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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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673 The United States had a statutory obligation to protect Pima water in any court action by virtue of the Act of March 3, 1893 (27 stat. 631), which held: “In all States and Territories where there are reservations or allotted Indians the United States District Attorney shall represent them in all suits at law and equity.” The U.S. was derelict in protecting the rights of the Pima, especially by not intervening on behalf of the Pima in the Lobb vs. Avenente case. By not intervening, the United States failed to protect the reserved rights of the Pima, as set forth in the 1908 Winters vs. United States decision. Failure to declare waters of the Gila River as were necessary for the needs of the Indians ensured future litigation.

291 Diversion Dam).674 While the Pima were skeptical, Congress saw the bill as the first step in restoring Pima prosperity.675 The FCGP was a joint-use irrigation system serving both Indian and non-Indian farmers. This was important as it demonstrated Congress intended for the reservation economy to be integrated and on par with that of local farmers. At the same time, the project was first and foremost for the benefit of the Pima, harnessing both the floodwaters and any remaining natural flow of the river and making them available to the Indians. But while the Senate debate clearly indicated a desire to provide the Pima with “all the water they needed,” the actual bill gave the secretary of the interior authority to negotiate a water division agreement between the Pima and their neighbors in the Florence-Casa Grande Valley.676 The project was conditioned on the ability of the secretary to make “satisfactory adjustments” in “accordance with the respective rights and priorities” of both parties as “determined by agreement of the owners thereof with the Secretary of the Interior.”677 Without a landowner’s agreement, there would be no Florence-Casa Grande Project.

The FCGP was to irrigate 62,000 acres of land in the Gila River and FlorenceCasa Grande valleys. While Olberg sought to include 50,000 acres of Pima land—with rights to 175,000 acre-feet of water—within the project (based on a population of 5,000 Pima and Maricopa, each of whom would receive a ten acre irrigable allotment), the

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secretary included just 35,000 acres of Indian land and 27,000 acres of non-Indian land.678 To irrigate Pima farmland, water would continue down the Gila River to be diverted by a diversion dam east of Sacaton into the Santan Floodwater and Little Gila (i.e., Casa Blanca) canals. In times of low flow, water for the Pima would be diverted through the government-purchased and newly renamed Florence-Casa Grande Canal and carried through the proposed Pima Lateral to the reservation.

Secretary John Barton Payne was given statutory authority to designate which lands would be made part of the FCGP. Negotiations between the secretary and offreservation landowners began immediately. In March 1917, Florence landowners announced an agreement with Payne, only to rescind it in June. Work on the project came to a standstill. By summer, some landowners in Florence (Round Valley) incorporated under state law for the purpose of developing their own water source using groundwater.

More than 5,000 acres was signed up by 1918, placing the FCGP in jeopardy. With the project at risk, off-reservation landowners “insisted on a division of the available waters.” Payne, desperately wanting to consummate an agreement, skirted the original Congressional intent of providing the Pima with all the water they might need and acquiesced to off-reservation demands. He then placed 3,500 ten-acre Pima irrigable “A” allotments on the eastern end of the reservation under the project.679 678 Olberg recognized the existing Pima farmland would be more expensive to irrigate using modern irrigation. The question to be solved, Olberg queried Thackery, was balancing the greater expense “against the expediency of having the Indians moved to other lands.” While suggesting that the relocation of the Indians was an option, Olberg admitted the Pima would “seriously object to being removed.” “Olberg to Thackery,” dated September 4, 1913, in Olberg Letterbox, Historical Research 1914-1915. There were 11,039 acres in the Florence area protected by the Lockwood Decree that were included in the project, along with 1,961 acres along McClellan Wash. Some 14,000 off-reservation acres were divided evenly above and below McClellan Wash (or between Florence and Casa Grande).

679 Annual Report of the Irrigation Service, fiscal year 1918, p. 9. Annual Report of the Commissioner of Indian Affairs, 1919, p. 45.

