East Oregonian : E.O. (Pendleton, OR) 1888-current, 1911-11-08
JOHN N'COURT WRITES
OF RESERVATION SUIT


OF RESERVATION SUIT
Continues from page one)
have been taken \ pleading called
Suggestion was fled by me h-s,
spring n the case between these par-
te< in The circuit court there. which
fully and clearly sets forth the claims
NJ tne government and the Indians
Recently when a case between the
same parties came up on demurrer in
the federal court, l happened in the
court room Wh Ie argument vas IN
progress This vas the first notice I
had % such a suit notified the
cgurl that / desired 70 be heard in
behalf q the government and the In
d-sns when the case comes up on its
merits.
The Indian rights were fully pre-
sentei and preserved before the board
OF control 50 far as possible. The
proceedings before the board Of con-
troll were Instituted by me afte- con-
siderable opposition. on September
lsJ. Nj Morton. representing my Of
fee appeared before The board a,
Psndleton. requesting that taking Of
testimony begin al an early date. bu,
he was opposed by virtually every
other water user on the river. This
opposition resulted in postponing the
commencement Of taking testimony
until May next
You seem 10 feel that I should take
Up the Caldwell fight against Byers
A. hereinbef0re pointed out. neither
the Indians nor the government have
engaged 70 protect or supply any OF
The rights claimed by Caldwell in his
litigation. He i claiming under the
provisions Of the treaty with the In
dams Byers Is claiming under a stat
uJe passed subsequently,; both claim
that the government is bound 10 rec
oguize and protect their rights. As
a matter Of fact. however. the govern
rnent + not concerned with the claims
Cf either except insofar as hey may
affect the rights Of the Indians or OF
the government itself Adequate
steps have been taken 10 protect the
latter.
To illustrate this point: Suppose
you own twenty acres along a river.
you have never attempted TO irrigate
this land but have raised only such
crops thereon as would grow without
irrigation. You lease L 10 3 for cash
rent for three years without any pro-
vision as T. what 3 shall raise or how
he shall cultivate or handle the land.
As soon as B gets the land h., takes
ouc a ditch from the river and COM
mences to irrigate the land. The wa
ter B takes out conflicts with the
claims Of c. a lower proprietor c
sues 3 and attempts to enjo'n him
from using the water. Manifeslly,
you would not be under any obliga-
tion to defend 3 in his litigation. And
further. suppose c has been using wa
ter for some time and has secured a
right Of way from you over other
lands belonging TO you Tor carrying
the water 10 h's land. This would fur
ther abs0lve YOU from mixing up in
the suppOsitious litigation. II you
got into it at all it would not be for
the assertion Of the claims Of either
Of the parties. but to protect your own
ultimate rights in the property or
subject matter Of the litigation In
the supposed case you are given the
place OF the government. Of Cald-
well and c OF Byers.
You should bear in mind that except
two y three, no Indians have ever at
tempted 10 irrigate any land along
the river and that none il now at
tempting TO irrigate his land Those
who are irrigating have not been mo-
Tested. The government has suffered
no opposition to its use Of water
Therefore, no occasion exists for
bringing any suit. Mr.. Swartzlander
is on the ground. He is active and
will see that their rights are not in
vaded
Pendleton and Umatilla county are
probably more interested in this dues-
tion than you are aware. Should the
rights Of the Indians be recognized 10
the full extent Of the rule laid down
in the Montana cases in the supreme
court and in this federal circuit.
very serious condition would exist.
Those cases assert the doctrine that
there is reserved to the Indians every
thing within the boundary Of the re-
serve that can be utilized for their ad-
vancement. prosperity and happiness.
This includes water for irrigation or
other use and prevents the approprla-
ton of such water or the use thereof
by others. 1t also preserves the wa
ter to the Indian until such time as
he gets ready TO use it, whether it be
five or one hundred years hence. In
the meantime, ntone can acquire any
right to the use Of water as against
the Indian
In the arid or semi-arid portions
Of the west, Indian reservations are
always situated upon or at the source