OCR Text |
Show 259 v. Walker River Irrigation District, 104 F.2d 334 (9th Cir. 1939); Conrad Investing Co. v. United States, 161 Fed. 829 (9th Cir. 1908). In the Winters case the United States exercised its power to reserve water by a treaty; but the power itself stems from the United States' property rights in the water, not from the treaty power. Since the United States has the power to reserve water, by treaty, against appropriation under state law, there is no reason why it lacks the power to do so by statute or executive order. In the Walker River case, the Court of Appeals squarely held that the United States had reserved water for an Indian Reservation which had been created by executive order. It is unnecessary, for the purposes of this case, to explore the origin or limits of such power to reserve water against subsequent appropriators. The authorities cited above sufficiently sustain the validity of such a reservation to preserve the Indians' rights here under consideration. The question to be decided, therefore, as to each Indian Reservation which can divert water from the mainstream of the Colorado River is whether the United States exercised the power to reserve such water for the Reservation's future needs. As stated in the Walker River case, 104 F. 2d, at 336: "The power of the Government to reserve the waters and thus exempt them from subsequent appropriation by others is beyond debate.... The question is merely whether in this instance the power was exercised." The United States need not expressly reserve waters for the benefit of an Indian Reservation; an implied reservation is effective. Indeed, in all of the cases cited above, including Winters v. United States itself, the intent to reserve water was never explicitly stated at the time the Indian Reservation was established; rather that intent was implied from the circumstances surrounding the creation of the Reservation. In the present case I have found that the |
Source |
Original Report: State of Arizona, complainant v. State of California, Palo Verde Irrigation District, Imperial Irrigation District, Coachella Valley County Water District, Metropolitan Water District of Southern California, City of Los Angeles, California, City of San Diego, California, and County of San Diego, California |