United States citing Ickes v. Fox, supra. The water rights became the property of the landowners and were wholly distinct from the Government ownership of the irrigation works. The Government was and remained simply a carrier and distributor of water. Accordingly, said the Court, even if it assumed that the United States owned the unappropriated rights, they were acquired by the landowners in precisely the manner contemplated by Congress. The question of ownership by the United States of nonexistent unappropriated water therefore was held to be largely academic.

With respect to this type of interstate controversy, the Supreme Court clearly indicated that it did not favor a litigious solution which it said is awkward and unsatisfactory. Such controversy, said the Court, may appropriately be composed by negotiation and agreement pursuant to the compact clause of the Federal Constitution."

On claims to unappropriated waters, the Court said:

*** The United States claims that it owns all the unappropriated water in the river. It argues that it owned the then unappropriated water at the time it acquired water rights by appropriation for the North Platte project and the Kendrick project. Its basic rights are therefore said to derive not from appropriation but from its underlying ownership which entitles it to an apportionment in this suit free from State control. The argument is that the United States acquired the original ownership of all rights in the water as well as the lands in the North Platte Basin by cessions from France, Spain, and Mexico in 1803, 1819, and 1848, and by agreement with Texas in 1850. It says it still owns those rights in water to whatever extent it has not disposed of them. An extensive review of Federal water legislation applicable to the Platte River Basin is made beginning with the act of July 26, 1866 (14 Stat. 251), the act of July 9, 1870 (16 Stat. 217) and including the Desert Land Law (act of March 3, 1877 (19 Stat. 377) and the Reclamation Act of June 17, 1902 (32 Stat. 388). But we do not stop to determine what rights to unappropriated water of the river the United States may have. For the water rights on which the North Platte project and the Kendrick project rest have been obtained in compliance with State law. Whether they might have been obtained by Federal reservation is not important. Nor, as we shall see, is it important to the decree to be entered in this case that there may be unappropriated water to which the United States may in the future assert rights through the machinery of State law or otherwise.

The Desert Land Act "effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself" California Oregon Power Co. v. Beaver Portland Cement Co. (295 U. S. 142, 158). It extended the right of appropriation to any declarant who reclaimed desert land and provided “all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights." (See Ickes v. Fox 300 U. S. 82, 95; Brush v. Commissioner 300 U. S. 352, 367).

Section 8 of the Reclamation Act provided: "That nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure and the limit of the right." [Italics added.]

The Secretary of the Interior pursuant to section 3 of the Reclamation Act withdrew from public entry certain public lands in Nebraska and Wyoming which were required for the North Platte project and the Kendrick project. Initiation of both projects was accompanied by filings made pursuant to section 8 in the name of the Secretary of the Interior for and on behalf of the United States. Those filings were accepted by the State officials as adequate under State law.

They established the priority dates for the projects. There were also applications to the States for permits to construct canals and ditches. They described the land to be served. The orders granting the applications fixed the time for completion of the canal, for application of the water to the land, and for proof of appropriation. Individual water users contracted with the United States for the use of project water. These contracts were later assumed by the irrigation districts. Irrigation districts submitted proof of beneficial use to the State authorities on behalf of the project water users. The State authorities accepted that proof and issued decrees and certificates in favor of the individual water users. The certificates named as appropriators the individual landowners. They designated the number of acres included, the use for which the appropriation was made, the amount of the appropriation, and the priority date. The contracts between the United States and the irrigation districts provided that after the stored water was released from the reservoir it was under the control of the appropriate State officials.

All of these steps make plain that those projects were designed, constructed and completed according to the pattern of State law as provided in the Reclamation Act. We can say here what was said in Ickes v. Fox, supra (pp. 94-95): "Although the Government diverted, stored and distributed the water, the contention of petitioner that thereby ownership of the water or water rights became vested in the United States is not well founded. Appropriation was made not for the use of the Government, but, under the Reclamation Act, for the use of the landowners; and by the terms of the law and of the contract already referred to, the water rights became the property of the landowners, wholly distinct from the property right of the Government in the irrigation works. ***The Government was and remained simply a carrier and distributor of the water (ibid.), with the right to receive the sums stipulated in the contracts as reimbursement for the cost of construction and annual charges for operation and maintenance of the works."

The property right in the water right is separate and distinct from the property right in the reservoirs, ditches or canals. The water right is appurtenant to the land, the owner of which is the appropriator. The water right is acquired by perfecting an appropriation, i. e., by an actual diversion followed by an application within a reasonable time of the water to a beneficial use. *** Indeed section 8 of the Reclamation Act provides as we have seen that "the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right."

