United States v. Hibner

• Decision Date: 06 August 1928
• Docket Number: No. 478.,478.
• Citation: 27 F.2d 909
• Parties: UNITED STATES ex rel. Ray, U. S. Atty., v. HIBNER et al.
• Court: U.S. District Court — District of Idaho

27 F.2d 909 (1928)

UNITED STATES ex rel. Ray, U. S. Atty., v. HIBNER et al.

No. 478.

District Court, D. Idaho, E. D.

August 6, 1928.

H. E. Ray, U. S. Dist. Atty., of Boise, Idaho, for plaintiff.

R. W. Jones, of Pocatello, Idaho, George H. Smith, of Salt Lake City, Utah, H. B. Thompson, J. H. McEvers, Merrill & Merrill, H. J. Swanson, Holden & Coffin, and Isaac McDougall, all of Pocatello, Idaho, H. C. McDougall, of Boise, Idaho, and Jones, Pomeroy & Jones, of Pocatello, Idaho, for defendants.

CAVANAH, District Judge.

The United States invokes the jurisdiction of this court to hear and determine the rights of Indian wards (and their heirs) of the government to the use of the waters of Toponce creek, in Bannock county, Idaho, for irrigation and domestic purposes, upon the ground that such rights were granted to the Indians under the treaty made between it and them, known as the "Ft. Bridger Treaty," of February 16, 1869 (15 Stat. 673).

The complaint sets forth 22 allotments of land granted by the government to the Indians, which were formerly included in the Ft. Hall Indian reservation, and thereby seeks a decree granting to the Indians the right to divert one miner's inch of water per acre from the creek, with a priority of February 16, 1869, the date of the treaty referred to. The lands included in these allotments, and also those embraced in the area claimed by the defendants, are arid in character and require artificial application of water by means of irrigation to produce crops thereon. Toponce creek is the only available supply of water by which the allotments can be irrigated. In 1921 an action was brought in the state district court for the purpose of adjudicating the right to use of the waters of Portneuf river and is tributaries, and in the decree there entered the waters of Toponce creek, a tributary of Portneuf river, was decreed to those who were parties thereto. Neither were the United States nor any of its Indian wards made parties to that suit, and their rights were not therein determined. When the issues in the present case were being formed, this court held that the decree of the state district court, which was then asserted to be a final one, was res adjudicata as to the parties in that suit, and thereafter the parties here stipulated that, as there is some probability of an appeal being taken from that decree to the Supreme Court of the state, the final decree there shall be binding upon the parties here who were parties in that case, excepting as to those who may have purchased allotments from the Indians. So the issues here are narrowed to the question of determining the priority and amount of water to which the Indian lands are entitled and those parties who have succeeded to the Indian allotments.

Rights of Indian Lands.

The contention of the government, as guardian for the Indian wards of the land allotted to them, is that, under the treaties and acts relating to the reservation, its wards have a superior right to the stream, which does not depend upon occupancy or possession of their lands, and which the defendants could not defeat or impair by first appropriating the water and actually applying it to their beneficial use, and that the Indian lands are entitled to a continuous flow through the entire year of a sufficient amount of water from Toponce creek for domestic and irrigation purposes for such portion of their lands as are susceptible to irrigation, regardless of whether or not they have placed under cultivation and actually irrigated all of such lands. While, upon the other hand, those defendants who are not successors to the Indian lands contend that the Indians are only entitled to such amount of water as has actually been applied to a beneficial use and of priority of date of such application. In other words, the rule of law relating to appropriations of water made by the white man should apply equally to Indian lands. The disposal of this interesting question requires the inquiry as to what are the rights to the use of water for Indian lands allotted under the treaties and acts of Congress relating to the reservation.

Going back to the time when Idaho was a territory, and when the treaty of 1869 was entered into, we find that the government had the power to reserve the waters flowing through the territories and exempt them from appropriation under the state laws. U. S. v. Rio Grande Ditch & Irrigation Co., 174 U. S. 690, 19 S. Ct. 770, 43 L. Ed. 1136; U. S. v. Winans, 198 U. S. 371, 25 S. Ct. 662, 49 L. Ed. 1089. That power to reserve the waters of these Indians was exercised by the government in these treaties, and was to be continued through years by them by means of their old habits. Winters v. United States, 207 U. S. 564, 28 S. Ct. 207, 52 L. Ed. 340. When considering treaties with Indians and acts of Congress relating to their rights, we are confronted with the liberal application of the wholesome principle that grants by them should be regarded strictissimi juris, and all uncertainties be resolved in their favor. The provisions of the treaties which appear to be of...