United States v. Powers

• Decision Date: 09 January 1939
• Docket Number: No. 102,102
• Citation: 59 S.Ct. 344,305 U.S. 527,83 L.Ed. 330
• Parties: UNITED STATES v. POWERS et al
• Court: U.S. Supreme Court

305 U.S. 527

59 S.Ct. 344

83 L.Ed. 330

UNITED STATES

v POWERS et al.

No. 102.

Argued Nov. 18, 1938.

Decided Jan. 9, 1939.

Homer S. Cummings, Atty. Gen., and

Mr. C. W. Leaphart, of Missoula, Mont., for the United States.

Mr. T. H. Burke, of Billings, Mont., for respondents.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

By this proceeding (begun in 1934) the United States seek to prevent further taking of water from certain non-navigable streams within the Crow Indian Reservation. This water is essential to the cultivation of respondents' lands allotted more than twenty years ago to members of the tribe and presently held under properly acquired fee simple titles. The prayer of the bill is for a permanent injunction against 'maintaining or using said dams and ditches, as aforesaid, and from diverting by means of said dams and ditches or in any other manner any of the waters from Lodge Grass Creek or Little Big Horn River and their tributaries; * * *.'

The decree of the Circuit Court of Appeals dismissing the bill must be affirmed.

By Treaty of May 7, 1868, 15 Stat. 649, 650, 651, the United States set aside a large tract of arid land now within the State of Montana as a Reservation for the 'absolute and undisturbed used and occupation' of Crow Indians, and they undertook to make their permanent homes thereon. It provides that whenever an individual Indian desires 'to commence farming' he may select land, under stated conditions, which thereupon shall 'cease to be held in common, but the same 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.' Also—'The President may at any time order a survey of the reservation, and, when so surveyed, Congress shall pro- vide for protecting the rights of settlers in their improvements, and may fix the character of the title held by each. * * * When the head of a family or lodge shall have selected lands and received his certificate as above directed, and the agent shall be satisfied that he intends in good faith to commence cultivating the soil for a living, he shall be entitled to receive seeds and agricultural implements for the first year in value one hundred dollars, and for each succeeding year he shall continue to farm, for a period of three years more, he shall be entitled to receive seeds and implements as aforesaid in value twenty-five dollars per annum.' Article 6.

The treaty contains no definite provision concerning approprionment or use of waters. Although the lands are arid a considerable area is susceptible of cultivation under irrigation.

The Act of Congress approved April 11, 1882, Ch. 74, 22 Stat. 42, 43, refers to 'an agreement for the sale to the United States (by the Crows) of a portion of their said reservation, and for their settlement upon lands in severalty,' etc. In return the United States agreed to survey the remaining lands and divide them among members of the tribe; also 'to issue patents to us respectively, therefor, so soon as the necessary laws are passed by Congress.' Section 2—'That the Secretary of the Interior be, and he is hereby, authorized to cause to be surveyed a sufficient quantity of land on the Crow Reservation to secure the settlement in severalty of said Indians as provided in said agreement, and upon the completion of said survey he shall cause allotments of land to be made to each and all of the Indians of said Crow tribe in quantity and character as mentioned and set forth in the agreement above named, and upon the approval of said allotments by the Secretary of the Interior he shall cause patents to issue to each and every allottee for the lands so allotted, with the same considerations, restrictions, and limitations mentioned therein as are provided in said agreement.'

The Act of February 8, 1887, Ch. 119, 24 Stat. 388, 389, 390, provides for allotments in severalty to Indians upon any reservation created for their use whenever in the President's opinion any part is advantageous for agricultural and grazing purposes. And it directs that after allotments are approved the Secretary of the Interior shall issue patents declaring the United States will hold the land for twenty-five years in trust and thereafter 'will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever * * *.' § 25 U.S.C.A. § 348. Section 7—'In cases where the use of water for irrigation is necessary to render the lands within any Indian reservation available for agricultural purposes, the Secretary of the Interior is authorized to prescribe such rules and regulations as he may deem necessary to secure a just and equal distribution thereof among the Indians residing upon any such reservations; and no other appropriation or grant of water by any riparian proprietor shall be authorized or permitted to the damage of any other riparian proprietor.' 25 U.S.C.A. § 381.

The Act of March 3, 1891, Ch. 543, 26 Stat. 989, 1040, mentions another conveyance by the Crows to the United States and appropriates $200,000 to be expended under direction of the Secretary of the Interior for irrigation in the valleys of the Big Horn and Little Big Horn Rivers and on Pryor Creek, within the diminished Reservation.

The Act of May 8, 1906, Ch. 2348, 34 Stat. 182, 183, authorizes the Secretary of the Interior to issue to Indian allottees patents in fee simple 'and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed * * *.' 25 U.S.C.A. § 349. Also—...