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Memorial of the Yakima tribe of Indians protesting against the passage of Senate bill 6693, relating to the distribution of water for irrigation purposes .. (Volume 2) online

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62d CaNGRESS }

3d Session f



HOUSE OF REPRESENTATIVES



f Document
I No. 1304



MEMORIAL



OF THE



YAKIMA TRIBE OF INDIANS



PROTESTING AGAINST THE PASSAGE

OF SENATE BILL G693, RELATING TO

THE DISTRIBUTION OF WATER FOR

IRRIGATION PURPOSES




PRESENTED BY MR. STEPHENS OF TEXAS
January 25, 1913.— Ordered to be printed



WASHINGTON

GOVERNMENT PRINTING OFFICE

1913






Congress of the United States,

In the House of Representatives,

January 25, 1913.
Ordered, That a memorial of the Yakima Tribe of Indians against
the passage of S. 6693, relating to the distribution of water for
irrigation purposes, be printed as a House document.
Attest :

South Trimble, Clerk.
2



D. OF D.
FED I 1913



A'^



MEMORIAL OF THE YAKIMA TRIBE OF INDIANS.



Yakima Indian Reservation, Wash.,

June 8, 1912.
Hon. John H. Stephens,

Chairman Committee on Indian Affairs,

House of Rep7'esentatives, Washington^ D. C.

Our Friend: In the name of our tribe of Yakima Indians we
protest against Senate bill 0693. It is grossly unjust, depriving us
of Avater rights which are ours by all that is equity between man
and man.

Under date April 6, 1911, we petition Indian commissioner to
build Wapato project under terms we think just. We want you to
see this petition. Senator Jones has copy of this petition, and we
[are] sorry he did not make his bill right.'

We have two canals on reservation, one built 1896-97, this other
built 1903. This last one is now called " Wapato project." Both
are built with our tribal money.

In 1906 Secretaiy Hitchcock divide water in Yakima River and
give us 147 cubic feet and give Sunnj^side 650 feet, leaving several
miles of our new ditch Avy and not enough to water good the 20,000
acres watered by our ditches.

We ask if this is right? ^

Our riparian rights are older than those of the white man. This
reservation we were permitted to hold when the Government took
all our other land. Water is life and belongs to the earth. Our land
is poor without water. The Government has set still and let our
water be stolen, and now the Eeclamation Service cinch us tight if
Jones bill 6693 become law. The Reclamation Service talk two
ways; it said water under Tieton project only cost $60 or $63 acre,
but it cost $93 acre. We understand this is true with other projects.
Poor people bought land for little homes under Tieton Canal, and
now have to sell cheap or loose all because of high cost water. This
will be same with Indian if Jones bill is made law. "N^Tiite man is
better farmer than Indian. Indian onW understands horses and
cattle. Reclamation make high cost water, high cost drainage;
Indian can not pay, and land be sold from him. This is what white
man want.

This Jones bill 6693 is blind talk. It says give Indian free storage
water for 32.000 acres. This is not true. As we tell you we have
30,000 acres now watered, and this 30,000 are included in the 32,000
acres. This leaves only 2,000 acres free storage water. This is not
right. It is stealing from the poor Indian. We do not want this
done. The water rights to this 20,000 belong to the land because used
long time and it can not be taken away. We own half of Yakima
River and all water in reservation, but we are not protected in any
rights.



4 MEMORIAL OP THE YAKIMA TRIBE OF INDIANS.

On Ahtaniim Eiver divide of our reservation where white man
have most land, the Secretary of the Interior gives three-fourths of
water to white man. Now, when red man have most land to water,
he gives nearly all water to white man. This was done and we
could not help ourselves. We want only what is right. God wants
the white man and the red man to live in peace. We try hard to
do right and obey the white man's laws. We want you to help us.

Our friend in Congress introduced "House joint resolution 250"
for Attorney Generaf to settle our w^ater rights. This is good, but
Secretary Interior hold up this resolution and try to make Jones
bill 6693 law, so Eeclamation will own all Avater and have us flat.
W^e w^ant you to stop Jones bill and make law^ the resolution 250.
Then Attorney General will settle all justly. If this is not done we
are bringing suit in United States court to settle our water rights.
We want the white man to be honest and treat us right. Our words
are done.