293 Hayden, understanding the needs and desires of the farmers above the reservation and aware that his political future was at stake, resisted legislative limitations for just this reason. Recognizing off-reservation landowners would not consent to government acquisition of the Florence Canal if their rights and interests were not protected, Hayden used his influence to keep the FCGP bill free of encumbrances. Acknowledging the project could have been built similar to Reclamation Service projects, with the entire expense charged to the Indian lands and any surplus water furnished to private landowners “on a rental basis,” Hayden did not regard this as feasible. The only viable option was to grant the secretary discretionary authority to fashion an agreement with private landowners to bring them under the project and pay their share. This would protect their rights and those prioritized by the Lockwood Decree.680 Payne sent John T. Reeves to reach an agreement with off-reservation landowners, who had to convince the secretary as to the merit of their land and priority of their water rights. By May 1919, Reeves had contracts for more than 80,000 acres of land, ranging in size from 5 to 4,145 acres. By late summer, Reeves hammered out an agreement between the landowners and the Interior Department, with more than 85% of the eligible land under contract. In determining eligibility, Reeves gave priority to previously irrigated and cultivated land, as well as irrigated lands protected under the Lockwood Decree.

The Florence-Casa Grande landowners’ agreement included the owners of “practically all of the said lands to which water rights in the Gila River” were

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appurtenant. These landowners, and the secretary on behalf of the Pima, placed their lands under burden of “a first lien” with the federal government. Deeds from “canal companies … and partly constructed canals and other property” were attached to the agreement, which included the statement that “a satisfactory accomplishment of the purpose of the [Florence-Casa Grande Project Act] as pertaining to providing irrigation for Indian lands in the Gila River Indian Reservation” had been met. Payne accepted the agreement with 357 landowners encompassing 26,994.26 acres of land. He approved the

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language that was not found in the authorizing legislation. The agreement, a result of political dialogue and realities that did not include mention of Pima reserved water rights, 681 Determination and Declaration of Feasibility of the Florence-Casa Grande Project, approved by Secretary of the Interior John Barton Payne, April 22, 1920, in SCIP files. Fifty-eight landowners had a priority date predating the opening of the Florence Canal in 1886, while 195 had a priority date after January 1, 1915. Charles Sligh had nineteen claims totaling 4,065 acres, for most of which Sligh was “trustee.” See also “Lands Designated Under Florence-Casa Grande Project,” Casa Grande Valley Dispatch, June 11, 1920.

The Dispatch noted 26,304.5 acres were brought under the project. Payne had actually declared the project feasible in May of 1919.

See Annual Report of the Commissioner of Indian Affairs, 1920, p. 25. With the passage of the FCGP, the Indian Service surveyed the Florence Canal and purchased it for $50,000 from the Casa Grande Water User’s Association on March 16, 1920 (as part of the landowners’ agreement). Indian Service construction to extend the canal began in July 1923.

295 divided the natural flow of the river between Pima farmers on the reservation and farmers in the Florence-Casa Grande Valley. Of the first 300 cubic feet per second (cfs) of water, the Indian share would be 60.6% of the flow, with non-Indians receiving 39.4%. The Indians would receive 51.7% of the flow between 301-600 cfs, with off-reservation lands receiving 48.3%. The Pima received 56.1% of any flow above 600 cfs. The cost of the project was to be apportioned according to division of the water. Pima farmers would be responsible for 35/62 of the project costs with off-reservation farmers assessed 27/62 of the cost.682 The agreement also included a provision that denied the Pima water during times of insufficient flow, raising old arguments from the nineteenth century that even if Florence farmers turned back the natural flow of the river it would not reach the reservation due to its absorption into the broad, alluvial riverbed. In times of diminished flow, when the Pima share was “too small to reach the Indian reservation,” the secretary could allow “all of the said water to be applied to the irrigation of privately owned lands in accordance with their priorities.” By so dividing the water, the time immemorial rights of the Pima to the waters of the Gila River were denied, weakening the foundation of the agreement from the beginning.683 To ensure completion of the project, construction on the Florence diversion dam had to commence within one year of May 1, 1920. On May 7, the Casa Grande Valley Dispatch confidently assured its readers that work would “start as soon as arrangements

