Alexander

(dissenting).

I think the injunctive relief should have been granted and that the case should be reversed.

We are asked to review a decree entered in a suit brought to enjoin the owners of *360 certain Indian allotments on the Flathead Indian Reservation from diverting water through their privately constructed ditches in excess of amounts allocated to them and their predecessors by the Secretary of the Interior in 1921.

The reservation in question is situated in Montana and was created by treaty in 1855. For a part of its history, see United States v. McIntire, 9 Cir., 101 F.2d 650 . The treaty impliedly reserved all waters on the reservation to the Indians. Winters v. United States, 207 U.S. 564, 577 , 28 S.Ct. 207 , 52 L.Ed. 340 ; United States v. Powers, 9 Cir., 94 F.2d 783, 785 . Being reserved, water rights could be obtained only as specified by Congress.

The General Allotment Act, Act of Feb. 8, 1887, Ch. 119, § 7, 24 Stat. 390 , 25 U.S. C.A. § 381, provided in part: “In cases where the use of water for irrigation is necessary to render the lands within any Indian reservation available for agricultural purposes, the Secretary of the Interior is authorized to prescribe such rules and regulations as he may deem necessary to secure a just and equal distribution thereof among the…