Our friend, help us. We want to hear from you.
Your friends,

(Signed) We-yal-lup Wa-ya-ci-ka (his x mark),

Chief Judge of the Yakima Tribal Courts^

Clan Chief of the Ahtanum.

(Signed) Louis Mann,

Corresjjonding Secretary of the [Indianl Councils.



Washington, D. C., January 21^^ WIS.
Hon. John H. Stephens,

Chairman Committee on Indian Affairs.,

House of Representatives.

Sir : We request your support of the proposition to secure legisla-
tion directing the Attorney General of the United States to insti-
tute suit to determine the right of the Yakima Tribe of Indians,
Washington, to the use of the water of Yakima River and Ahtanum
Creek, Wash., for irrigation of their lands.

The Yakima Indians have appealed to your committee to favor
legislation to adjudicate their right to w^ater for irrigation, and the
Attorney General is friendly to their wishes, although he defers to
the Secretary of the Interior, who has immediate charge of the
Indians. The Secretary of the Interior made a report to your com-
mittee on June 13, 1012 in considering House joint resolution 250,
and refused to accede to the requests of the Indians, by limiting a free
water right to 20 acres of irrigable land, less than one-half of which
is a prior right to the running river water.

The title of the Yakima Indians to the reservation in question was
secured by treaty June 9, 1855 (12 Stat., 951), ratified by the Sen-
ate March 8, 1859, and proclaimed April 18, 1859.

The reservation was intended to be the permanent home of these
Indians, as plainly stated in the treaty.

The bill (S. 0093) and the amendment to the Indian appropriation
act, introduced by Senator Jones on January 21, 1913, both contem-
plate giving these Indians 400 cubic feet ol water per second, esti-
mated to be sufficient for 32,000 acres of land. This proposed grant



MEMORIAL OF THE YAKIMA TRIBE OF INDIANS. 5

of water includes 147 second-feet of running river water heretofore
reserved for the Yakima lands, while it is proposed to reserve the re-
maining 253 second-feet out of the stored waters, as authorized by the
legislation now pending.

The Yakima Indians have not slept upon their rights in this mat-
ter. On February 19, 1903, the agent in charge of the Yakimas filed
notice of appropriation of water by the Indians for 1,000 second-
feet, which is believed to be less than one-half of the low-water flow
of the Yakima River.

The Yakimas claim they are now using water for 30,000 acres,
equivalent to 375 cubic feet per second. It seems evident that if the
Indians had not been retarded by the Reclamation Service and lim-
ited by the Government in the recent past, they would no doubt at
this time be making beneficial use of twice that amount of water.
The Yakimas have been reduced almost to a starvation basis, if we
are correctly informed, Avhile at the same time a proposition is sub-
mitted to them by the Government which is intended to limit the
water suppl}^, and to which they will not consent.

It seems reasonable that by reason of prior appropriation and
riparian right the Yakimas are entitled to about 1.000 culiic feet of
water per second, being 600 cubic feet more than the pending legis-
lation proposes to grant to them free of storage charges. It has
been estimated that 1 cubic foot of water per second is worth $8,000.
so that the loss of 600 cubic feet per second would amount to
$4,800,000, which w^ill represent the loss in water right to the Yaki-
mas in event the pending legislation is adopted. Furthermore, it is
proposed to limit the Yakimas to 147 second-feet per second of run-
ning river water, the balance of 400 second-feet proposed by the
legislation to be from stored water, which right is secondary to the
right to the running water of the streams.

The Yakima Indians are opposing the pending legislation limiting
their free water right to 400 cubic feet per second of time, and plead-
ing that their right to the waters within and bordering upon their
reservation shall not be determined by arbitrary rule of the Secretarj'^
of the Interior, and that their claim to an increased amount of water
shall be determined in an orderly manner by litigation in the courts
of the land. We submit that the Indians are entitled to have their
right adjudicated by due process of law, which has been stated to be —

An ordei'ly proceecliiii; adapted to the nature of the ease, in which the citizen
has an opportunity to l)e heard and to defend, enforce, and protect liis rights.
(Cyc, vol. S, p. ldS2.)

