207 U.S. Argument for Appellants. be wholly without remedy if the claim of the United States and the Indians be sustained. Mr. Edward C. Day and Mr. James A. Walsh for appellants: The decree is, in fact, separate and severable. It is not charged that the defendants acted jointly. Neither one is responsible for the acts of the other. In so far as the record shows, the defaulting defendants are not the owners of any lands and are not interested in this suit. Hancock v. Patrick, 119 U. S. 156; Forgay v. Conrad, 6 How. 201; Gilfillan v. McKee, 159 U. S. 303; City Bank y. Hunter, 129 U. S. 578; Milner v. Meek, 95 U. S. 252; Todd v. Daniel, 16 Pet. 521; Railroad Co. v. Johnson, 15 Wall. 8; Germain v. Mason, 12 Wall. 261. See also Hill v. Chicago and Evanston Ry. Co., 140 U. S. 52; Basket v. Haskell, 107 U. S. 602; Louisville & N. A. C. v. Pope, 74 Fed. Rep. 5; Farmers' Loan & Trust Co. v. McClure, 49 U. S. App. 146; Mercantile Trust Co. v. Adams Express Co., 16 U. S. App. 37. In the agreement with the Indians and the act of Congress, ratifying that agreement, there was no reservation of the waters of Milk River or its tributaries for use on the Fort Belknap Indian Reservation. Nor can it be held that the Indians understood that there was any reservation of the waters of Milk River for use upon the Belknap Reservation, or that they ceded and relinquished to the Government anything less than the absolute title to the lands and all waters thereon to that portion of the former reservation to which they relinquished their claims. The rule that the treaty must be construed most favorably to the Indians does not apply to this case. Here the controversy is between the United States, as guardian of the Indians, and the appellants who are citizens and grantees of the United States, and the controversy has reference to the titles granted by the United States to them. In such case, the appellants are the public in whose behalf the grants must be construed most strongly. The property granted to them by their entry upon and settlement of the public lands of the United States, and the appropriation of the waters flowing in the streams upon or adjacent thereto pursuant to the laws, decisions of the courts, rules and customs of the country, is property of which they cannot be deprived without due process of law, and without just compensation. There is nothing before the court for construction or interpretation, but the plain, unambiguous language of the agreement, and that is so clear that it does not require any construction or interpretation. The appellants made valid appropriations of the waters of Milk River and its tributaries under the laws, customs and decisions of Montana, and the laws of Congress, and their rights as grantees of the Government are superior to any rights which the Indians may have by reason of the agreement entered into between them and the Government. The doctrine of riparian rights is not recognized, does not prevail and never was in force in Montana, and the rights of the parties to the use of the waters of Milk River and its tributaries must be construed according to the laws of this State. Even if the doctrine of riparian rights did prevail, the appellants would be entitled to a reasonable use of the water for the purpose of irrigating their lands, having in view the equitable rights of others. The right to appropriate water is recognized by the laws of the United States, the laws and decisions of the courts and the customs prevailing in Montana, which are now and were in force in Montana at the time the agreement was made with the Indians, and these appellants have shown that they acquired title to their lands under the grant from the Government and made valid and prior appropriations of the waters to reclaim such lands. Mr. Assistant Attorney General Sanford and Mr. Assistant Attorney General Van Orsdel, with whom The Solicitor General 207 U.S. Argument for Appellee. and Mr. A. C. Campbell, Special Attorney, were on the brief, for appellee: The decree below adjudging the complainants' right to the flow of the waters of Milk River as against all of the defendants before the court, is a joint decree within the meaning of the rule that all parties against whom a joint judgment or decree is rendered must join in prosecuting a writ of error or appeal, and that if prosecuted by less than the whole number of such parties, without a summons and severance or other equivalent proceeding, the appellate court acquires no jurisdiction of the case and the writ of error or appeal will be dismissed. Owings v. Kincannon, 7 Pet. 399; Masterson v. Herndon, 10 Wall. 416; Hampton v. Rouse, 13 Wall. 187; Wilson's Heirs v. Insurance Co., 12 Pet. 140. The defect of lack of jurisdiction for want of necessary parties to the appeal was not waived by the final decree entered by the Circuit Court of Appeals upon the merits without objection on that ground. Union & Planters Bank v. Memphis, 189 U. S. 71, 73. Under the just and reasonable construction of this agreement with the Indians, considered in the light of all the circumstances and of its express purpose, the Indians did not thereby cede or relinquish to the United States the right to