Winters v. United States

Decision Date01 October 1906
Docket Number1,336
PartiesWINTERS et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

Appeal from the Circuit Court of the United States for the District of Montana.

E. C Day, James A. Walsh, Carpenter, Day & Carpenter, and Walsh &amp newman, for appellants.

Carl Rasch, for appellee.

Before GILBERT and ROSS, Circuit Judges, and DE HAVEN, District Judge.

GILBERT Circuit Judge.

This is the second appeal in this case. The former appeal was taken from an interlocutory order granting a preliminary injunction pendente lite enjoining the appellants from using or in any manner interfering with the use by the government of the United States or the Indians, upon the Ft. Belknap Indian Reservation, of 5,000 inches tot the waters of Milk river and its tributaries in the district of Montana. Winters v United States (C.C.A.) 143 F. 740. The present appeal is taken from the final decree entered in said cause upon the bill and answer making the preliminary injunction perpetual. It is admitted that the answer sets forth the same facts that were presented in the affidavits on which the preliminary injunction was granted. We have carefully considered the record, and we find that the questions here presented are precisely the questions which were discussed and determined upon the former appeal, and that the record brings to our attention no new issues or questions. The appellants cite a case not considered on the former appeal (United States v. Choctaw Nation, 179 U.S. 494, 21 Sup.Ct. 149, 45 L.Ed. 291), and earnestly insist that under the principles there announced the treaty which is involved in the present case should be construed in accordance with their contention. In that case the court construed the following provision of a treaty with Indians:

'The Choctaws and Chickasaws, in consideration of the sum of $300,000.00 hereby cede to the United States the territory west of the ninety-eighth degree of west longitude known as the Leased District.'

The contention was that the lands were conveyed in trust, but the court held that the treaty made an absolute, unconditional cession to the United States, and in the course of the opinion used the following language, which is relied upon by the appellants herein:

'It has never been held that the obvious palpable meaning of the words of an Indian treaty may be disregarded because in the opinion of the court that meaning may, in a
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7 cases
  • United States v. Fallbrook Public Utility District
    • United States
    • U.S. District Court — Southern District of California
    • August 8, 1958
    ...of all water reasonably necessary for the needs of the Indians. The case must be read with the 9th Circuit opinion below, 1906, 143 F. 740, 148 F. 684. Conrad Inv. Co. v. United States, 9 Cir., 161 F. 829, termed the Indians' right to water "a paramount right" and the decree provided for mo......
  • U.S. v. Superior Court In and For Maricopa County
    • United States
    • Arizona Supreme Court
    • January 30, 1985
    ...for irrigation of the reservation lands. Id. at 748. This doctrine was confirmed on a second hearing before the circuit court, 148 F. 684 (9th Cir.1907), and the decision was affirmed by the United States Supreme Court in Winters v. United The full extent of the Winters doctrine was clarifi......
  • United States v. Walker River Irr. Dist.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 14, 1939
    ...citizens of the territory were required to refrain from trespassing. 12 In the briefs of appellants filed in this court in that case, 9 Cir., 148 F. 684, attention was called to § 3 of the act of Congress ratifying the agreement with the Ft. Belknap Indians, 25 Stat. 133, expressly declarin......
  • Merrill v. Bishop
    • United States
    • Wyoming Supreme Court
    • September 13, 1955
    ...of relation back to a priority of the time of the Indian Treaty of 1868.' In Winters v. United States, 9 Cir., 143 F. 740, affirmed 9 Cir., 148 F. 684; Id., 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340, the court had under consideration a treaty of Indian lands ceded to the United States situat......
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1 books & journal articles
  • CHAPTER 7 INDIAN WATER RIGHTS: OLD PROMISES, NEW OPPORTUNITIES
    • United States
    • FNREL - Special Institute Mineral Development On Indian Lands (FNREL)
    • Invalid date
    ...Water Rights: A Mystery Reexamined, 13 Western Hist. Q. 17 (Jan. 1982). [14] Winters v. United States, 143 F. 740, 747 (9th Cir.) aff'd 148 F. 684 (9th Cir. 1906), aff'd 207 U.S. 564 (1908); Arizona v. California, 373 U.S. 546, 600 (1963). A "time immemorial" priority date has been suggeste......

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