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«Item type text; Electronic Dissertation Authors DeJong, David Henry Publisher The University of Arizona. Rights Copyright © is held by the author. ...»

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This canal would further jeopardize Pima water. More ominously, Schuyler recommended Pinal Mutual sink twenty 15-inch groundwater wells.636 As in many parts of the Indian West, the Pima were fighting not only to hold onto the remaining floodwaters coming down the river but also to restore natural flowing water to which they had been deprived over the preceding half century. The federal government, the agency to which settlers turned for reclamation assistance, was the same government responsible for protecting Indian resources. Frederick Newell, director of the Reclamation Service, was cognizant of this conflict. “The history of … Indians on arid lands has shown that unless protected with great care the rights to the use of water on Indian lands has been gradually lost through neglect or oversight.” Without careful protection, “the future use of the necessary water has resulted disastrously to the Indians.”637 As legal guardians of the Pima, the U.S. Government had a fiduciary obligation to protect their water. In a clear conflict of interest, the federal government also had a responsibility to protect the rights of non-Indian water users, placing it in the ambiguous position of “enforcing a contradictory and inconsistent set of water laws.”638 Congress was deliberate in considering the impact of the reserved rights doctrine, but remained divided as to what it meant. Western Congressmen staunchly opposed the 636 The Pinal Mutual Water Company was unable to secure any water from the Florence Canal Company since the latter was in a failed receivership. Florence landowners formed the new company with the intent of building an entirely new project. The new project planned to build a permanent diversion 4,000 feet above the existing canal head and surveyed a grade of 2.64 feet per mile for 18.38 miles. J.D. Schuyler, Water Supply and Proposed Irrigation Works of the Pinal Mutual Irrigation Company of Florence, Arizona, December 5, 1911, pp. 19-21.

637 Annual Report of the United States Reclamation Service, 1902 (Washington, DC: GPO, 1903), p. 289.

638 McCool, 1994, p. 37.

277 doctrine, while Eastern legislators were amenable to it if it quantified a time frame for existence (until allotment was completed). Most did not understand or were unaware of the court’s ruling, including Arizona Senator Marcos Smith, who admitted he had never heard of the case. During the 1914 Indian Appropriation Act hearings, Senator Page, a proponent of Indian reserved rights, argued that American Indians were encouraged to farm and make beneficial use of their water. “The Indian says, ‘I have no money; I have no horses; and I have no wagons. I have no plows. Help me to the wherewith and I will do it.’ Our reply to him is substantially this: ‘No sir, we are going to tie your hands. We will not give you anything to work with; and yet if you do not make beneficial use of this water within three years your rights’” will be taken away.639 Smith was antagonistic to Pima reserved rights, viewing any issue of water rights as a matter of state’s rights (and prior appropriation). Assistant Commissioner of Indian Affairs Edgar Merritt prophetically explained that Congress, by not dealing with the inherent conflicts in water law, would one day see tribes taking “their water rights status to the courts for determination.” Congress was clearly not amenable to legitimizing Pima water rights. Strong political opposition relegated any statutory recognition of reserved rights to the political scrap heap.640 The Indian Service also poorly understood the meaning of reserved rights. Sells believed Indian water rights in general were in jeopardy and that the “legal right to the use of water” by Indians was “of primary importance.” This right, the Commissioner explained, rested “upon common-law riparian rights in some cases, and in others [upon]

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beneficial use of water.” While noting the court’s implied reservation of water, Sells believed this applied only to tribal lands and did not “involve the rights of any individual Indian.” The Indian Service adopted the view that reserved rights applied to tribes up to the point of severalty, at which time individual Indians would fall under prior appropriation laws.641 Sells saw “no danger of immediate loss of [Indian] water rights.” With the Indian Service failing to recognize the need to legitimize Indian water rights, Congress felt little compunction to do so. Representative Franklin Mondell (R-WY) was quick to point out this lack of urgency. If the Indian Service saw no danger to Indian water rights then Congress had no reason to provide a statutory base for Pima rights.642 When flooding in the winter of 1914-1915 caused heavy damage along the Gila River, Hayden believed it was the time for Congress to control the river. Recognizing Congress would not approve of the costly San Carlos project, Hayden and Ashurst instead focused on gaining approval to build a smaller project for the “benefit of the Indians.” It was advantageous, Hayden argued, to have a portion of the Florence diversion dam charged to private landowners since they would also benefit from it. The Pima and their neighbors received water from the same source, Hayden reasoned, and had a common interest that would bind them “for all time to come.”643 Ashurst worked to secure an amendment to the bill adding a second diversion dam to be located on the reservation. Reed urged Sells to approve of the plan to build the second dam with a superstructure bridge over top. Olberg explained a bridge was “badly

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needed by the Indians and the white people.”644 Furthermore, the dam was needed to divert water into the Santan Floodwater Canal, a proposition that depended at the time on brush dams. While ostensibly a means to provide the Indians with transportation over the river, the bridge was more the desire of A. J. Chandler, who sought to influence the development of a state highway connecting Phoenix and Tucson through his growing agricultural community.645 The Senate Indian Affairs Committee was skeptical of the real intent of the FCGP, fearing another “white man’s proposition” designed to deprive the Pima of their water. Senator Harry Lane (D-OR) explained that Indians rarely “benefit from water … if the white man has the first opportunity.” Despite the 1908 Winters decision upholding Gros Ventre and Assinboine rights on the Fort Belknap Reservation, upstream users continued to appropriate the waters of the Milk River. How would it be any different on the Pima Reservation, Lane inquired, if Congress should approve of the FCGP?646 Senator Lane invited Samuel Brosius of the Indian Rights Association (IRA) to address the committee. Brosius had been involved in Pima water issues since 1911, when the IRA responded to the Pima’s appeal for justice. He recommended committee support for the bill but only if it guaranteed the enforcement of the prior rights of the Indians through the insertion of a clause clearly spelling out Pima water rights to 40,000 acres of 644 “Report on the San Carlos Irrigation Project and the History of Irrigation along the Gila River, p. 87. Annual Report of the Irrigation Service, fiscal year 1915, p. 40.

