dissenting with whom HANSCUM, District Judge, joins.
I differ from the majority with respect to three propositions and must dissent from the disposition made in the majority opinion. Except' for my three points of difference, I am in accord with the resolution of this case as set forth in that opinion. My three points of difference are: first, I do not agree that reserved water rights, to the extent that they properly are recognized under the reserved rights doctrine, should be limited in the manner suggested by the majority opinion; second, I believe that there should be a pragmatic limitation on the standard for quantification, the practicably irrigable acreage, which would eliminate those lands from the quantification formula which only could be irrigated by the construction of some future water project; and third, but most important, I do not believe that the reserved rights doctrine is applicable to that portion of the lands lying north of the “Big Wind River,” i.e., the ceded portion of the Wind River Indian Reservation.
The purpose of establishing an Indian reservation, such as the Wind River Indian Reservation, is to provide a homeland for Indian peoples. If one is to assume that, pursuant to the reserved rights doctrine relating to water, there is an implied reservation of those waters essential to accomplish the purpose of the reservation of land, then I cannot agree that the implied reservation of water with respect to the Wind River Indian Reservation should be limited, as the majority has held in approving the judgment of the district’court. The fault that I find with such a limitation is that it assumes that the Indian peoples will not enjoy the same style of evolution as other people, nor are they to have the benefits of modern civilization. I would understand that the homeland concept assumes that the homeland will not be a static place frozen in an instant of time but that the homeland will evolve and will be used in different ways as the Indian society develops. For that reason, I would hold that the implied reservation of water rights attaching to an Indian reservation assumes any use that is appropriate to the Indian homeland as it progresses and develops. The one thing that I would not assume is that using the reserved water as a salable commodity was contemplated in connection with the implied reservation of the water. I would limit its use to the territorial boundaries of the reservation.
Deeming it unnecessary to detail further the formula for allocation of water which involves the concept of practicably irrigable acreage (Arizona v. California, 460 U.S. 605, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)), I am convinced that there has to be some degree of pragmatism in determining practicably irrigable acreage. It is clear from the majority opinion that there was included in quantifying the water reserved to the Indian peoples lands not now irrigable but deemed to be practicably irrigable acreage upon the assumption of the development of future irrigation projects. I would be appalled, as most other concerned citizens should be, if the Congress of the United States, or any other governmental body, began expending money to develop water projects for irrigating these Wyoming lands when far more fertile lands in the midwestem states now are being removed from production due to poor market conditions. I am convinced that, because of this pragmatic concern, those lands which were included as practicably irrigable acreage, based upon the assumption of the construction of a future irrigation project, should not be included for the purpose of quantification of the Indian peoples’ water rights. They may be irrigable academically, but not as a matter of practicality, and I would require their exclusion from any quantification. For my purposes, this may be a moot point because I believe that hardly any of these lands are situated in the diminished portion of the Wind River Indian Reservation, the only lands to which reserved water rights can be attached.
My third concern is the error which has been committed in including lands north of the “Big Wind River” in the practicably irrigable acreage utilized for determining the quantification of the reserved water rights of the Indian peoples. In my judg*120ment, the majority has ignored the significance of precedent from this court, to which we should accord priority; has failed to recognize the specific treaty history attaching to the Wind River Indian Reservation; and has failed to perceive the rationale of federal authorities addressing the disestablishment of Indian reservations. I would hold that the ceded lands have not been a part of an Indian reservation since 1905; and, since the reserved rights doctrine relating to an implied reservation of water rights depends upon the existence of reserved federal lands, there are no reserved water rights which attach to the ceded portion of the Wind River Indian Reservation. The United States Congress declared that the Indian peoples did not need these lands for the purpose of furnishing them a homeland; and, if that purpose is not present, there cannot be any implied reservation of water.
Turning first to the precedent of our court because of the doctrine of stare deci-sis, on several occasions, we have addressed the implications of the Act of March 3, 1905, 33 Stat. 1016 (hereinafter Act of March 3, 1905), which approved the Second McLaughlin Agreement, negotiated with the Wind River Indian Reservation Shoshone and Arapahoe Tribes. Our decisions uniformly demonstrate recognition of state jurisdiction over the lands of the ceded portion of the Wind River Indian Reservation. In some instances, we relied upon the concept of “Indian country.” In this extraordinarily complex area of law, it seems important to promote rationality, if possible, and I would espouse a rule that for all practical purposes an “Indian homeland” and “Indian country” are one and the same.