The constitutional limitations upon the Federal Govermiient extend
to all proceedings, Avhether legislative, judicial, administrative, or
executive (ibid., p. 1083) ; and this right extends to all natural per-
sons (ibid., pp. 1085-1085), and Indians are included in this consti-
tutional guaranty. (Choate v. Trapp, 224 U. S., 685.)

The highest courts of the land support the contentions of the
Yakimas in this matter. The United States Supreme Court, in 1908,
affinned the decision of the United States circuit court of appeals in
a case affecting water rights within Fort Belknaj) Indian Reserva-
tion, Mont., and said :

In conclusion, we are of opinion that the court helow did not err in holding
that "when the Indians made the treaty granting rights to the United States
thev reserved the right to use the waters of Milk River, at least to an extent



6 MEMORIAL OF THE YAKIMA TRIBE OF INDIANS.

reasonably necessary to irrigate their lands. The right so reserved continues
to exist against the United States and its grantees, as well as against the
State and its grantees. (Winter v. U. S., 207 U. S., 564.)

The United States circuit court of appeals, in 1908, confirmed an
opinion of the lower court which we commend to your thoughtful
consideration :

Manifestly the Indians can not be expected to acquire water rights to any
considerable extent through prior appropriation, because they are not far
enough advanced in the art of agriculture to reduce the water to a continuous
use, and the water of the public streams that they shall finally need depends
largely upon their progress in this art. The Government, however, being their
quard'lan has a most important trust to perform in this relation — that is, so to
conserve the waters of such streams as traverse or border the reserve as to
supply the Indians fully in their probable or, I may say, even possible future
needs when they have ultimately secured their allotments In severalty. (Con-
rad Investment Co., 161 Fed., 829.)

It is the policy of the Government to allot each Indian sufficient
land upon which a home may be established. We find that the
Eeclamation Service determines 40 acres as a minimum " farm unit "
for settlers under the Sunnyside and Tieton units, which embrace
lands similar to those belonging to the Yakima Indians which it is
proposed to irrrigate (Tenth Annual Report Reclamation Service),
and water sufficient for 160 acres will be granted private landowners.
The Yakima Indians are limited to 20 acres, with water right from
their own reservation, notwithstanding a vested right by prior
appropriation and riparian right.

There is a growing sentiment that Indians should have the benefit
of protection by the courts. The Mohonk conference of friends of
the Indian, held at Mohonk Lake, N. Y., October 25, 1912, adopted
as a part of its platform a clause which reads:

In providing water for irrigation of the lands of the Yakima and other
Indian tribes the Government is in duty bound to protect their vested and
treaty rights to as full an extent as would be done in cases between citizens.
We recommend that, whenever practicable, proceedings should be instituted by
the Government to procure a judicial deternunation of the Indian rights.

We trust that your committee will make a thorough investigation
of the rights of the Yakima Indians pertaining to the irrigation of
their lands and conclude that these rights should receive considera-
tion by the court, unless it should be conceded that each allottee shall
be entitled to not less than water sufficient for 40 acres of his allot-
ment.

Very respectfully submitted.

S. M. Brosius,
Agent Indian Rights Association.



Department or Justice,

Wa^sklngfon, D. C, April IS, 1912.
Hon. J. H. Stephens,

Chairman Committee on Indian Affairs.,

House of Representatives.

Sir: T have your letter of the 9th instant in which you request a

report from tliis department upon House joint resolution 250, for

the protection of the water rights of the Pima and Yakima Indians.

In reply I will say, in the first place, that the resolution appears

to be unnecessary. " The Attorney General, I believe, is already



MEMORIAL OF THE YAKIMA TRIBE OF INDIANS. I

vested with ample authority to institute and niaintaiii suits such as
those to which the resolution refers; and this department is at all
times read}', and indeed eager, to protect the interests of the Indians,
so far as the limited funds placed at its disposal will permit it to
do so.

The needs of the Pima and Yakima Indians with respect to the
adjudication of their water rights have for some time past been
under consideration here and by the Interior Department, and this
department stands ready to act promptly, so soon as it shall have
received final advices and recommendations from the Department
of the Interior.

