Skeem v. United States

• Decision Date: 02 May 1921
• Docket Number: 3528.
• Citation: 273 F. 93
• Parties: SKEEM et al. v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Ninth Circuit

273 F. 93

SKEEM et al. v. UNITED STATES et al.

No. 3528.

United States Court of Appeals, Ninth Circuit.

May 2, 1921

J. H Peterson and T. C. Coffin, both of Pocatello, Idaho, for appellants.

J. L McClear, U.S. Atty., and J. R. Smead, Asst. U.S. Atty., both of Boise, Idaho, for appellees.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The United States brought a suit on behalf of certain Indians who had belonged to the Ft. Hall Indian reservation, to determine their rights as against the appellants herein to the waters of Indian creek for irrigation purposes. In 1868 a treaty was consummated between the United States and the Bannacks and the eastern band of the Shoshones, known as the Ft. Bridger Treaty, which in 1869 was ratified by Congress (15 Stat 673). Article 6 of the treaty provided that any Indian who might desire to commence farming might select a tract of land 'within the reservation of his tribe' for agricultural purposes, and that thereafter he should have the exclusive possession of the same, and that thereafter said land 'may be occupied and held in the exclusive possession of the person selecting it, and of his family, so long as he or they may continue to cultivate it. ' In 1880 a second treaty was entered into, by which it was directed that allotments in severalty should be made on the Ft. Hall reservation, one to each head of a family, and to other persons belonging to the tribes on such reservation. It was further provided that the reserved lands should be surveyed for the purpose of such allotment, and that the same after allotment should be patented. The treaty was ratified in 1889 (25 Stat. 687). In 1898 (31 Stat. 672) a treaty was made whereby the Indians ceded to the United States a large body of land comprising the southern portion of the reservation. The treaty provided that any Indians who had taken lands and made homes on the reservation and were then occupying and cultivating the same under the sixth article of the Ft. Bridger Treaty, should not be removed from the ceded lands, but might retain the tracts of which they had taken possession under the earlier treaty and might receive allotments of the same.

The Indians whose rights were asserted by the government in the present suit had taken possession of and had commenced the cultivation of the lands involved in the suit. This they had done some years prior to the treaty of 1889. They elected to retain the lands which they occupied. The act whereby the treaty of 1898 was ratified provided that any portions of the ceded tract retained by Indians in accordance with the Ft. Bridger Treaty should be allotted to them before any of the ceded lands should be open to settlement or entry. All the remainder of the ceded lands were made subject to entry under the homestead, townsite, stone, timber, and mining laws of the United States. Thereafter the lands were surveyed and allotted, and included among the allotments were the lands of the Indians whose rights are involved in the present controversy. Trust patents were issued for the benefit of the Indians, containing a provision that the lands so patented 'shall not be subject to the judgment, order, or decree of any court.'

Article 8 of the treaty of 1898 provides:

'That water from streams on that portion of the reservation now sold which is necessary for irrigating on land actually cultivated and in use shall be reserved for the Indians now using the same, so long as said Indians remain where they now live.'

The appellants contend that the article operates to limit the extent of the water rights of the Indians, and that it reserves to them only the quantity of water necessary for the irrigation of such portions of their lands as were at that time actually irrigated, and that they were without authority to use water for the irrigation of the remainder of their lands in case they might subsequently reduce the same to cultivation. The court below, properly, we think, ruled against this contention. The language of article 8 should be construed in the light of the following considerations:

First. The grant...