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can be made to get same under way.”684 Olberg, who was in charge of designing the diversion dam, selected a site twelve miles east of Florence at Price Station on the Arizona Eastern Railroad. Here the Gila River flowed between two granitic outcroppings 400’ apart. The riverbed, however, was a deep alluvial canyon, with boring tests indicating sand to a depth of more than 100’. To avoid constructing a more costly dam anchored to bedrock, Olberg chose to construct an East Indian weir designed to withstand a flood of 150,000 cubic feet per second.685 On May 10, 1922, Commissioner of Indian Affairs Charles Burke dedicated the Florence diversion dam, christening it Ashurst-Hayden Diversion Dam after its two primary sponsors.686 President Warren Harding congratulated Olberg on completion of the dam, which the President saw as ending “fifty years of strife and disputation between Indians and white (sic) regarding the distribution of the waters of the Gila River.”687 Ashurst-Hayden Diversion Dam did little for the Pima. Water that was supposed to be delivered to the reservation went increasingly to the same water users as before. To better provide for the needs of the Pima, the FCGP Act authorized a second diversion dam with a bridge superstructure.688 Sacaton Dam—initially referred to as Santan Diversion Dam—was intended to complement Ashurst-Hayden Diversion Dam by 684 The Landowner’s Agreement included the caveat that construction had to begin on the Florence Dam within two years of May 1,

1919. See “An Agreement of the Landowners to Induce the Secretary of the Interior to Undertake the Florence-Casa Grande Irrigation Project.” “Florence Diversion Dam Assured by Official Act of Secretary,” Casa Grande Valley Dispatch, May 7, 1920.

685 C.R. Olberg, “Report on the San Carlos Irrigation Project and the History of Irrigation along the Gila River,” in San Carlos Irrigation Project, Arizona: Report to the Secretary of War of a Board of Engineer Officers, p. 85.

686 See “Good News for Land Owners,” The Bulletin, Casa Grande, Arizona, December 18, 1920. See also “Florence Diversion Dam Assured by Official Act of Secretary,” Casa Grande Valley Dispatch, May 7, 1920.

687 “Dedication Ceremony Ashurst-Hayden Dam,” in the Casa Grande Valley Dispatch, May 12, 1922. Reed congratulated Olberg on the “completion of the dam [which] is a long step toward the valley’s prosperity.” The original head of the Florence Canal no longer exists, as it was replaced by Ashurst-Hayden. During construction of the diversion dam, Olberg noted the presence of rock and brush from earlier diversion dams made construction of Ashurst-Hayden more difficult. Charles R. Olberg, History of the Construction of Ashurst-Hayden Dam, March 1, 1922, p. 57.

688 Indian Appropriation Act for the fiscal year ending June 30, 1917, 39 stat. 129. Another $125,000 was authorized by the Indian Appropriation Act for the fiscal year ending June 30, 1918, 39 Stat. 969 and 974.

297 catching additional floodwaters on the Gila River and diverting them into the Santan Floodwater Canal, twenty miles below the latter dam.689 Olberg believed the diversion dam was necessary to fully develop agriculture on the reservation. In 1919, just 2,783 acres of land was irrigated within the Sacaton Project and “[b]ut little more land can be brought under cultivation on this project” unless the diversion dam was constructed.690 Merritt believed enough water could be diverted for 30,000 acres in Casa Blanca.691 While Sacaton dam and bridge were architecturally similar to Ashurst-Hayden (both were designed by Olberg), at 1,250’ in length it was three times as long. But while the Florence dam could be anchored to granitic rock on both ends, Sacaton dam could not. The south embankment was simply an earthen berm eight feet high. Because of the deep river alluvium, the dam was also of the East Indian type.692 A 1,200’ long guide bank made up of riprap and extending at a right angle to the east of the dam was constructed along the south bank of the river to channel water over the weir. Sluice gates were to be built on both ends of the dam to flush silt out into the river below. A canal was to be built south away from the dam to convey floodwater into the Little Gila (Casa Blanca) Canal and thus “enable a double diversion, one on each side of the river.”693 Post war inflation escalated the cost of the project and the Indian Service was forced to ask Congress for additional funds. By May 1924, $700,000 was appropriated 689 Diversion Dam on the Gila River At a Site Above Florence, Arizona, p. 13. The dam and bridge was estimated to cost $173,599.

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