645 A bridge over the Gila River east of Sacaton would also benefit Chandler’s San Marcos Hotel patrons who could more easily visit the Casa Grande ruins. See Sylvia Lee Bender-Lamb, Chandler, Arizona: Landscape as a Product of Land Speculation, MA Thesis, Arizona State University, May 1983, p. 80. See also Henry F. Dobyns, The Pima-Maricopa, (New York: Chelsea House Publishers, 1989), pp. 77-78.

646 Indian Appropriation Bill: Hearings before the Committee on Indian Affairs, United States Senate on H.R. 20150, 63rd Congress, 3rd Session (Washington, DC: GPO, 1915), p. 506.

280 land. Any water remaining after the Pima had received theirs could be made available to neighboring farmers.647 Hayden opposed legislation delineating Pima water rights. He and Merritt resisted specific quantities and acreage fearing they would bind the Indian Service so that it “could not do what was best.” Senator Robinson feared the omission of a dedicated water supply for the Pima, arguing that if the government agreed the Pima had prior water rights then “Why should it not be incorporated in the bill?” Robinson further feared that by not including clear language protecting Pima water rights, the Indian Service at a later date might “be forced to exercise a discretion that it might not want to exercise.”648 Senator Lane badgered Hayden on the quantity of Pima land that could be irrigated if the FCGP were approved. Acres under ditch and potential irrigated acres were crucial data needed to demonstrate allocation of water. Hayden, wanting the project approved, played his “Indian card.” The Pima’s current diversion of water was “below the white diversion,” but passage of the FCGP would “carry the Indian diversion up the river so that he will get an equal chance to obtain his share of the water.” Hayden clearly sought to ensure the appropriation of water for the reservation but without addressing Indian reserved rights. Since Hayden believed it was senseless to build another canal to deliver water to the reservation, he proposed using the existing off-reservation distribution canal and constructing a lateral to convey water to Pima farms.

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To deliver water to the reservation, the United States would have to purchase the Florence Canal. Any lateral extension would have to cross private and public lands.

While the 1890 Canal Act allowed such latitude, Hayden preferred an exchange for the right-of-way, with the government allowing non-Indian farmers to divert water from the same structure. Only if the government built and controlled the diversion dam on the Gila River and operated the distribution and lateral canals, would the Pima be assured of receiving their water. Ashurst was so confident the project would protect Pima water rights that he boasted in Arizona one had to be “an Indian to secure … your rights.”649 Despite lacking a consensus on the meaning of Indian water rights, the House and the Senate agreed the most expedient means of resolving the Pima water dispute was to build a joint-use irrigation system that would distribute the benefits and costs of the project. In March 1915, the Senate Indian Affairs Committee recommended an appropriation not to exceed $175,000 to construct the Florence diversion dam. A House filibuster at the close of the 63rd Congress, however, prevented the bill from passing and it died.

After five years of discussion and debate, it was apparent that neither the Indian Service nor Congress fully understood or cared to pursue the matter of Indian reserved rights. The Indian Irrigation Service, meanwhile, continued to gather data in preparation for land severalty and to demonstrate Pima utilization of the water. Congress considered legislation but only within the context of a joint-use system that was based on prior 649 If private citizens controlled the diversion, Hayden argued, more litigation would follow and if non-Indians were forced to turn some water back into the river for the benefit of the Indians it would be absorbed by the river and never make it to the reservation.

Thus, the dam would be a “strategic advantage” to the Pima. See “Extracts from the Hearings Before the Senate Committee on Indian Affairs, Thursday, January 28, 1915,” in Diversion Dam on the Gila River At a Site Above Florence, Arizona, p. 9. “Erosion and Overflow, Gila River, Arizona,” Senate Report 262, 64th Congress, 1st Session (Washington, DC; GPO, March 16, 1916), p. 8.

282 appropriation rights. To appease the friends of the Indians, Hayden and Ashurst had to clearly show that the Pima were the primary beneficiaries of the project.

Map 11: Irrigation Projects on the Pima Reservation, 1908-1922

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To this end, the Indian Service began work on a series of reservation irrigation projects designed to protect existing Pima water and demonstrate that the Pima could farm more land if their full rights were protected. The centerpiece of the emerging irrigation system was the Sacaton (sometimes called Santan) Project. This project was

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Stotonic, and centered around the construction of the Santan Floodwater Canal and the introduction of groundwater pumping on the reservation. The canal, which headed on the Gila River three miles east of Sacaton, was designed to convey episodic floodwater from the river onto land targeted for allotment. Ten pumping plants would supply the majority of water for irrigation.

Valentine optimistically reported over 4,500 acres irrigated in the Sacaton Project in 1911, with “the main canals … now built above 10,000 acres.”650 But when the IRA publicized the Pima cause, Congress was compelled to examine more closely irrigation matters in central Arizona, with the House Committee on Expenditures opening hearings

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used by upstream farmers for more than 25 years. Code did not regard it “as feasible to attempt to fight for water rights that had been taken away so many years before.”651

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