United States v. Ahtanum Irr. Dist.

• Decision Date: 18 January 1954
• Docket Number: No. 312.,312.
• Citation: 124 F. Supp. 818
• Court: U.S. District Court — District of Washington
• Parties: UNITED STATES v. AHTANUM IRR. DIST. et al.

124 F. Supp. 818

UNITED STATES v. AHTANUM IRR. DIST. et al.

No. 312.

United States District Court E. D. Washington, S. D.

March 7, 1953.

Amended January 18, 1954.

Supplemental Opinion January 18, 1954.

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Harvey Erickson, U. S. Atty., Spokane, Wash., William H. Veeder, Sp. Asst. to Atty. Gen., Geraint Humphrey, Chief, Irrigation Counsel, U. S. Indian Service, Los Angeles, Cal., Edward G. Swindell, Jr., Regional Counsel, Bureau of Indian Affairs, Portland, Ore., for plaintiff.

Henry R. Newton, Spokane, Wash., Brown, Hawkins & Olson, Olson & Palmer, V. O. Nichoson, Douglas A. Wilson, L. B. Vincent, Lee C. Delle, John H. Lynch, George E. Clark, Yakima, Wash., Helsell, Paul, Fetterman, Todd & Hokanson, Seattle, Wash., Kenneth R. L. Simmons, Billings, Mont., Emory, Howe, Davis & Riese, Seattle, Wash., Morthland & Morthland, Velikanje & Velikanje, M. C. Delle, Ronald R. Hull, Yakima, Wash., Little, Leader, LeSourd & Palmer, Graves, Kizer & Graves, Seattle, Wash., Chalmer G. Walter, Yakima, Wash., Cannon, McKevitt & Fraser, Spokane, Wash., Wm. J. O'Hear, New York City, for defendants.

JAMES ALGER FEE, District Judge.

By the Treaty of 1855, the Yakima Indians ceded to the United States all their rights in a larger expanse now included in the State of Washington and reserved a smaller area for their own use. For them the United States became trustee of this land. The north boundary of the reservation ran along Ahtanum Creek, but did not include the stream.¹ The bulk of the water there comes from a branch which has its source upon what were then by that cession public lands of the United States. During the ninety-seven years since the treaty, numerous persons, defendants here, have acquired lands north of the reservation by patent from the United States. Both before and after the issuance of patents, these owners and their predecessors made beneficial use of the waters of the Ahtanum upon various of these parcels of land and now possess water rights appurtenant thereto. After 1873, there was considerable water appropriated therefrom by the whites, and some was appropriated for Indian lands. Some few years later, Washington was admitted as a state, 25 Stat. 676, 26 Stat. 1552. After the admission, appropriations continued both north and south of the Ahtanum until more was claimed than flowed therein at low water stage. When governmental agencies finally became impressed with the opportunity of reclamation of western lands, under federal control, this feature led to conflict.

However, in 1908, an agreement was made by government agents and representatives of white owners dividing the water between the reservation and the lands beyond.² Still later, at the suggestion of the government, the rights of the users upon lands off the reservation were fully adjudicated by the state courts. The Indian lands involved had been allotted in severalty and were held individually by trust patent, and the Indian nation, as such, ceased to have rights therein. A great number of these allotments have been patented in fee and are now owned by whites. Water is furnished to such lands by a ditch originally constructed to carry the share of the waters of the Ahtanum set aside for the Indians by the agreement above referred to. In 1947, the government brought this proceeding to obtain the entire flow of the Ahtanum for the Indians. The whites who claim waters north of the boundary are made defendants, as well as the successors of the Indian allottees on the reservation. The claim of the government set up by the complaint is that by the treaty there was reserved for the Yakima Indian nation the right to all the water of the stream for use upon lands included in the reservation.