In regard to that portion of the resolution which provides for a
right of appeal to the Supreme Court of the United States, I would
suggest, first, that the provision is somewhat indefinite; and, sec-
ondly, that under the existing statutes appeals may be taken in
suits brought by the United States to the circuit court of appeals
and thence to the Supreme Court Avhen the matter in controversy
before the latter tribunal exceeds $1,000. exclusive of costs.

Respectfully, for the Attorney General.

Ernest Knabel,
Assistant Attorney General.



YAKIMA WATER RIGHTS THE CONITCNTION OF THE INDIANS.

It is claimed for the Yakimas of Washington that they were the
first settlers, their right to the reservation lands being confirmed by
the treaty of 1855. negotiated by Gov. Stevens of the then Territory
of Washington. The treaty contemplated the civilization of the
Indians by providing (sec. 2) that they should settle on the lands
within a year; they were granted (sec. 3) exclusive right to take
fish in all streams running through or bordering on the reservation;
provision was made (sec. 4) for breaking up and fencing farms,
building houses for them, establishing agricultural and industrial
(sec. 5) schools, and employing workmen to teach the various trades;
a flouring mill was to be established, and land plowed and fenced for
farming purposes, and (sec. (•) the Indians located in permanent
homes.

Irrigation is a necessary requisite to farming in the Yakima coun-
try, and the Yakimas have established by use of their own funds an
irrigation system to supply water from the streams to which they
have a prior right, covering 80,000 acres. It is claimed for them
that th^ are entitled to the normal flow of the waters within the
reservation for irrigation, and no doubt their claim for water from
the streams bordering upon their lands is Avell founded.

It is believed that the statutes of the State are not binding upon
the Indians nor the Government affecting the Indian's water rights.
The United States Supreme Court affirmed a decision rendered by
the United States circuit court of appeals in 1908 relating to water
for, irrigation of Yori Belknap Indian Reservation lands in Mantana.
in which it was held :

In conclusion, we are of opinion that the court below did not err in holding
that "when the Indians made the treaty granting rights to the United States
they reserved the right to use the waters of Milk River at least to an extent



8 MEMORIAL OF THE YAKIMA TRIBE OF INDIANS.

reasonably necessary to irrigate their lauds. The right so reserved continues
to exist against the United States and its grantees, as well ms against the State
and its grantees." (Winter v. U. S., 207 U. S., 564.)

In confirming the decree of the lower court the United States Su-
preme Court relied exclusively upon the terms of the agreement be-
tween the Indians and the Government by which the reservation was
set apart for the permanent home of the tribe, by means of which
they were to become self-supporting " * * * as a pastoral and
agricultural people and educate their children in the paths of civili-
zation."

As showing that the Indians can not be expected to immediately
make the most beneficial use of the water to which they are entitled
for irrigation and that they should not suffer by reason of this, a case
in point is found in the decision of the court in the action of the
Ignited States against the Conrad Investment Co., confirmed by the
United States court of appeals in 1908 (161 Fed., 829). The court
said:

Manifestly the Indians can not be expected to acquire water rights to any con-
siderable extent through prior appropriation, because they are not far enough
iidvanced in the art of agriculture to reduce the water to a continuous use,
and the water of the public streams that they shall finally need depends largely
upon their progress in this art. The Government, however, being their guar-
dian, has a most important trust to perform in this relation — that is, so to con-
serve the waters of such streams as traverse or border the reserve as to supply
the Indians fully in their probable, or, I may say, even possible future needs,
when they have ultimately secured their allotments in severalty.

As indicative of what a judicial determination of the Yakima
water rights would be, we submit that the terms of the Yakima treaty
are more favorable to their tribe than the treaties to which the de-
cisions quoted refer. From this we may confidenth^ conclude that
tlie prior right through treaty of the Yakimas to the running water
of the streams within and bordering on their reservations is well
established.

Notwithstanding the apparent equities and the favorable decisions
of the courts supporting the claims of the Yakimas, the United States
Reclamation Service refers to the Yakima claims as being vague
claims.

