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<br />I,' <br />! <br /> <br />f <br /> <br />. <br /> <br />. <br /> <br />Parenthetioa11y it should be said that the faot that a large <br />portion of the lands within the Colorado River basin were aoquired <br />from ,,;exioo, whioh reoognized no right of ocoupancy in the Indians. <br />does not change the rule of the Winters case. The attempt to disting- <br />uish the Winters oase on this ground was considered and rejected by the <br />Ninth CirouitCourt of Appeals in U.S. v. Walker River Irr. Dist.. supra. <br />In Northwestern Bands of Shoshone Indians v. U.S. supra, there is also a <br />disoussion of the Treaty of Guadalupe-Hidalgo with Mexioo. <br /> <br />A reservation of water would seem to exist whether or not there <br />is a treaty or agreemellt. Suoh was the holding in the Walker Irr.Dist. <br />oase, supra. It was there said (104 F. (2d) 335-336)1 <br /> <br />"The claim of the Government, asserted on behalf of the <br />Indians living on the reservation, is that, to the extent <br />neoessary to supply the irrigab1e lands, the waters of the <br />stream were reserved. The trial oourt deoided that the waters <br />were not reserved and that the rights of the United states to <br />their use, like the rights of other diverters. are to be <br />measured and adjudged in acoordanoe with the 100a1 laws and <br />oustoms governing appropriation. Henoe the rights deoreed to <br />the Government are made to date from the time of actual diver- <br />sion and use. <br /> <br />"When the lands were set apart for Indian purposes there <br />was no express reservation of the flow of the stream; but it <br />is the position of the Governrr~nt that there waS an implied <br />reservation' of the water. The contention is bottomed on the <br />holding to this effeot in Winters v. United States, 207 U.S. 564. <br />28 S. Ct. 207. 52 L. Ed. 3~ in what is olaimed to be a oognate <br />situation. The trial court thought Winters v. United States <br />distinguishable, as being based on an agreement or treaty with <br />the Indians. Here there was no treaty. It is said that at the <br />time the Walker River reservation was set apart. the Pahutes <br />were at war with the whites, henoe no agreement between them <br />and the Government was possible. <br /> <br />"(a) In the Winters oase, as in this, the basio question <br />for determination m-or;:e of intent-whether the waters of the <br />stream were intended to be reserved for the use of the Indians. <br />or whether the lands only were reserved. We see no reason to <br />believe that the intention to reserve need be evidenced by <br />treaty or agreement. A statute or an exeoutive order setting <br />apart the reservation may be equally indioative of the intent. <br />While in the Winters oase the court emphasized the treaty <br />there vIas in 1aCt nO' express reservation of water to be found <br />in that document. The intention had to be arrived at by taking <br />aooount of the oiroumstanoes, the situation and needs of the <br />Indians' and the purpose for which the lands had been reserved." <br /> <br />2114 <br /> <br />-6- <br />