian rights is different in its derivation. There the Reservations were created by Executive Order or by Congressional Act.120 Thus it was the United States which had originally extinguished the Indian rights to the use of water and then restored those rights when the Reservations on the Lower Colorado River were established. Quite aside, however, from whether

122. United States v. McIntire, 101 F.2d 650 (9th Cir. 1939).

123. Arizona v. California, 373 U.S. 646 (1963).

124. Id. at 597.

125. Id. at 598.

126. Id. at 596-601.

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the Indians retained to themselves their rights to the use of water, or whether their rights were once extinguished by the Federal Government and later restored, the concepts of immunity of those rights from state law remains applicable.

In connection with the Indian rights to the use of water in Arizona v. California, reference is made here to the Enabling Act for, and the Constitution of Arizona. People of that State, identical with North Dakota, South Dakota, Montana, Idaho, and Washington, forever disclaimed all right and title to Indian lands as a condition to Arizona's admission into the Union. They likewise covenanted that until the title of the Indians to their lands had been extinguished, Indian land, which includes Indian rights to the use of water, would remain "under the absolute jurisdiction and control of the Congress of the United States."12: Similar to the five States being principally considered here, Arizona adopted identical language guaranteeing immunity from State invasion of Indian lands in its Constitution.1

128

There was summarized in United States v. Ahtanum Irr. Dist.129 the precept of the law respecting the immunity from the State of Washington of Indian rights to the use of water required to irrigate Yakima Indian lands there involved. In those decisions the Court of Appeals for the Ninth Circuit specificially declared:

The rights to the use of that quantity of water was for the reasons previously indicated originally the exclusive property of the United States as trustee for the Indian tribe. No portion of that volume of water or of the right to use thereof, was open to appropriation . . . under state law. ..

130

Montana's McIntire Decision was cited as authority for the proposition enunciated by the court in Ahtanum.131 Further, in regard to the immunity of Indian Winters Doctrine rights to the use of water from appropriators claiming under State law, the Ahtanum Decision is authority for the proposition that Indian "[r]ights reserved by treatics such as this are not subject to appropriation under state law, nor has the state power to dispose of them.”132

IV. STATE CLAIMS.

Although the immunity from the States and those claiming under them, of Indian lands and Winters Doctrine rights to the use of

127. ARIZ. REV. STAT. ANN. at 81 (1956); Enabling Act, June 20, 1910, ch. 310, § 20, 36 Stat. 557, 568-579.

12S. Ariz. REV. STAT. ANN., ARIZ. CONST. art. XX at 573, 574.

129. United States v. Ahtanum Irrigation Dist., 236 F.2d 321 (9th Cir. 1956), cert. denied, 352 U.S. 98S (1956); 330 F.2d 897 (1965); 338 F.2d 307, cert. denied, 381 U.S. 924 (1965). 130. Id. at 340.

131. United States v. Mentire, 101 F.2d 650 (9th Cir. 1939).

132. United States v. Alifanum Irrigation Dist., 236 F.2d 321, 328 (9th Cir. 1956).

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water, has been repeatedly declared by the decisions of the Supreme Court, the lower courts, by the Congress in the Enabling Acts, and by the Constitutions of the States of North Dakota, South Dakota, Montana, Idaho, and Washington, the illegal seizure of Indian rights, allegedly under State law, continues. It is one of the greatest trageedics affecting the Western Indians today. Hence, it is essential to consider the basis, if any, in the law which lends validity to non-Indian claims to Indian rights within the Indian Reservations, or in water resources which arise off the Reservations but which supply the Indians. The States of North Dakota, South Dakota, Montana, Idaho and Washington have complex statutory procedures for the acquisition, adjudication and administration of rights to the use of water. At issue is whether those laws can create and invest in those claiming under them, any color of right to seize Indian rights to the use of water.

Turning to the laws of North Dakota, that State by statute declares, subject to noted exceptions not specifically including Indian rights, that "all waters within the limits of the state ... belong to the public. . . ."133 Those waters are subject to appropriation for beneficial use. Rights to the use of water are acquired by complying with a recently amended series of complex enactments, rules and regulations adopted by North Dakota.134

South Dakota has announced that the people of that State have a paramount interest in the use of all water of the State and that South Dakota shall determine which waters can be converted to public use.135 That State, moreover, declared "all water within the state is the property of the people of the state, but the right to the use of water may be acquired by appropriation in the manner provided by law." Like North Dakota, the State of South Dakota has recently adopted far-reaching laws respecting the management and control by the state of its water resources.

137

Montana's new Constitution states that all existing rights to the use of water for any useful or beneficial purposes are recognized and confirmed.138 This excludes the Indian Winters Doctrine rights to the use of water for future development. The Constitution provides that "[a] surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of the people. . . "139 Montana, like other Western

133. N.D. CENT. CODE § 61-01-01 (1960).

134. N.D. CENT. CODE $$ 61-01-01.1, to 02 (Supp. 1973), §§ 61-04-02, to 06, 09, 11, 14, 15, 22 (Supp. 1973).

135.

S.D. COMPILED LAWS ANN. § 46-1-1 (1967).

136. 13 S.D. COMPILED LAWS ANN. § 46-1-3 (1967).

137. Sec 19 S.D. COMPILED LAWS ANN. § 46-1-2, to 05; § 46-2-1.1; § 46-6-3, 6, 6.1, 6.2, 11 (Supp. 1974).

138. 1 MONT. CONST. art. 9, § 3.

139. Id.