In Merrill v. Bishop, 74 Wyo. 298, 287 P.2d 620 (1955), this court held that water rights appurtenant to lands situated in the ceded portion of the reservation could be perfected only by compliance with the statutory requirements of the State, thus unequivocally asserting jurisdiction over the management of water on the ceded portion of the reservation. The court expressed some doubt as to whether the reserved rights doctrine as to implied water rights, articulated in Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), pertained to the Wind River Indian Reservation, in light of Art. 8, § 1 of the Constitution of the State of Wyoming, which declares all water within the boundaries of the State to be the property of the State, and the adoption of that constitutional provision by the United States Congress in the Act of Admission, Act of July 10, 1890, 26 Stat. 222. The decision, however, was not premised on such broad grounds. The court said:
“ * * * And so we do not pass upon the right of the United States or the Indians in so far as it concerns water and lands that still remain within an Indian reservation. The federal government being in absolute control thereof and having complete jurisdiction there, the federal courts may hold that the water rights were impliedly reserved notwithstanding the broad language contained in the act of admission of Wyoming. * * * The lands involved in this action became a part of the public domain when Congress on March 3, 1905, approved the treaty of 1904. Furthermore, there is no evidence in the case that any of the Indian allotments here in question were granted pri- or to that time. So it is not necessary to consider what the law would be if these allotments had been granted while the lands herein involved were still contained in an Indian Reservation. It would seem then that the power to grant allotments after March 3, 1905, remained pursuant to that treaty, but only just as a power existed to acquire a homestead in that area, each with the qualification that water rights could be acquired only by appropriation thereof with a priority according to the time of the appropriation. If that were not so then if it should happen that there are still lands within the ceded area of 1904 that might now be allotted to Indians, he or they would then have a water right superior to all the rights acquired by appropriation during the last 75 years. To so hold would, we think, go beyond the mere protection of the weak against the strong. While Indi*121an rights are to be regarded favorably, that should be done within reasonable limits. That the Indian allottees herein were not ignorant of the laws of appropriation of water is clearly demonstrated by the evidence in this case.” Merrill v. Bishop, supra, 287 P.2d at 625.
The question in Blackburn v. State, Wyo., 357 P.2d 174, reh. denied 357 P.2d 1111 (1960), was criminal jurisdiction within the lands ceded pursuant to the Act of March 3, 1905. The argument was made that those lands were “Indian country,” and thus, the State of Wyoming had no criminal jurisdiction. The distinctive feature in Blackburn v. State, supra, was that the area in issue was located on the River-ton Irrigation Project, and compensation was authorized for those specific lands by the Act of August 15, 1953, 67 Stat. 592. Congress there provided for the sum of $1,009,500 to be credited and expended for the benefit of the Shoshone and Arapahoe Indians of the Wind River Indian Reservation:
“ * * * [T]o constitute full, complete, and final compensation, except as provided in section 5 of this Act, for terminating and extinguishing all of the right, title, estate, and interest, including minerals, gas and oil, of said Indian tribes and their members of, in and to the lands, interests in lands, and any and all past and future damages arising out of the cession to the United States, pursuant to the Act of March 3,1905 (33 Stat. 1016) of that part of the former Wind River Indian Reservation lying within the following described boundaries: * * *.”
In Blackburn v. State, supra, this court noted that the Act of August 15, 1953, 67 Stat. 592, was amended by the Act of August 27, 1958, 72 Stat. 935, which provided, in pertinent part:
“* * * [A]ll of the right, title, and interest of the United States in all minerals, including oil and gas, the Indian title, to which was extinguished by the Act of August 15, 1953 * * * is hereby declared to be held by the United States in trust for the Shoshone and Arapahoe Tribes
We held that any retained mineral interest for the Indian peoples, held in trust by the United States, did not suffice to make the lands “Indian country” as that term is used in 18 U.S.C.A., §§ 1151-1153. This court ruled that, despite a retained interest in mineral proceeds, Congress had extinguished Indian title to the ceded lands.
“ * * * Construing the Acts of Congress together, we think, as the trial court held, that the title of the Indians to the lands in the territory here involved has been extinguished and that the only right reserved to the Indians is in the money or proceeds received by the United States from the sale or lease of any rights in the land.” Blackburn v. State, supra, 357 P.2d at 179.
While this court did rely, in part, on the effect of congressional acts, other than the Act of March 3, 1905, in deciding Blackburn v. State, supra, it is clear that the same decision would have been reached relying solely on that Act. We quoted from Application of De Marrias, 77 S.D. 294, 91 N.W.2d 480, 482-483 (1958), as follows:
“‘* * * It is provided in the Act of Congress ratifying the agreement of 1889: “That the lands by said agreement ceded, sold, relinquished, and conveyed to the United States shall immediately, * * * be subject only to entry and settlement under the homestead and townsite laws of the United States, excepting the sixteenth and thirty-sixth sections of said lands, which shall be reserved for common school purposes, and be subject to the laws of the State wherein located: * * *.” Section 30, Chapter 543, 1891 (26 United States Statutes at Large, p. 1039). * * *
“ ‘It is readily apparent therefrom that the City of Sisseton is not situated on “land within the limits of any reservation.” Consequently it is not within the purview of the term “Indian country” as defined and used in Sections 1151, 1152, and 1153 of Title 18 U.S.C.A.’
“The foregoing italicized words are not contained in the Congressional Act of March 3, 1905, but we think that the *122intent is not different. See also Tooisgah v. United States, 10th Cir., 186 F.2d 93 [1950]. The instant contentions of appellants are overruled.” Blackburn v. State, supra, 357 P.2d at 179-180. (Emphasis in original.)
A very similar jurisdictional question arose in State v. Moss, Wyo., 471 P.2d 333 (1970). The situs of the crime in that case was on property within the town of River-ton, Wyoming, which is situated on a portion of the lands ceded under the Act of March 3, 1905, and the court consistently held that Wyoming had jurisdiction over such lands which had not been returned to tribal ownership. The district court had dismissed a criminal information charging Moss, ruling that the State of Wyoming lacked jurisdiction over an Indian person in the town of Riverton. The State brought a bill of exceptions which this court sustained, holding that jurisdiction did exist. The court said:
“Ramified as is the recounted legislative and treaty history of the original reservation, the solution of our problem turns on two points, was the treaty and 1905 Act a disestablishment of the reservation as to portions ceded, and if so, what was the effect of the 1939 Act.” State v. Moss, supra, 471 P.2d at 335.