These Indians complain most bitterly of the injustice of denying
to them the use of sufficient water for irrigation of their lands.
jNIany of the Indian farms have become barren and the allottees des-
titute. At the time of my receAt visit to the reservation influential
tribesmen importuned that they might be allowed water for irriga-
tion of lands Avliich they have for years cultivated and by which they
have supported themselves and families.

It has been shown that in the settlement of contesting claimants
for water the Yakimas have not been treated fairly. To illustrate:
The adjustment of the contentions under the Sunnyside unit,
or project, the reports of the Reclamation Service show that the
settlers were diverting 625 second-feet and the Yakimas within
the reservation 269 second-feet of water, although the Indians claim
a far greater diversion ; the canals of the settlers under the Sunny-
side embraced 60,000 acres, while the reservation canals covered
80,000 acres (the area could have been enlarged to include 170,000
acres of irritable land). The settlers had filed on 1,050 second-feet
and the Yakuuas on 1.000 second-feet. From this we deduce that the



MEMOEIAL OF THE YAKIMA TBIBE OF INDIANS. 9

Indians should have been awarded one-third more water than the set-
tlers under the Sunnyside canals on the basis of actual capacity of
works and use of water independently of the claim of prior right
under treaty.

The Yakimas were further harrassed by reason of a temporary
injunction issued out of the State courts of Washington prohibiting
them from using over 147 second-feet of water, estimated to be
sufficient for irrigation of 11,760 acres.

Before a trial of the rights involved in the injunction proceeding
the Secretary of the Interior, on March 27, 1906, approved a schedule
of the Eeclamation Service limiting the Indians to 147 second-feet,
as claimed by the settlers outside the reservation who were prosecut-
ing the injunction. The injunction was then abandoned. The net
results of this proceeding were, that while the Indians should have
been awarded one-third more water by comparison of canals installed
and beneficial use aside from treaty rights, they were given less than
one-fourth as much as was granted the settlers.

It should be borne in mind in this connection that the injunction
proceedings in the State courts were illegal, since they were without
jurisdiction in the case.

The injustice of the award of water in the foregoing instance is
tersely stated in a protest by the Indians against legislation now
pending which proposes to charge the Yakimas for water in excess
of a quantity sufficient for 32,000 acres.

In 1906 Secretary Hitclicock divide water in Yalvima River and give us 147
cubic feet and give Sunnyside Canal 6.50 feet, leaving several miles of our
new ditch dry, and not enough to water good the 80.000 acres watered by our
ditches. We ask if this is right?

Our riparian rights are older than those of the white man. This reservation
we were permitted to hold when the Government took all our other land.
Water is life and belongs to the earth. Our land is poor without water. The
Government has set still and let our water be stolen, and now the Reclamation
Service cinch us tight if Jones bill 6693 become law.

On Ahtanum River divide of our reservation, where white man have most
land, the Secretary of Interior gives three-fourths of water to white man.
Now, when red man have most land to water, he gives nearly all water to
white man. This was done, and we could not help ourselves. We want only
what is right. God wants the white man and the red man to live in peace.
We try hard to do right and obey the white man's laws. We want you to help
us. We want the white man to be honest and treat us right. Our words are
done.

By the act of 1904 it was proposed that allottees should relinquish
all land, excepting 20 acres, for which a free water right would be
given. This the Yakimas refused to do, believing that they were
entitled to a very much larger acreage by reason of prior appropria-
tion, through construction of canals, and by riparian rights, which,
as shown, are upheld by the courts in other cases.

The legislation now pending in Congi-ess (S. 6693), which has
the approval of the Secret arv of the Interior, provides for the con-
struction of a reservoir at an expenditure of $1,800,000. This meas-
ure limits the amount of free-storage water for the Yakima Indians
to 32,000 acres, which is about the acreage the Yakimas claim they
are now making beneficial use of. One hundred and twenty thou-
sand acres of Yakima Reservation lands are included in this project,
so that if the Indians secured water for the remaining 88,000 acres


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Online LibraryYakima nationMemorial of the Yakima tribe of Indians protesting against the passage of Senate bill 6693, relating to the distribution of water for irrigation purposes .. (Volume 2) → online text (page 1 of 2)