We have then a direction by Congress to the Secretary of the Interior to proceed in conformity with State laws in appropriating water for irrigation purposes. We have a compliance with that direction. Pursuant to that procedure individual landowners have become the appropriators of the water rights, the United States being the storer and the carrier. We intimate no opinion whether a different procedure might have been followed so as to appropriate and reserve to the United States all of these water rights. No such attempt was made. Though we assume arguendo that the United States did own all of the unappropriated water, the appropriations under State law were made to the individual landowners pursuant to the procedure which Congress provided in the Reclamation Act. The rights so acquired are as definite and complete as if they were obtained by direct cession from the Federal Government. Thus even if we assume that the United States owned the unappropriated rights, they were acquired by the landowners in the precise manner contemplated by Congress.

It is argued that if the right of the United States to these water rights is not recognized, its management of the Federal projects will be jeopardized. It is pointed out, for example, that Wyoming and Nebraska have laws which regulate the charges which the owners of canals or reservoirs may make for the use of water. But our decision does not involve those matters. We do not suggest that where Congress has provided a system of regulation for Federal projects it must give way before an inconsistent State system. We are dealing here only with an allocation, through the States, of water rights among appropriators. The rights of the United States in respect to the storage of water are recognized. So are the water rights of the landowners. To allocate those water rights to the United States would be to disregard the rights of the landowners. To allocate them to the States, who represent their citizens parens patriae in this proceeding, in no wise interferes with the ownership and operation by the United States of its storage and powerplants, works, and facilities. Thus the question of the ownership by the United States of unappropriated water is largely academic so far as the narrow issues of this case are concerned (pp. 612–616).

2. Alabama v. Texas et al. (347 U. S. 272 (1954)) should be noted in connection with the power to dispose of the property of the United States. Per curiam the Court said:

The motions for leave to file these complaints are denied. Article IV, section 3, clause 2, United States Constitution. United States v. Gratiot (14 Pet. 526, 537): The power of Congress to dispose of any kind of property belonging to the United States "is vested in Congress without limitation. United States v. Midwest Oil Company (236 U. S. 459, 474): "For it must be borne in mind that Congress not only has a legislative power over the public domain, but it also exercises the powers of the proprietor therein. Congress 'may deal with such lands precisely as a private individual may deal with his farming property. It may sell or withhold them from sale.' Camfield v. United States, (167 U. S. 524); Light v. United States (220 U. S. 536)." United States v. San Francisco (310 U. S. 16, 29-30): "Article 4, section 3, clause 2 of the Constitution provides that 'The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory and other Property belonging to the United States.' The power over the public land thus entrusted to Congress is without limitations. 'And it is not for the courts to say how that trust shall be administered. That is for Congress to determine.' United States v. California (332 U. S. 19, 27): "We have said that the constitutional power of Congress [under article IV, sec. 3, clause 2] is without limitation. United States v. San Francisco (310 U. S. 16, 29-30" (pp. 273–274).

F. PROSPECTIVE ADOPTION BY CONGRESS OF STATE LAWS

A significant opinion of the Supreme Court has been delivered since the hearings in March and June 1956 on the Barrett bill. The issue in that case, U. S. v. Sharpnack (355 U. S. 286 (1958)), was whether the Assimilative Crimes Act of 1948 (18 U. S. C. 13) was constitutional insofar as it made applicable to a Federal enclave those criminal laws of the State, in which the enclave was situated, enacted subsequent to 1948.

The Assimilative Crimes Act has its roots in early law (4 Stat. 115), which was followed by a series of renewal acts. However, in answering a question, without hearing arguments, that arose in connection with a prosecution of an offense of burglary, under New York statutory law, which had been committed on the Federal enclave at West Point, Chief Justice Marshall had said that the operative force of the Federal statute was to be limited to the State laws in force at the date of its enactment (U. S. v. Paul, 6 Pet. 141, 142 (1832). See also U. S. v. Barnaby, 51 F. 20, 23 (1892)).

Congress, in enacting the criminal code into positive law in 1948 (62 Stat. 683), made State criminal laws "in force at the time of such [criminal] act or omission" applicable, in the absence of controlling Federal statutes. An intent thus to make future changes of State law applicable also was clearly stated in the reviser's note to section 13.

The importance of the Sharpnack decision is magnified by the fact that criminal law is always strictly construed. Nevertheless, the Supreme Court, in line with earlier precedents applying State law in the disposition of Federal property (Butte City Water Co. v. Baker, 196 U. S. 119 (1905)), and in Federal fields of regulatory power (Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. 299 (1851)) has resolved the issues of power in favor of Congress by sustaining prospective adoption of State law.

Section 535 of the Texas Criminal Code, under which Sharpnack was convicted, had been enacted in 1950, two years after the Federal Assimilative Crimes Act of 1948. Said Justice Burton for the majority:

There is no doubt that Congress may validly adopt a criminal code for each Federal enclave. It certainly may do so by drafting new laws or by copying laws defining the criminal offenses in force throughout the State in which the enclave is situated. As a practical matter, it has to proceed largely on a wholesale basis. Its reason for adopting local laws is not so much because Congress has examined them individually as it is because the laws are already in force throughout the State in which the enclave is situated. The basic legislative decision made by Congress is its decision to conform the laws in the enclaves to the local laws as to all offenses not punishable by any enactment of Congress. Whether Congress sets forth the assimilated laws in full or assimilates them by reference, the result is as definite and as ascertainable as are the State laws themselves.

