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<br />. \ <br /> <br />-~ <br /> <br />"The purpose of this statute is to provide <br />for the distribution of the right to use the <br />water to the individual Indians. ***The right to <br />use the water prior to a distribution of it by the <br />Secretary of the Interior may be said to be inchoate <br />in the sense that the precise amount or extent of <br />the right assigned to an individual allottee would <br />be undetermined, but the right is vested in so far <br />as the existence of the right to use the 'water in <br />the allottee is concerned. This right is appurtenant <br />to the land upon which it is to be used by the allottee. <br />\Vhen the allottee became seized of fee simple title, <br />after the removal of the restrictions of the trust <br />patent, then a conveyance of the land, in the ab- <br />sence of a contrary intention, would operate to <br />convey the right to use the water as an appurtenance." <br /> <br />The question of the rights of white <Wlners of Indian allotment <br />lands to water was before the United States Supreme Court in the case <br />of U.S. v. Powers, 305 U.S. 527 59 S. Ct. 344 (for the lower court <br />decisions in the same liti~ation see U.S. v. Powers 16 F. Supp. 155 <br />and U.S. v. Powers, 94 F. (2d) 783). By the action the United States <br />sought to prevent diversion of water from streams in the Crow Indian <br />Reservation by the white owners of Indian allotments. We quote from <br />the opinion of the Coc~t (305 U.S. 532), <br /> <br />"Respondents maintain that under the Treaty of <br />1868 waters within the Reservation were reserved for <br />the equal benefit of tribal members (Winters v. United <br />States, 207 U. S. 564) and that when allotments of land <br />were duly made for exclusive use and thereafter conveyed <br />in fee, the right to use SOmB portion of tribal waters <br />essential to cultivation passed to the owners. <br /> <br />The respondents' claim to the extent stated is <br />well founded. <br /> <br />2109 <br /> <br />Manifestly the Treaty of 1868 contemplated ulti- <br />mate settlement by individual Indians upon designated <br />tracts where they could make homes with exclusive right <br />of cultivation for their support and with expectation <br />of ultimate complete ownerShip. Without water product- <br />ive cultivation has always been impOSSible. <br /> <br />We can find nothing in the statutes after 1868 <br />adequate to show Congressional intent to permit a1lottees <br />to be denied participation in the use of waters essential <br />to farming and home making. U possible, legislation <br />subsequent to the Treaty must be interpreted in harmony <br />with its plain purposes. <br /> <br />-11- <br />