This court did not give controlling effect to Blackburn v. State, supra, saying:
“ * * * There a different area, a portion of the Riverton reclamation project, was under consideration; and while that site had been a part of the cession effected by the 1905 Act, it had also been the subject of the 1953 Act providing compensation to the Shoshone and Arapahoe Tribes ‘deemed to constitute full, complete, and final compensation, * * * and extinguishing all of the right, title, estate, and interest * * * to the lands * * *.' ” State v. Moss, supra, 471 P.2d at 337.
Instead, the court limited its rationale to the effect of the Act of March 3, 1905 and held that, despite Art. 9 of that statute, which created a trust relationship in favor of the Shoshone and Arapahoe tribes by the United States, Indian title had been extinguished as to the ceded portion of the Wind River Indian Reservation. The court quoted from United States v. La Plant, 200 F. 92 (D.C.S.D.1911), the part in which the federal court had addressed earlier the effect of a provision very similar to Art. 9 of the Act of March 3, 1905:
“ ‘ * * * That section declares that the United States does not guarantee to find a purchaser for the land, does not agree to buy the land, and acts only as trustee. But a trustee has not only the legal title, but he has also the right to possession, and the fact that the government is to act as trustee for the Indians does not indicate that their title has not been extinguished. There is nothing in section 9 providing that if the land is not sold it shall be turned back to the Indians. The government simply agrees to hold the money realized from the sale of the land, whenever it receives it, for the benefit of the Indians.’ ” State v. Moss, supra, 471 P.2d at 337, quoting United States v. La Plant, supra, 200 F. at 94.
This court also quoted favorably from State ex rel. Hollow Horn Bear v. Jameson, 77 S.D. 527, 95 N.W.2d 181 (1959), which had construed an act “parallel” to the Act of March 3, 1905, relying on United States v. Pelican, 232 U.S. 442, 34 S.Ct. 396, 58 L.Ed. 676 (1914), and Putnam v. United States, 248 F.2d 292 (8th Cir.1957). The adopted language states that the Act (36 Stat. 440), described by our court to be parallel to the Act of March 3, 1905:
“ ‘ * * * [W]as motivated by a congressional purpose to reduce the area of Pine Ridge * * *. In effect it separated the reservation into two parts. That which the act denominates as the “diminished” reservation, and which we elect to refer to as the “closed” portion of the reservation, was to remain unchanged and to continue to serve the purposes of the government in protecting and dealing with the whole Indian population of the reservation as in the past. The remainder of the reservation, which we will refer' to as the “open” portion of the reservation, was to undergo change through a process of settlement into homesteads and townsites. It was con*123templated that most of this surplus area would ultimately be settled, patented in fee, and cease to be a part of the reservation and within Indian country. There is no indication that allotted lands in this open area were reserved and excepted to serve the interest of the Pine Ridge Indians as a whole. It seems apparent that the principal reason for reserving these scattered outlying tracts was to permit the government to respond completely to its obligations to the respective allottees of these tracts. It is equally apparent that as the Indian title to each of these tracts was extinguished they would cease to serve in furthering any phase of the functions of the government in ministering unto its Indian wards. Thereafter such a tract would bear no different relation to those functions than would an adjoining tract of the open area, the Indian title to which had been extinguished by a homestead patent to a settler. Because the Congress obviously did not contemplate the use of these outlying allotted tracts for any purpose in connection with the superintendence and protection of its Indian wards after the Indian title thereto had been extinguished, we are persuaded that after such an extin-guishment it intended they should cease to be both a part of the reservation and of the Indian country.” State v. Moss, supra, 471 P.2d at 338, quoting State ex rel. Hollow Horn Bear v. Jameson, supra, 95 N.W.2d at 184-185.
The court concluded that the Act of March 3, 1905 had the effect of extinguishing Indian title and demonstrated an intent that the land should cease to be a part of the reservation and of “Indian country.” This court also considered the effect of the Act of July 27, 1939, 53 Stat. 1128, describing this latter statute as one which:
“ * * * [I]nter alia, directed the Secretary of'the Interior to establish land-use districts within the diminished and ceded portions of the Wind River Indian Reservation, to restore to tribal ownership all undisposed-of surplus or ceded lands within the land-use districts not under lease or permit to non-Indians, and to restore the balance of said lands progressively as the non-Indian owned land within a given land-use district were acquired.” State v. Moss, supra, 471 P.2d at 335.
The court was satisfied that the lands within the corporate limits of Riverton had not been included in any of the restoration orders pursuant to that statute and simply observed that “ * * * on its face it restored nothing but rather directed the Secretary of the Interior to restore in certain instances the ceded lands.” State v. Moss, supra, 471 P.2d at 339.
