Wyoming v. United States Page 2

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Audio Transcription for Oral Argument - April 25, 1989 in Wyoming v. United States

Michael Douglas White:

The concern that I mentioned of the Indians, federal officials, and Congress, led to the 1905 Act, which was a ratification of the 1904 agreement with the Indians.

And it was pursuant to the Water Proviso of that Act that these water rights were obtained.

The Water Proviso in Article III of the 1905 Act says that water rights shall be detained under state law.

Sandra Day O'Connor:

The acreage found to be practicably irrigable in this litigation by the Wyoming Supreme Court was 108,000 acres?

Is that right?

Michael Douglas White:

It is close to that... it makes no difference, Your Honor.

I've used 100,000 for round figures, but--

Sandra Day O'Connor:

The state had apparently even agreed that it was 102,000.

Michael Douglas White:

--We agreed... we have asserted, Your Honor, when the litigation began that there were 102,000--

Sandra Day O'Connor:

Un-huh.

Michael Douglas White:

--but we used that with a different quantification rate and a different priority date.

Sandra Day O'Connor:

But applying the practical... the practicably... it's hard to say?

Michael Douglas White:

You're right.

Sandra Day O'Connor:

--irrigable standard, the state had agreed it was at least 102,000?

Michael Douglas White:

With a different amount of water and a different priority date, that's correct, Your Honor.

The 1905 Act had two particular effects.

First was to open the reservation to non-Indian settlement in the portion that's marked as ceded on your map.

Everything north of the Wind, east of the xxx.

The second thing was to allow that land to be sold to non-Indians under the public land laws.

Sandra Day O'Connor:

Marked ceded land?

Michael Douglas White:

Yes, sir, they are.

The second purpose was to take the proceeds that were enjoyed from the sale or the eventual lease of those lands and use them for the benefit of the... of the Indians.

And one of those benefits was to acquire water rights under state law, as I explained in response to Justice O'Connor's questions.

In fact, the congressional intent in this respect was so strong that when the Indian Rights Association was concerned about state rights being required for these Indian... for the Indian water rights, it was proposed in both committees of... excuse me... the committees of each House of Congress that a limited reserved right be established for the reservation.

And it was rejected.

It was not included in the 1905 Act.

And, again, in 1914, a permanent reserved right was proposed for the reservation and it too was rejected by Congress.

It was stricken on the floor of both Houses on a point of order as being a legislative matter attached to an appropriations bill.

So, Congress knew what it was doing.

It wasn't merely a way to spend a little extra pocket money.