OPINION ON PETITION FOR REHEARING

Subsequent to the date our opinion was filed the Supreme Court rendered its decision in Wilson v. Omaha Indian Tribe, —— U.S.—— , 99 S.Ct. 2529 , 61 L.Ed.2d 153 (1979). The State of Montana in its petition for rehearing argued that Wilson required that Montana law be applied to determine the upper limit of the title to the bed and banks of the Big Horn. So applied, the State of Montana pointed out, would require that this limit be the low-water mark rather than the ordinary high water mark that we held was proper. In response to Montana’s petition, the United States argued that federal common law determined the proper upper limit of the Big Horn bed and banks and that such common law should not borrow state law as its law as was done in Wilson . Under federal common law both the State of Montana and the United States agree that the bed and banks of the Big Horn would reach to the ordinary high water mark.

We confess to a certain amount of difficulty in determining the proper response to the State of Montana’s argument. Under Wilson the adoption of state law as a part of federal common law requires considering

We have considered these factors and have concluded, albeit less confidently than we would like, that state law should not be adopted as the federal common law in this case.

Our consideration of whether a nationally uniform law is needed yields uncertainty. The United States argues that a nationally uniform rule is needed because of the vast amount of lands held in trust for Indians that it administers. We are not entirely convinced that these responsibilities necessitate rejection of Wilson’s adoption of state law.

Such rejection, however, very well may prevent frustration of “federal policy and functions.” We reach this conclusion because of the particular history of the allotments of riparian land on the Crow Reservation. Almost all such land, the United States asserts and the State of Montana does not deny, was initially allotted to Indians who, in some instances, later sold to non-Indians. Under these circumstances, it is natural to assume, the United States argues, that federal common law alone should fix the boundary between the bed and bank of the Big Horn River, which was held in trust for the Crow Tribe, and riparian land originally allotted to individual Indians. This argument has force.

Montana Power Co. v. Rochester, 127 F.2d 189 (9th Cir. 1942). We know of no reason why that principle was not applicable to the patents of the riparian land involved in this case. To adopt at this late date a different rule very likely would frustrate the intention of the United States in granting the patents. This can be described, we think, as frustration of “federal policy and functions.”

Finally, we are not convinced that failing to adopt Montana law as federal common law will impact harmfully on existing relationships under state law. It is true it may have been thought by some riparians that the State of Montana owned the bed and banks of the Big Horn and that Montana law fixed the limits of riparian title. When the assumption regarding the title to the Big Horn is removed, however, there is much less reason to expect that state law *1174 will fix those limits. In any event, to assume that the State of Montana owned the bed and banks of the Big Horn was to assume something not then established by law.

On balance, therefore, we decline to alter the view we expressed in our original opinion, viz., that title to the bed and banks of the Big Horn extends to the ordinary high water mark.