In my view, the decisions of this court, premised on a finding that the ceded portion was disestablished, are supported by further investigation into the language of the treaty and the statutory history of the Wind River Indian Reservation. The language incorporated in the 1904 Agreement, which was approved by the Act of March 3, 1905, is substantially the same as that which Congress used to ratify and amend three agreements with the Indians of the Rosebud Reservation. Act of April 23, 1904, 33 Stat. 254; Act of March 2, 1907, 34 Stat. 1230; Act of May 30, 1910, 36 Stat. 448. Article I of the 1904 Agreement provided in pertinent part:
“The said Indians belonging on the Shoshone or Wind River Reservation, Wyoming, for the consideration hereinafter named, do hereby cede, grant, and relinquish to the United States, all right, title, and interest which they may have had to all the lands embraced within the said reservation, except the lands within and bounded by the following described lines: * * (Emphasis added.)
Article II provided in pertinent part:
“In consideration of the lands ceded, granted, relinquished, and conveyed by Article I of this agreement, the United States stipulates and agrees to dispose of the same as hereinafter provided under the provisions of the homestead, town-site, coal and mineral land laws, or by sale for cash as hereinafter provided at the following prices per acre: * * *.” (Emphasis added.)
Examination of other aspects of the 1904 Agreement confirms that it was the inten*124tion of Congress to disestablish the ceded portion as an Indian reservation and to leave a diminished reservation for the Shoshone and Arapahoe Tribes. In Article III, there is a provision for a sum of $85,000 from the sale of the lands to be used to make a per capita payment of $50 within sixty days of the opening of the ceded lands to settlement. Any remaining balance from this sum set aside for per capita payment was to be used to do those things necessary to secure water rights for any lands remaining the property of the Indians “ * * * whether located within the territory to be ceded by this agreement or within the diminished reserve.” 1 Perhaps “diminished” was not a word of art in Indian law in 1904. See Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443, reh. denied 466 U.S. 948, 104 S.Ct. 2148, 80 L.Ed.2d 535 (1984), cert. denied - U.S. -, 107 S.Ct. 409, 93 L.Ed.2d 361 (1986). In the context in which it was used in the 1904 Agreement, however, it could indicate only the intent to diminish the boundaries of the then-existing reservation. See Oregon Department of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 760, 105 S.Ct. 3420, 3425 n. 11, 87 L.Ed.2d 542 (1985) (indicating express use of the term “diminished reservation” is some indication of congressional intent).
Two other articles in the 1904 Agreement manifest an intent that funds be expended for development of the reservation but only within the diminished reservation. Article IY provided for $150,000 to be expended on an irrigation system “within the diminished reservation.” Article VI provided for $50,-000 to be expended for “the erection of school buildings and maintenance of schools on the diminished reservation.” Further, Article IX of the 1904 Agreement was amended by the Act of March 3, 1905 to include an appropriation of $35,000 for the “survey and field and office examination of the unsurveyed portions of the ceded lands, and the survey and marking of the outboundaries of the diminished reservation, where the same is not a natural water boundary; * * *.” This provision manifests an intent to set apart the diminished reservation by establishing boundaries between the diminished and ceded portions. Taken together, the language of the 1904 Agreement expresses a congressional intent to disestablish the ceded portion from the then-existing reservation with the result being a diminished Wind River Indian Reservation.
The amplification of the statutory history demonstrates that Congress intended to disestablish the ceded portion of the reservation, consistent with the prior holdings of this court. The Wind River Indian Reservation was established by Congress as a Shoshone Reservation on July 3,1868, upon the execution of the Second Treaty of Fort Bridger with the Shoshone and Bannock Indians. In 1878, the Arapahoe Indians were quartered on the reservation, and it subsequently became a joint reservation for the Shoshone and Arapahoe Tribes. Congressional efforts to reduce the size of *125the reservation culminated, on October 2, 1891, in an agreement which was reached with the Shoshone and Arapahoe Indians of the Wind River Reservation for the cession of approximately 1,100,000 acres for a consideration of $600,000. H.R.Exec.Doc. No. 70, 52d Cong., 1st Sess., at 23 (1892). The chairman of the commission which had been appointed to negotiate the agreement refused to execute it, however, with his principal reason being that it left the Indians with too much land.
“The Indians are left as now with too much land. The same complaints which their superabundance of land now gives rise to must necessarily continue. They surrender what is comparatively a small portion of their reservation, considering its value, and a portion from which but little of their former troubles have arisen. The part surrendered is comparatively worthless, and they propose to receive for it what, in the best possible light, is an exorbitant price.” H.R.Exec. Doc. No. 70, supra, at 21.
Congress followed the recommendations of the chairman and did not ratify the 1891 Agreement. Instead, Congress authorized the reopening of negotiations for the cession of a larger portion of the reservation. Act of July 13, 1892, 27 Stat. 120.
In January, 1893, a new commission was sent to negotiate but with orders to reduce the Wind River Indian Reservation to 300,-000 acres. That commission determined, however, that 650,000 acres were needed for purposes of the reservation. H.R.Exec. Doc. No. 51, 53d Cong., 2d Sess., at 13 (1894). In the course of these negotiations, the representatives of the Indian peoples manifested a desire to sell a large portion of the reservation, which they felt white ranchers were using without payment or permission, but they refused to sell any portion of the reservation south of the Wind River. Chief Washakie of the Shoshone Tribe expressed their position:
“I guess we will not trade, I tell you now that I will not sell this land on the south side, I am done talking about it.” H.R. Exec.Doc. No. 51, supra, at 18.
