The river press. [volume] (Fort Benton, Mont.) 1880-current, 1907-08-14
WEDNESDAY. AUGUST IA, 1907.
DlsCOuRAGiMG SETTLEMENT.

which denies the right OF the Conrad
Investment company to use the waters
of Birch creek to irrigate land in
Teton county, is in line with the deci.
sion in the Henry Winters case, which
injuriously affected a large number Of
settlers in the Milk river valley. In
each case it is held that the Indians
living on reservations adjoining the
streams have q prior right to all the
water they may need. While these
decisions may be Q correct interpreta-
tion Of the law, their effect will dis.
cour age settlement in the localities at.
fected.
In each of the cases ia which these
decisions we're rendered, canals and
bitches had been constructed by set
tiers at large expense before it was
discovered th at their right to use the
water was in jeopardy. The matter
was taken ia hand by federal officials
and suits instituted in the courts, the
decision in each case being as above
stated.
1t 10 announced from Washington
that government attorneys are prepar.
ing a brief ia the Winters case, which
will be presented TO the United States
supreme court at the commencement of
the October term, and which sets forth
the alleged rights Of the Indians in
the matter. A special dispatch to the
Butte Miner gives this statement Of
the Indians side OF the proposition:
On the part Of the United States, in
behalf Of the Indians, it is maintained
that the ~so.called "Californis doc
trine," and not the doctrine OF ''prior
appropriation" at the time the agree.
ment with the Indians became effect
i've, prevailed in Montana, and ever
since has prevailed there. Under the
California doctrine it is commended
that while lands are public lands"
belonging either to the United States
or q state, the water Of streams flow.
ing through the lands may be appro.
priated and used for beneficial pur-
poses, the first in time being first in
right, and subsequent purchasers of
lands riparian to such sire &C.
quire their lands subject to the prior
appropriation and use Of the waters.
The rights to the lands 10 the reserva.
ton having been secured to the In-
dians by the terms of the agreement,
their right to the use of water, it is
contended, was equally secured and is
equally sacred.
1t is maintained also, on behalf of
the Indians, that the right to the use
Of the water involved, which wac re.
served TO them by the agreement in
question, cannot be adversely affected
by any local law, usage OF custom Of
either the territory or state OF Mon.
tana. 1t is commended that the rights
OF the Indians were neither lost o
adversely affected by their failure to
comply with the requirements of the
Montana Territorial statue OF March
II, 1885, congress-, in ratifying the
agreement with the Indians, having
declared in effect that the reserv alton
of the waters in controversy was
necessary for the beneficial uses OF the
government property therefore, in
the absence OF specific authority from
congress, the legislature OF q territory
and OF . state is without power 10 en-.
act any law which would disturb or
adversely affect any right guaranteed
to the Indians by the agreement.
Should the United States supreme
court affirm the decisions OF the lower
courts and sustain the conventions OF
the government, the irrigators OF the
state of Montana will have TO face in
the future an application OF the "Cali.
fornia doctrine" or modified form OF
the doctrine of riparian rights t o the
use OF the waters OF flowing stream
for irrig alton purposes.