When the United States, by the Act of July 26, 1866, 14 Stat. 251, and subsequent legislation, freed the waters flowing unappropriated over public lands in order to allow ownership to be acquired therein by beneficial use, the Territorial Legislature, differentiating the conditions prevailing then in Yakima County, proclaimed that the custom of appropriation would be the source of the title to water rights in the area thereafter.³ By executive and congressional action, based upon the consent of the people in the area, the State of Washington was thereafter admitted to the Union. Following the precedent set by the territorial lawmakers, the State has adopted, by legislation of its people, by acts of its legislature and by decisions of its courts, and has promulgated the law within its boundaries. In judicial proceedings brought regularly in its courts, the State has continuously exercised jurisdiction over waters so appropriated in Yakima County, where the reservation and the other lands lie,⁴ with the exception of the water allocated to the Indians by the agreement of 1908.

The State, with the consent of all concerned, has appeared as intervenor in this proceeding to protect its rights and prerogatives as the local sovereign and as parens patriae in behalf of the individual patentees north of the boundary, who are its citizens and who claim property rights under its laws and under the decrees of its courts.

This case then, at the outset, presents a highly important problem as to the authority of the federal government over property rights granted by it to individuals within the confines of a state admitted upon equal footing with the thirteen original states. As a preliminary to a determination of these questions, it must be discovered how far the claims of the United States impinge upon the sovereignty of the State of Washington, to which was reserved "the powers not delegated to the United States by the Constitution, nor prohibited" by the fundamental law "to the States respectively".⁵

The division of powers between the central government and the states is fundamental and is firmly established by the Constitution. The authority of the federal government is limited by the words of that document and is by definition either express or implied by necessity from the fundamental text. But in time of war, in the interest of self-preservation, these guaranties may necessarily be eroded in the rush of events. Nevertheless, it is essential to preserve the balance of local and central governments thus established. It is as much the duty of this Court to preserve states' rights as to confirm in the federal government the necessary authority in an existing emergency.

In the expanse of water law, the rights of each state to control its domestic economy have been expressly recognized. The property interests of individuals established under the theory of water rights current by the interpretation of the particular state have been treated as vested rights. At the culmination of a series of cases which pointed the way, the Supreme Court of the United States, in California-Oregon Power Co. v. Beaver-Portland Cement Company, 295 U.S. 142, 55 S.Ct. 725, 79 L.Ed. 1356, affirmed a decision made by the writer of this opinion in the federal District Court for Oregon, 9 Cir., 73 F.2d 555, and gave final confirmation of the doctrine that the individual state, by legislation and decision, has absolute power to lay down its own peculiar rule of property rights in waters within its boundaries. These rights of the state, the United States recognized when the State of Washington was admitted, and no reservation was made of the rights to water or control thereof, notwithstanding thirty years had then passed since the proclamation of the treaty. There is then no residual power of the federal government to reclaim or recapture water rights which it has granted to individuals and which the State has recognized since its admission to the Union. It is conceded in this case that there are no paramount rights of the government in the sense that exercise of uncontrolled sovereign power is involved.

But, more important still, the act of admission was a grant of jurisdiction. The gift of the power to hear and decide, bestowed by the sovereign people of this country through their representatives in Congress and the executive department, must be weighed in the light of precedents set up in the dusk of Anglo-Saxon law. But we need not evoke dim memories of grants of jurisdiction such as soc and sac, infangthief and utfangthief, in order to decide this problem. Questions of jurisdiction mark the boundaries of power between sovereignties. If the courts fail to uphold the reservation of power by the Tenth Amendment — the rights of the states against federal administrative aggression — the essential structure of our balanced authorities will be destroyed.

With the act of admission, there was ceded to the State of Washington jurisdiction to adjudicate the rights of persons as to property within its boundaries.⁶ The federal courts for this purpose are courts of the state in which they sit. Once a property right in a res has been adjudicated under this grant of jurisdiction, the decree is binding upon all the world, including the government.⁷

On this primary branch of the controversy, therefore, the Court holds that the State of Washington has had, since its admission, sovereign power to promulgate by legislation and decisions of its courts a rule of waters for property within its boundaries. The United States had no sovereign powers to change or amend such a law of waters. While the United States had power upon its own lands or lands held in trust to make rules which were different from those which had force in the rest of the state, the government had no power to impose such rules upon property outside the reservation. The municipal law of the state was binding not only upon all the other lands and waters of the area outside the reservation, but specifically upon all patented lands and owners thereof within its limits.⁸

But, if we lay aside these pretensions of continuing sovereignty upon the...