There is no record of any further negotiations of significance until April 21, 1896, when Inspector James McLaughlin successfully negotiated an agreement to cede 55,-040 acres for $60,000, including some hot springs (Thermopolis) which the government desired to open for public use. That agreement was approved by Congress on June 7, 1897. S.Doc. No. 247, 54th Cong., 1st Sess. (1896); H.R.Doc. No. 5, 55th Cong., 2d Sess., at 34-36, 406-408 (1897). Although not related directly to subsequent negotiations, this agreement did set the stage for negotiations that later led to the passage of the Act of March 3, 1905. See J. McLaughlin, My Friend the Indian, ch. XXVII (1910); L. Pfaller, James McLaughlin, The Man with an Indian Heart, ch. XIII (1978).
On March 4, 1904, Representative Mon-dell of Wyoming introduced H.R. 13481 entitled “A Bill to ratify and amend an agreement with the Indians residing on the Shoshone or Wind River Indian Reservation, in the State of Wyoming, and to make appropriations for carrying the same into effect.” 38 Cong.Rec. at 2843 (1904), printed in entirety in 38 Cong.Rec. at 5245-5247 (1904). Among the purposes of this bill was ratification of the 1891 Agreement, but it, in fact, included substantial amendments to that agreement, providing, among other things, for a larger cession of land and a change in the manner of payment from a sum certain to proceeds from the sale of the land. H.R.Rep. No. 2355, 58th Cong., 2d Sess. (1904). The purpose of the bill was exactly the same as that of the agreement: to reduce the size of the Wind River Indian Reservation to an area better suited to the needs of the Indians and the United States. The Committee on Indian Affairs commented on H.R. 13481:
“H.R. No._proposes to reduce the reservation, as suggested by Mr. Wood-ruff at the time of the making of the Agreement of 1891, and in this connection it should be remembered that the instructions to the commission in 1891 were to reduce the reservation from 650,-000 to 700,000 acres. The bill in question still leaves the Indians with 808,500 acres. A careful estimate by the General *126Land Office gives the area of the lands proposed to be ceded by the above bill at 1,480,000 acres, leaving 808,500 acres in the diminished reserve. There are 1,650 Indians on the reservation at this time, so that the diminished reserve leaves about 500 acres per Indian man, woman, and child, on the reservation.
“The diminished reserve is by all means the best portion of it, although there are some good lands in the ceded tract. The diminished reserve is, however, a particularly well-watered, well-grassed country, a considerable portion of which is susceptible of irrigation, several thousand acres being now under irrigation and farmed by the Indians.” H.R.Rep. No. 2355, supra, at 3.
The Committee on Indian Affairs favored Mondell’s bill but suggested an amendment requiring the consent of the Indian peoples. H.R.Rep. No. 2355, supra at 2. James McLaughlin, the United States Indian Inspector who had negotiated successfully the Rosebud and Devil’s Lake Agreements and the 1896 Agreement with the Indians of the Wind River Reservation, was chosen to seek the consent of the Shoshone and Arapahoe Tribes to the amendment. McLaughlin arrived at the Wind River Indian Reservation on April 15, 1904, and, six days later, he reached an agreement which he described in this way:
“ * * * [Ajlong the lines of the ‘Mondell Bill’ as to boundaries and manner of payment, but with some modifications of certain of its provisions, which, as I regard it, is in the interests of the Government and, at the same time, more beneficial and pleasing to the Indians.” Letters of James McLaughlin (Microfilm Roll 26 at 12).
It is reflected in the minutes of the council meeting at which this agreement was discussed that both Inspector McLaughlin and the representatives of the Indian peoples understood that Congress intended the sale of a large portion of the Wind River Indian Reservation, for which compensation was to be made in accordance with the Mondell Bill.
“ * * * The President and the Secretary of the Interior are desirous to have you sell your surplus lands and open them to settlement as much so as Congress, but at the same time, they are desirous to see that the Indians have full compensation for such lands ceded to the government. For several years past there has been a sentiment in Congress, and one that is growing stronger each succeeding year, opposed to paying the Indians a lump sum consideration for their lands. Instead of stipulating, or providing in the agreement, a lump sum consideration for any tract of land, they have determined upon giving the Indians the full benefit of the land by paying the Indians from the proceeds of the sale of the land as white men settle upon it. Several agreements with tribes of Indians that provided for a lump sum consideration which were presented to Congress the past two years have not been ratified, for the reason that Congress has refused to act upon any such agreements, and the said agreements have had to be changed before they could be carried out. I have made this explanation that you may know my reasons for not being able to entertain a proposition from you people for a lump sum consideration. Understand that anything you may receive from these lands will be paid to you from the proceeds of sales of same to white men.
* * * * * *
“In days gone by, years ago, when your reservation was set apart, large reservations were possible, because the white man did not desire the lands, but the tide of immigration is now pressing from both east and west, white men are clamoring for additional lands, and all lands that the Indians have no need of, must be opened for settlement, the department having charge of the Indians cannot prevent it, and can only secure them by giving them homes and allotments in sev-eralty, and that is why I am here today, to present to you an agreement for disposing of the lands that you do not need. “For the purpose of having the surplus lands of your reservation open to settle*127ment and realizing money from the sale of that land, which will provide yon with means to make yourselves comfortable upon your reservation, a bill has been introduced in Congress called the ‘Mon-dell Bill,’ which I will read. It has been presented and reported favorable from the Committee on Indian Affairs of the House, and is now awaiting action on the part of you people before it is taken up in the Senate.” (Thereafter the Mondell Bill was read to the Indians by Inspector McLaughlin.) McLaughlin Letters (Microfilm Roll 26 at 26-27).