appropriate the waters of Milk River necessary to their use for agricultural and other purposes upon the reservation, but retained this right, as an appurtenance to the land which they retained, to the full extent in which it had been vested in them under former treaties, and the right thus retained and vested in them under the agreement of 1888, at a time when Montana was still a Territory of the United States, could not be divested under any subsequent legislation either of the Territory or of the State. While the United States may itself abrogate rights granted to the Indians under a treaty with them, it alone has this power, and unless such rights are abrogated by the United States itself by subsequent legislation it is well settled that all rights acquired by the Indians under the treaty are to be fully protected against invasion by other parties. The Cherokee Nation v. Georgia, 5 Pet. 1; United States v. Cook, 19 Wall. 591. MR. JUSTICE MCKENNA, after making the foregoing statement, delivered the opinion of the court. A question of jurisdiction is presented by the United States. Five of the defendants named in the bill failed to answer and a decree pro confesso was taken against them. The other defendants, appellants here, after the affirmance by the Circuit Court of Appeals of the interlocutory injunction, filed a joint and several answer. On this answer and the bill the case was heard and a decree entered against all of the defendants. From that decree the appellants here appealed to the Circuit Court of Appeals without joining therein the other five defendants. The contention is that the Circuit Court of Appeals had no jurisdiction and that this court has none, because the five defaulting defendants had such interest in the case and decree that they should have joined in the appeal, or proceedings should have been taken against them in the nature of summons and severance or its equivalent. The rule which requires the parties to a judgment or decree to join in an appeal or writ of error, or be detached from the right by some proper proceeding, or by their renunciation, is firmly established. But the rule only applies to joint judgments or decrees. In other words, when the interest of a de 1 Williams v. Bank of United States, 11 Wheat. 414; Owings v. Kincannon, 7 Pet. 399; Heirs of Wilson v. Insurance Company, 12 Pet. 140; Mussina v. Cavozos, 6 Wall. 355; Masterson v. Herndon, 10 Wall. 416; Hampton v. Rouse, 13 Wall. 187; Simpson v. Greeley, 20 Wall. 152; Feibelman v. Packard, 108 U. S. 14; Estis v. Trabue, 128 U. S. 225, 230; Mason v. United States, 136 U. S. 581; Dolan v. Jennings, 139 U. S. 385; Hardee v. Wilson, 146 U. S. 179; Inglehart v. Stansbury, 151 U. S. 68; Davis v. Mercantile Trust Company, 152 U. S. 590; Beardsley v. Railway, 158 U. S. 123, 127; Wilson v. Kiesel, 164 U. S. 248. 2 Todd v. Daniel, 16 Pet. 521, 523; Germain v. Mason, 12 Wall. 259; Forgay v. Conrad, 6 How. 201; Brewster v. Wakefield; 22 How. 118, 129; Milner v. Meek, 95 U. S. 252; Basket v. Hassell, 107 U. S. 602, 608; Hanrick fendant is separate from that of other defendants he may appeal without them. Does the case at bar come within the rule? The bill does not distinguish the acts of the defendants, but it does not necessarily imply that there was between them, in the diversion of the waters of Milk River, concert of action or union of interest. The answer to the bill is joint and several, and in effect avers separate rights, interests and action on the part of the defendants. In other words, whatever rights were asserted or admission of acts done by any one defendant had no dependence upon or relation to the acts of any other defendant in the appropriation or diversion of the water. If trespassers at all, they were separate trespassers. Joinder in one suit did not necessarily identify them. Besides, the defendants other than appellants defaulted. A decree pro confesso was entered against them, and thereafter, according to Equity Rule 19, the cause was required to proceed ex parte and the matter of the bill decreed by the court. Thomson v. Wooster, 114 U. S. 104. The decree was in due course made absolute, and granting that it might have been appealed from by the defaulting defendants, they would have been, as said in Thomson v. Wooster, absolutely barred and precluded from questioning its correctness, unless on the face of the bill it appeared manifest that it was erroneous and improperly granted. Their rights, therefore, were entirely different from those of the appellants; they were naked trespassers, and conceded by their.default the rights of the United States and the Indians, and were in no position to resist the prayer of the bill. But the appellants justified by counter rights and submitted those rights for judgment. There is nothing, therefore, in common between appellants and the other defendants. The motion to dismiss is denied and we proceed to the merits. The case, as we view it, turns on the agreement of May, 1888, resulting in the creation of Fort Belknap Reservation. In the construction of this agreement there are certain elements to v. Patrick, 119 U. S. 156; City Bank v. Hunter, 129 U. S. 557; Gilfillan v. McKee, 159 U. S. 303. |