United States v. Ahtanum Irrigation District

• Decision Date: 10 July 1956
• Docket Number: No. 14714.,14714.
• Citation: 236 F.2d 321
• Parties: UNITED STATES of America, Appellant, v. AHTANUM IRRIGATION DISTRICT et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

236 F.2d 321 (1956)

UNITED STATES of America, Appellant, v. AHTANUM IRRIGATION DISTRICT et al., Appellees.

No. 14714.

United States Court of Appeals Ninth Circuit.

July 10, 1956.

COPYRIGHT MATERIAL OMITTED

J. Lee Rankin, Asst. Atty. Gen., William H. Veeder, David R. Warner, Attys., Dept. of Justice, Washington, D. C., for appellant.

Fred C. Palmer, Yakima, Wash., Charles L. Powell, Kennewick, Wash., J. W. McArdle, E. C. Prestbye, Spokane, Wash., for appellee.

Don Eastvold, Atty. Gen. of Washington, E. P. Donnelly, Asst. Atty. Gen., for intervening appellee, State of Washington.

Before POPE, LEMMON and CHAMBERS, Circuit Judges.

POPE, Circuit Judge.

This is a suit brought by the United States as trustee for the Yakima tribe of Indians to establish and quiet title to the Indians' right to the use of the waters of Ahtanum Creek in the State of Washington, which right is alleged to have been reserved by the treaty of June 9, 1855 between the United States and the Confederated Tribes of Yakima Indians.¹ This was the treaty by which the Yakima Indian reservation was set aside for the Indians. The defendants in the main are the non-Indian owners of lands outside the reservation who had appropriated or claimed rights to the use of the waters of the stream which formed the northern boundary of the reservation.²

Holding that the United States had not proved that it, as trustee or otherwise, had any right, title or interest in any water of Ahtanum Creek,³ the trial court dismissed the action and the complaint on the merits.

The complaint sets out the treaty whereby a certain tract of land in the then Territory of Washington was set aside and reserved for the use of the Yakima tribe as a home and abiding place of the Indians. It alleged that in view of the purposes of the treaty, its intention to encourage the Indians to give up their nomadic habits and to till the soil, and also in view of the arid character of the lands within the reservation which required irrigation for successful cultivation, the treaty operated to reserve sufficient waters of Ahtanum Creek for the Indians' needs, both present and future. The complaint further alleged that on May 9, 1908, "in direct violation of the rights * * * reserved to the Yakima tribe", the then chief engineer of irrigation, Bureau of Indian Affairs, entered into an agreement with certain white water users whose lands were situated outside of the reservation, whereby they were to have and be entitled to 75 percent of the natural flow of Ahtanum Creek and the Yakima Indians were to have the remaining 25 percent of that stream's natural flow. There was added to the prayer for an adjudication of the rights of the parties to the use of the stream waters, a prayer that the court adjudge this agreement of May 9, 1908 to be invalid and of "no force and effect".

The court held: 1, that there was no reservation of any water rights by the Treaty of 1855;⁴ 2, that in any event the agreement of 1908 gave the white owners nothing that they did not already own;⁵ and 3, that an adjudication in the courts of the State of Washington in 1925 determining the rights of the white landowners outside of the Indian reservation to the 75 percent of the natural flow of the stream, had been "encouraged" by the United States, and thus the United States was thereby barred from claiming any part of this 75 percent.⁶ Accordingly, the court concluded that the cause should be dismissed.

In view of the action taken in the court below, it is apparent that we must consider the following questions, all of which are raised by the Government's specification of errors.

First, were any rights to the use of any of the waters of Ahtanum Creek reserved by the Treaty of 1855? If there were none, then the question of the validity of the agreement of 1908 need not be discussed.

Second, if it be concluded that by the treaty of 1855, rights to the use of the waters of Ahtanum Creek were reserved for the benefit of the Indians, were the rights thus reserved any greater than the 25 percent of the natural flow of the stream? If the rights of the Indians, as reserved, did not exceed the 25 percent allocated to them in 1908, it would appear that no serious question can be raised as to the validity of that agreement.

