143 F. 740 (9th Cir. 1906), 1,243, Winters v. United States

Docket Nº:1,243.
Citation:143 F. 740
Party Name:WINTERS et al. v. UNITED STATES.
Case Date:February 05, 1906
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 740

143 F. 740 (9th Cir. 1906)

WINTERS et al.

v.

UNITED STATES.

No. 1,243.

United States Court of Appeals, Ninth Circuit.

February 5, 1906

Page 741

This is an appeal taken from an order secured by appellee (complainant in the court below) enjoining appellants (defendants in the court below) from interfering in any manner with the use of 5,000 inches of the waters of Milk river in the state of Montana. The order was made by the court upon a hearing under a rule to show cause why the preliminary injunction should not be granted. The suit involves the right of the appellee, and of the Indians residing upon the Ft. Belknap Indian reservation, to the use of the waters of Milk river for useful and beneficial purposes. This Indian reservation was established by the treaty or convention between the government of the United States and the Indians May 1, 1888 (25 Stat. 113-133, c. 213). Appellee's complaint is quite lengthy, as are also the affidavits and statements presented by the appellants at the hearing. We shall endeavor to condense the facts derived from the pleadings and evidence, and make a general reference to the statutes and treaties bearing upon the issues raised herein. The Indian reservation comprises an area of about 1,400 square miles, embracing about 1,000,000 acres of land, the greater portion of which is grazing land, 'well adapted to stock raising.' Act June 10, 1896, c. 398, 29 Stat. 351. There are, however, some portions thereof that are suitable for agriculture, and of these portions 'approximately about 30,000 acres are susceptible of irrigation with the waters of Milk river. ' There is but little water to be found upon the reservation itself, and this scarcity of water 'renders the pursuit of agriculture difficult and uncertain.' 29 Stat. 351, c. 398. The center of Milk river is the northern boundary line of the reserve throughout its entire width, and this stream if the only source of supply for the various uses of the government and the Indians at the agency, and for irrigation purposes generally on the reserve. Since 1889 and 1890 a portion of the waters of the stream have been continuously used by the government and the Indians for household, domestic, and irrigating purposes, at and near the agency proper, and this is the only source of supply from which to satisfy their requirements and necessities at that place. Since the year 1898 water has been taken from Milk river by means of a canal and used on the reservation for the purpose of irrigating the cultivable lands susceptible of irrigation with the waters of that stream. As alleged in the complaint, 'approximately 5,000 acres of land are being irrigated upon said reservation for the purpose of producing thereon crops of hay, grass, grain, and vegetables with the waters of that stream. As alleged in the complaint, 'approximately 5,000 acres of land are being irrigated upon said reservation for the purpose of producing thereon crops of hay, grass, grain, and vegetables with the waters diverted by means of said canal and lateral ditches distributing said waters from said canal over the lands. ' This canal has a carrying capacity of at least 5,000 inches of water, and such amount of water is required for the present needs and requirements of the government and the Indians, for household, domestic, agricultural, and irrigating purposes on said reserve. Besides, stock raising, principally horses and cattle, has always been and is now extensively carried on by the Indians everywhere on the reserve. 'The main reliance of these Indians for self-support is to be found in cattle raising.' 29 Stat. 351, c. 398. And the stock ranging and feeding in the northern portion of the reserve all along the channel of the stream, from the eastern to the western limits of the reserve, must depend principally upon Milk river for drinking water. At the time of the institution of this suit no water reached any part of the reservation, the same having been diverted by the appellants.

Page 742

Prior to the enactment of any law recognizing the right of appropriation to the waters on the public lands all of the country within the state of Montana was Indian country. By the provisions of article 4 of the treaty of October 17, 1855, proclaimed April 25, 1856, there was established and reserved to the Ft. Belknap Indians, and other Indian tribes, as and for their home and abiding place, nearly all that part of the state lying north of the Mussel Shell river, and extending from the crest of the main range of the Rocky Mountains eastward, approximately to what is now the western boundary line of the Ft. Peck Indian reservation. Revision of Indian Treaties, p. 7, 11 Stat. 658. By the terms and provisions of this treaty the Ft. Belknap Indians reserved to themselves the 'uninterrupted privileges of hunting, fishing, and gathering fruit, grazing animals, curing meat, and dressing robes. ' Article 3 of Treaty, 11 Stat. 647. The territory which was so set apart and reserved to them at that time embraced the channel and the waters of Milk river from its source to its mouth lying within the confines of the United States. This continued to be the abode of these Indians until 1874, at which time their territory was reduced so as to embrace nearly all that part of Montana lying to the north of the Missouri river, and extending from the Rocky Mountains eastward to the Dakota boundary line, including Milk river. Act of April 15, 1874, c. 96, 18 Stat. 28. The tract so set apart remained Indian country and the Indian reservation of these Indians until 1888, at which time the present Ft. Belknap Indian reservation was carved out of the larger reserve established in 1874 as their 'permanent home,' with the center of Milk river on the ground that the waters of the stream in question were legally and properly appropriated by them and each of them for a beneficial and useful purpose, under the laws of the state of Montana authorizing the appropriation of the waters of the streams within that state for household, domestic, agricultural, irrigating, and other proper purposes as the same are sanctioned, recognized, and confirmed by the federal statutes. Their rights to the water are based upon the appropriation of the waters, and the rights relied upon and asserted by them are those, and those only, that inure to appropriators of water under state and federal laws.

The proofs show: That the individual appellants are owners of different quantities of land acquired by them under the desert land laws of the United States. That their title to a large portion of the lands was obtained from the government of the United States under said laws. Others had settled upon and applied to enter the land claimed by them under the desert land laws. Some of them had appropriated different quantities of water from the West Fork of Milk river, and others from the North Fork of Milk river, and all claim that at the time the waters were appropriated and diverted by them the lands along the bank of said stream above the point of said diversions were unappropriated public lands. Large amounts of money exceeding over $100,000, had been expended by them in diverting the water and in making other improvements on their lands. The acquisition of their lands under the desert land laws, and appropriations of water, were made during the land laws of the United States...

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