There can be no question that the representatives of the Indian peoples understood that the agreement and the bill contemplated an outright sale of a large portion of the Wind River Indian Reservation. Among the remarks of the participants were:
LONE BEAR, ARAPAHOE:
“I understand what he comes for, and I will let him know what I think of it, and I will tell what part of the Reservation I want to sell.”
REVEREND SHERMAN COOLIDGE, ARAPAHOE:
“I am glad that Major McLaughlin has come to us to purchase a portion of our reservation. The proposed ceded portion has not been used by us except for grazing purposes, and I think cash money will be of more value among the Arapahoes and Shoshones. I am in favor of the ‘Mondell Bill’ along the lines, with slight changes that we discussed with the Shoshones last night.”
GEORGE TERRY, SHOSHONE:
“It is not like selling a wagon, a horse, or something of that nature, but it is something we are parting with forever, and can never recover again.”
McLaughlin Letters (Microfilm Roll 26 at 32, 35 and 40.)
Clearly, the Indian representatives understood the Mondell Bill. They suggested changes in certain provisions relating to the expenditure of the moneys to be received from the sale of the lands and requested a resurvey of the western boundary of the diminished portion of the reservation to make it conform with the 1868 treaty. They also requested a provision that the agreement require the signatures of a majority of male Indians over eighteen from both tribes. Inspector McLaughlin reported on his negotiations with the Indian peoples in this way:
“The diminished reservation leaves the Indians the most desirable and valuable portion of the Wind River Reservation and the garden spot of that section of the country. It is bounded on the north by the Big Wind River, on the east and southeast by the Big Popo-Agie River, which, being never failing streams carrying a considerable volume of water, give natural boundaries with well-defined lines; and the diminished reservation, approximately 808,000 acres, about three-fourths of which is irrigable land, allows 490 acres each for the 1,650 Indians now belonging on the reservation. I gave this question a great deal of thought and considered every phase of it very carefully and became convinced that the reservation boundary, as stipulated in the agreement, was ample for the needs of the Indians belonging thereto; that by including any portion of the lands north of the Big Wind River or east of the Big Popo-Agie River in the diminished reservation it would only be a short time until the whites would be clamoring to have it open to settlement, and the Indians would be eventually compelled to give it up. Furthermore, with the exception of about 20 families (mixed bloods and white men who are intermarried into the tribes) there are no Indians occupying lands outside of the diminished reservation.” Letter of James McLaughlin, United States Indian Inspector, to the Secretary of Interior, April 25, 1904, printed in full in H.R.Rep. No. 3700, 58th Cong., 3d Sess., supra, pt. 1, at 15-19.
The Mondell Bill, H.R. 13481, resembled the preceding 1891 Agreement in that it proposed to disestablish the ceded portion of the then-existing Wind River Indian Reservation resulting in a diminished reserva*128tion to be inhabited by the Shoshone and Arapahoe Indians. That particular bill, however, was not adopted by Congress. Changes to the bill which had been suggested by the Indian peoples and accepted by Congress, along with further amendments to the bill such as the Asmus Boysen provision2 made it necessary that a new bill “be passed in lieu of H.R. 13481.” The new bill was H.R. 17994. See H.R.Rep. No. 3700, supra, pt. 1, at 1-3. This is the bill which, after extensive debate in both houses and the adoption of a committee resolution relating to a disagreement between the House of Representatives and the Senate, ultimately passed as the Act of March 3, 1905. The intent of H.R. 17994 was consistent with and very much the same as that of H.R. 13481 and the 1891 Agreement.3
From the initial negotiation in 1891 to passage of the Act of March 3, 1905, the history of the 1904 Agreement and the legislation demonstrate that Congress intended the cession of a large portion of the then-existing Wind River Indian Reservation by disestablishing the ceded portion and recognizing a diminished reservation. The provisions of the Act of March 3, 1905, H.R. 17994, were considered most carefully by Congress. Congressman Mondell had continued with his efforts to have H.R. 13481 passed through both houses while James McLaughlin remained in Wyoming. Congressman Mondell had offered amendments to conform to suggestions by the Committee on Indian Affairs, and as amended, the House had passed the bill. 38 Cong.Rec., supra, at 5247-5248. The bill then had been read in the Senate and referred to the Senate Committee on Indian Affairs. 38 Cong.Rec., supra, at 5294. The Senate Committee had recommended passage with additional amendments. 38 Cong.Rec., supra, at 5671; S.Rep. No. 2621, *12950th Cong., 2d Sess. (1904), and the bill had been passed with amendments by the Senate on April 27,1904. 38 Cong.Rec., supra, at 5707. The House was unable to accede to the Senate amendments before that session of Congress adjourned.
