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OUIUH 1957] THE PELTON DECISION 247 were in no sense material, and their descendants, through their guard- ian, the United States, could assert, nearly one hundred years later, such rights as they might deem necessary for the support of an irriga- tion economy-and all this without consideration of valuable property rights in water acquired by bona fide homesteaders on the public lands ceded by the Indians and opened up by the government for settlement under the homestead and other land laws. The Court of Appeals had short shrift for an agreement entered into in apparent good faith in the year 1908 between the Indian Service and the white settlers, and duly approved by the first assistant secretary of the Interior, which pro- vided for the use of 25 per cent of the historical flow of the creek on the reservation and 75 per cent for the white settlers. It was held that this agreement had been made without authority and so was of no effect. The Pelton case was cited with approval as demonstrating that the states have no power to dispose of rights reserved under treaties.87 Thus, under the decision the white settlers were left stripped of their rights which had been duly acquired from the state in accordance with the scheme of land disposition set out in this article. It must be con- ceded that an effort was made to predicate the rights of the United States on certain older cases dealing with Indian reservations. But those cases, as Judge Fee had demonstrated in the district court, in- volved, in every instance, a situation where active irrigation develop- ment on the Indian reservation preceded the appropriations of the ad- verse claimants.s8 The evidence as to irrigation use of the waters of Ahtanum Creek by the Indians in 1855 or prior thereto was entirely lacking. Indeed, it was many years later before any interest in irriga- tion was shown by the Indians. (2) The Hawthorne case. During the late war, the Navy officials at the Naval Ammunition Depot, near Hawthorne, Nevada, had six wells drilled on the military reservation to provide for supplemental water for the base. Pursuant to the laws of Nevada, applications to appropri- ate water from these wells were duly filed and permits to so appropriate were granted by the state engineer. The drilling was completed and, after some delay, the Navy was prepared in 1955 to file final proofs of 87 I d. at 328. 88 Winters v. Uniteo States, 207 U.S. 564 (1908); United States v. Walker Irrigation Dist., 104 F.2d 334 (9th Cir. 1939). In these and other cases, cited to show purported reservation of waters on Indian reservations, there was a color- able showing of the use of sl1ch water at the time the reservation was created and prior to the assertion of conflicting rights. In a footnote, Judge Fee remarks that ample water is available in the Ahtanum area if Congress is willing to spend the necessary funds to get the water to the reservation area.. but, "even if the legisla- tive body is 110t inclined to make such an appropriation in justice to the Yakima Indians, it is no ground for robbing the white pioneers by rationalization from modern conditions to read property reservations into a Treaty of 1855." 124 F. Supp. at 831, n. 28.