Third, if the rights reserved for the Indians by the treaty were of the extent and size claimed by the United States, that is to say, rights to sufficient waters for the needs of the Indians as they might exist in the future, then we must of necessity consider the validity and force of the 1908 agreement, for it is conceded that the present needs of the Indians are sufficient to require substantially the whole flow of the stream. If the agreement purported to deprive the Indians of rights which actually belonged to them, then that circumstance must be considered in determining whether the Government officials in executing it exceeded their power and authority.

That the Treaty of 1855 reserved rights in and to the waters of this stream for the Indians, is plain from the decision in Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340. Apart from the date of the treaty discussed in that case, the facts there are practically identical with those which attended the treaty of 1855 with the Yakima tribes. In the Winters case, as here, the reservation was created by treaty; the reserved lands were a part of a much larger tract which the Indians had the right to occupy; and the lands were arid and without irrigation practically valueless. In the Winters case the Milk River was designated as the northern boundary of the reservation. This court, in its decision, 143 F. 740, 746, which the Supreme Court was affirming, had said: "We are of opinion that it was the intention of the treaty to reserve sufficient waters of Milk river, as was said by the court below, `to insure to the Indians the means wherewith to irrigate their farms,' and that it was so understood by the respective parties to the treaty at the time it was signed." The attempted efforts to distinguish the Winters case from this one, are without force.⁷

It is true that the Yakima treaty described the Ahtanum as the north boundary of this reservation, whereas the boundary of Fort Belknap reservation in the Winters case was described as beginning at a point in the middle of the main channel of Milk River. But a tract of land bounded by a nonnavigable stream is deemed to extend to the middle of the stream. Hirt v. Entus, 37 Wash. 2d 418, 428, 224 P.2d 620.⁸ The suggestion that much of the water of the Ahtanum Creek originates off the reservation is likewise of no significance. The same thing was true of the Milk River in Montana; and it would be a novel rule of water law to limit either the riparian proprietor or the appropriator to waters which originated upon his lands or within the area of appropriation. Most streams in this portion of the country originate in the mountains and far from the lands to which their waters ultimately become appurtenant.

No significance attaches to the early date of this treaty for the record is plain that some irrigation from the Ahtanum had begun in this valley before 1855 in which the Indians had participated. It is true that this early use was on the north side of the Creek, but they then had occupancy of both sides, and we cannot assume that when they agreed to move to the south side of the Creek they surrendered all rights to use of the water. As in the Winters case, we must answer in the negative the questions there posed: "Did they give up all this? Did they reduce the area of their occupation and give up the waters which made it valuable or adequate?" As was said in the Winters case, 207 U.S. 564, 576, 28 S.Ct. 207, 211, 52 L.Ed. 340: "The reservation was a part of a very much larger tract which the Indians had the right to occupy and use, and which was adequate for the habits and wants of a nomadic and uncivilized people." When the Indians agreed to change their nomadic habits and to become a pastoral and civilized people, using the smaller reservation area, it must be borne in mind, as the Supreme Court said of this very treaty, that "the treaty was not a grant of rights to the Indians, but a grant of right from them — a reservation of those not granted." United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089. Before the treaty the Indians had the right to the use not only of Ahtanum Creek but of all other streams in a vast area. The Indians did not surrender any part of their right to the use of Ahtanum Creek regardless of whether the Creek became the boundary or whether it flowed entirely within the reservation.⁹

This brings us to a discussion of the question of quantum of waters reserved. It is obvious that the quantum is not measured by the use being made at the time the treaty reservation was made. The reservation was not merely for present but for future use. Any other construction of the rule in the Winters case would be wholly unreasonable. This matter was directly passed upon in Conrad Inv. Co. v. United States, 9 Cir., 161 F. 829, decided shortly after the Winters decision. This court was there undertaking to follow and apply that decision. It said, 161 F. at page 832: "What amount of water will be required for these purposes may not be determined with absolute accuracy at this time; but the policy of the government to reserve whatever water of Birch creek may be reasonably necessary, not only for present uses, but for future requirements, is clearly within the terms of the treaties as construed by the Supreme Court in the Winters case." The trial court's decree in that case, which this court affirmed, enjoined the interference with a specified quantity of water presently diverted and used for the benefit of the Indians on the reservation. This was 1666 2/3 inches, but the decree contained a further provision to the effect that the Indians were to be protected...