When H.R. 17994 was offered in the third session by Representative Marshall, in lieu of H.R. 13481, its purpose was to amend and ratify the April 21, 1904 Agreement with the Indian peoples residing on the Shoshone or Wind River Indian Reservation in the State of Wyoming. 39 Cong. Rec., at 1112 (1905). This new bill was sent to the House Committee on Indian Affairs, which split over the Asmus Boysen Amendment, but which also proposed the following amendment:
“Provided, that the constitution and laws of the State of Wyoming shall not operate to secure any rights, having priority to those members of the Shoshone tribe of Indians, to the use of the waters within the territory hereby open to sale and settlement, including Big Wind River and its tributaries, for purposes of irrigation of the lands comprised within such territory, until such time as the United States shall have perfected allotments to the members of the Shoshone Indian tribe, either from the lands to be opened for settlement or within the diminished reservation of said Indians, and completed the necessary steps under the law to secure the desired water rights for the said allotments.” H.R.Rep. No. 3700, supra, pt. 1 at 7.
When the bill was returned to the House, it was passed after considerable debate and some difficulty, and with the Boysen Amendment removed. The bill then went to the Senate and was referred to the Senate Committee on Indian Affairs. That committee reported back with the recommendation of passage with amendments. One of those was to reinsert a modified provision for the Boysen Amendment previously struck in the House. Yet another amendment removed the House amendment quoted above relating to the inhibition on settlers with respect to obtaining perfected water rights under Wyoming law before the Indians’ water rights could be perfected. The bill passed the Senate with these amendments and was sent back to the House. After a motion was passed to disagree with the Senate amendments, a conference committee was appointed. The recommendation of the conference committee was that the House should recede from disagreeing with the Senate amendments and after further debate the conference report was passed by the House. 39 Cong. Rec., supra, at 3886-3887. The bill then was sent in its final form to the president and enacted as the Act of March 3, 1905. 39 Cong.Rec., supra, at 3974, 4033.
Representative Marshall spoke on the floor of the House:
“Mr. Speaker, the gentleman from Wyoming [Mr. Mondell] has well said that this bill has had more careful consideration than any bill of this character that has been before the Indian Committee, and there is but one possible objection to it, and that is the objection to giving this preferential right to 640 acres to Mr. Boysen. I was chairman of the subcommittee that considered that question, and we considered it long and carefully and conscientiously, and ultimately decided that, as a matter of equity, Mr. Boysen was entitled to this preferential right.” 39 Cong.Rec., supra, at 1945.
It is of particular moment to note that an amendment to inhibit the operation of the constitution and laws of the State of Wyoming so as to secure any rights to the use of waters within the ceded territory was defeated.
The legislative history subsequent to the passage of the Act of March 3, 1905 demonstrates an understanding that the ceded portion of the Wind River Indian Reservation had been disestablished. A discussion on appropriations for the construction of an irrigation project on the Shoshone or Wind River Indian Reservation can be found in hearings before the House Committee on Indian Affairs relating to H.R. 12579. Indian Appropriation Bill, Hearings on H.R. 12579, Before the Senate Committee on Indian Affairs, 63d Cong., 2d Sess., at 279-281 (1914). In those hearings, Mr. Merritt *130offered the following clause to be attached as a provision to a $25,000 appropriation:
“Provided, That the use of so much water as may be necessary to supply for domestic, stock watering, and irrigation purposes, land allotted or to be allotted to Indians on the diminished Shoshone or Wind River Reservation, in Wyoming, or set aside for administrative purposes within said reservation is hereby reserved, and the failure of any individual Indian or Indians to make beneficial use of such water shall not operate in any manner to defeat his or her right thereto while said land is held in trust by the United States. All laws and parts of laws in conflict herewith are hereby repealed.”
Mr. Merritt then read from a memorandum which stated:
“ ‘The purpose of this and other similar legislation in this bill is to protect the rights of Indians to water on Indian reservations and on allotted Indian lands held under trust or by other patents containing restrictions on alienation.
“ ‘To establish more certainly and securely water rights of Indians is a matter of the greatest importance in administering satisfactorily their affairs. On a number of reservations where Indians have been allotted, the land is practically of no value for agricultural purposes without irrigation. Water on these reservations is a vital factor in developing the Indians living thereon so that they may become self-supporting and be raised to a higher standard of civilization.
“ ‘The Supreme Court in the case of Winters v. United States (207 U.S., 564), said that “The power of the government to reserve waters and exempt them from appropriation under the State laws is not denied, and could not be.”
“ ‘The Supreme Court further said in this case that there was an implied reservation for the benefit of the Indians of a sufficient amount of water from the Milk River for irrigation purposes which was not affected by the subsequent act of February 22, 1889 (25 Stat. L., 676), admitting Montana to the Union, and that the water of the Milk River cannot be diverted so as to prejudice the rights of the Indians by settlers on the public lands and those claiming riparian rights on that river.
“ ‘It is believed that the general principles laid down in the Winters case are applicable to all Indian reservations where there are no specific acts of Congress to the contrary. However, I find that the very favorable decision of the Supreme Court in the Winters case regarding the water rights of Indians has been practically nullified by various acts of Congress, and as a result of such legislation the water rights of Indians are now dependent on beneficial use in a number of reservations where the Government has been, and is now, spending large amounts of reimbursable funds, and by acts of Congress these water rights are subject to the laws of several of the States wherein these irrigation projects are located.’ ” Memorandum referred by Mr. Merritt, reported in Indian Appropriation Bill, Hearings on H.R. 12579, supra, at 280.