Having the power to assimilate the State laws, Congress obviously has like power to renew such assimilation annually or daily in order to keep the laws in the enclaves current with those in the States. Congress is within its constitutional powers and legislative discretion when, after 123 years of experience with the policy of conformity, it enacts that policy in its That being so, we conclude that most complete and accurate form. of its legislative authority to the States, it is a deliberate continuing adoption by Rather than being a delegation by Congress Congress for Federal enclaves of such unpreempted offenses and punishments as shall have been already put in effect by the respective States for their own government. Congress retains power to exclude a particular State law from the assimilative effect of the act. chanics of the legislative functions of State and Nation in the field of police power This procedure is a practical accommodation of the mewhere it is especially appropriate to make the Federal regulation of local conduct conform to that already established by the State. kula 309 U. S. 94, 100-101.) (Cf. Stewart & Co. v. Sadra

Examples of uses made by Congress of future state legislative action in connection with the exercise of Federal legislative power are numerous. Kenyon Act of March 1, 1913 (37 Stat. 699, 700, 27 U. S. C. § 122 ***) Federal Black Bass Act, as amended (61 Stat. 517, 66 Stat. 736, 16 U. S. C. The Webb§ 852) *** Johnson Act (64 Stat. 1134, 15 U. S. C. § 1172) *** Federal Tort Claims Act (28 U. S. C. § 1346 (b))*** Social Security Act, as amended (71 Stat. 519, 42 U. S. C. A. (1957, Cum. Ann. Pocket Pt.) § 416 (h) (1) * * * Bankruptcy Act (52 Stat. 847, 11 U. S. C. § 24) ***.

Under 63 Stat. 25, 50 U. S. C. App. § 1894 (i) (1) and (2). States were authorized to free certain local areas from Federal rent control either by passing local rent control legislation of their own, or by determining that Federal rent control was no longer necessary * * *.

This Court also has held that Congress may delegate to local legislative bodies broad jurisdiction over Territories and ceded areas provided Congress retains, as it does here, ample power to revise, alter and revoke the local legislation (District of Columbia v. Thompson Co., 346 U. S. 100, 106, 109-110; Christianson v. Kings County, 239 U. S. 356; Hornbuckle v. Toombs, 18 Wall, 648, 655).

The application of the Assimilative Crimes Act to subsequently adopted State legislation, under the limitations here prescribed, is a reasonable exercise of congressional legislative power and discretion ***

Knickerbocker Ice Co. v. Stewart (253 U. S. 149 (1920)), an article III of the Constitution case, was disposed of in a footnote thus:

In Knickerbocker Ice Co. v. Stewart, supra, this Court voided a statute which attempted to make State workmen's compensation laws applicable to injuries within the Federal admiralty and maritime jurisdiction. holding, which we do not now reexamine, was that "the Constitution not only contemplated but actually established" a "harmony and uniformity" of law The basis of that throughout the admiralty jurisdiction. Id., at 164. because it was designed to "destroy" what was considered to be a constitutionally required uniformity. Ibid. That statute was voided to effectuate a long-standing congressional policy of conformity with local law. In contrast, the statute now before us is designed

• We do not now pass upon the effect of the Assimilative Crimes Act where an assimilated State law conflicts with a specific Federal criminal statute. Cf. Williams v. United States (327 U. S. 711), or with a Federal policy. Cf. Johnson v. Yellow Cab Co. (321 U. S. 383); Stewart & Co. v. Sadrakula (309 U. S. 94); Hunt v. United States (278 U. S. 96); Air Terminal Services, Inc. v. Rentzel (81 F. Supp. 611); Oklahoma City v. Sanders (94 F.2d 323).

DECISIONS PERTINENT TO PROPOSED WATER RIGHTS ACT 31

Justice Douglas, dissenting with the concurrence of Justice Black, said:

Of course Congress can adopt as Federal laws the laws of a State; and it has often done so ***. But *** under the scheme now approved a State makes such Federal law, applicable to the enclave, as it likes, and that law becomes Federal law, for the violation of which the citizen is sent to prison.

Here it is a sex crime ***. Tomorrow it may be a Blue Law, a law governing usury, or even a law requiring segregation of the races on buses and in restaurants. It may be a law that could never command a majority in the Congress or that in no sense reflected its will. It is no answer to say that the citizen would have a defense under the fifth and sixth amendments to unconstitutional applications of these Federal laws or the procedures under them. He is entitled to the considered judgment of Congress whether the law applied to him fits the Federal policy. That is what Federal lawmaking is. It is that policy which has led the Court heretofore to limit these Assimilative Crimes Acts to those State laws in force at the time of enactment of the Federal Act (United States v. Paul, 6 Pet. 141). And see Franklin v. United States (216 U. S. 559, 568-569).