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<br />Indians in the Territory of Montana and exempt them from
<br />appropriation under the laws of the state which that Territory
<br />became, This case also affected a prohibition against any subse-
<br />quent depletion, if such would deprive the Indians of sufficient
<br />water to irrigate the tribal lands.'
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<br />428 18 ROCKY MOUNTAIN LAW REVIEW
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<br />The doctrine of the Winters case, applying to reservation
<br />of water created by treaty or agreement, is applicable to reserva-
<br />tions created by executive order, In U.S. v, Walker River, Irri-
<br />gation District,' the court said ". . , The trial court thought
<br />Winters v, United States distinguishable, as being based on an
<br />agreement or treaty with the Indians. Here there was no treaty,
<br />It said that at the time the Walker River Reservation was set
<br />apart, the Pahutes were at war with the Whites, hence no agree-
<br />ment between them and the Government was possible,
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<br />(a) In the Winters case, as in this, the basic question for
<br />determination was one 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 treaty
<br />or agreement, A statute or an executive order setting apart the
<br />reservation may be equally indicative of the intent, While in
<br />the Winters case the court emphasized the treaty, there was in
<br />fact no express reservation of water to be found in that docu-
<br />ment, The intention had to be arrived at by taking account of
<br />the circumstances, the situation and needs of the Indians and the
<br />purpose for which the lands had been reserved, Further, it has
<br />been held in Skeem v, U,S,. that, even though the Indians ceded a
<br />portion of the reservation to the government, they still retained
<br />a reservation of water for use on that land as if it had remained
<br />a part of the reservation for as long a time as the Indians
<br />remained on the land.
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<br />But, though there is a reservation of water for the use of
<br />the Indians, the amount of water reserved presents a problem to
<br />be determined, In Winters v, U,S" only that amount reasonably
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<br />'Wet11n his treatise on Water Rtohts in the Western States (3d Ed. 1911)
<br />arrives at the conclusion that "the v1ew .of the Federal courts seems to be
<br />that In States recogniZing riparian rights, the rights 1ncldent to a military
<br />or Indian reservation seem slmnar to a rIparian owner, not limited to the
<br />amount In use by the reservation by actual appropriatIon at any specIfic
<br />time, and the Federal courts in theIr opinions do not E:::r.pressly dIstlngulsh
<br />between classes of states, but seem to lay down the above rule for all
<br />states."
<br />'104 F,(2d) 334, at 336 (C, C, A, 9th, 1939),
<br />'273 Fed, 93 (C, C, A, 9th, 1921).
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