This statement of purpose is consistent with a policy, implemented following the passage of the Act of March 3, 1905, to encourage all of the Indians of the Wind River Reservation to reside only on the diminished portion. The annual report of the Secretary of Interior for 1906 included this comment:
“W.B. Hill, superintendent of irrigation, has been instructed to make surveys of ditches in use and of those necessary to be constructed on the Shoshone Reservation so as to give water to each allottee if possible and in order to apply for permit to appropriate waters under the laws of Wyoming. He was advised that in the beginning only such construction should be made as might be necessary to maintain priority of water rights and that any system of irrigation planned should be within the diminished reservation. In revising and completing allotments to the Indians on that reservation it is the policy of the Office to make new allotments within the diminished reservation, and to encourage Indians who have received al*131lotments north of Big Wind River to relinquish them and agree to take other lands in lieu thereof within their diminished reservation.” H.R.Doc. No. 5, 59th Cong., 1st Sess., at 155 (1905). Also see Letter to Walter B. Hill from Department of Interior, August 11, 1904; Act of August 1, 1914 (38 Stat. 582 § 24) (1914).
It is noteworthy that construction for an irrigation project was restricted to the diminished reservation; Congress was concerned with protecting the water rights of Indians on reservations and certain Indian allotments not within reservation boundaries; it was understood that despite Winters v. United States, supra, federal action might be necessary to protect Indian reservation water rights; and there was a complete absence of any concern for protecting any water rights appurtenant to the ceded lands, other than lands owned by Indian allottees. All this strongly indicates an understanding of Congress that a sufficient interest in the ceded land had not been retained by the Indians so that any reserved water rights appurtenant to the ceded portion were retained. See also Act of August 1, 1914 (38 Stat. 582, § 24, supra) (enacting H.R. 12579, as amended, and providing funds for construction of the irrigation system, roads and bridges within the diminished reservation manifesting an intent for the Indian peoples to corporately reside within the boundaries of the diminished reservation).
The intent to disestablish the ceded portion also is supported by the treatment in the 1904 Agreement of Sections 16 and 36 in those surveyed townships within the ceded portion of the reservation. An amendment to that agreement deleted a provision in Article II for the purchase of lands in lieu of Sections 16 and 36 of the ceded portion by the United States for $1.25 per acre. The deletion of this provision was accomplished by an amendment of Representative Mondell who explained that it was believed to leave Wyoming “authorized under the enabling act to take lieu land.” 38 Cong.Rec., supra, at 5247. The effect of this amendment is to demonstrate further the understanding of Congress that passage of the Act of March 3, 1905 not only would disestablish the ceded portion but also would extinguish Indian title to the ceded portion. The Wyoming Act of Admission provided that Sections 16 and 36 in every township in Wyoming were granted to the State for the support of common schools and provided that the State could select equivalent lands if Sections 16 and 36 had been sold or otherwise disposed of by the authority of any act of Congress. Act of July 10, 1890, 26 Stat. 222, § 4. The obvious concern of this amendment by Representative Mondell was that the Act of March 3, 1905 had the effect of removing the ceded portion from the disclaimer in Article 21, Section 26 of the Constitution of the State of Wyoming, disavowing any claim of a state interest in lands reserved for the Indians. Further, there was a concern that such provisions for school lands extended only to public federal lands. See Minnesota v. Hitchcock, 185 U.S. 373, 22 S.Ct. 650, 46 L.Ed. 954 (1902); Rosebud Sioux Tribe v. Kneip, supra, 430 U.S. at 601 n. 23, 97 S.Ct. at 1370 n. 23. If the effect of the Act of March 3, 1905 was to restore the ceded lands to the status of public federal lands and to avoid the inhibition of the Wyoming Constitution, then Wyoming could claim Sections 16 and 36 in townships on the ceded portion of the reservation. Since apparently no payment would be required by the United States for Sections 16 and 36, the amendment removed the requirement to pay for lieu lands selected because of the disposal of Sections 16 and 36. This proviso was different from that involved in Rosebud Sioux Tribe v. Kneip, supra, in which the United States had been required to purchase Sections 16 and 36 for the benefit of South Dakota. Unless the ceded portion was disestablished as a reservation, however, the amendment to delete the requirement to pay for lieu lands had no significance.
A parallel history with respect to the Wind River Indian Reservation developed in the executive branch of the federal government. The presidential proclamation of June 2, 1906 states:
*132“WHEREAS, By an agreement between the Shoshone and Arapahoe tribes of Indians, belonging to the Shoshone or Wind River reservation in the State of Wyoming, on the one part, and James McLaughlin, a United States Indian Inspector, on the other part, amended and ratified by act of Congress approved March third, nineteen hundred and five (33 Stat., 1016), the said Indian tribes ceded, granted, and relinquished to the United States all the right, title, and interest which they may have had to all of the unallotted lands embraced within said reservation, except the lands within and bounded by the following described lines:
* * * * * *
“NOW, THEREFORE, I, THEODORE ROOSEVELT, President of the United States of America, by virtue of the power in me vested by the said Act and Resolution of Congress, do hereby declare and make known that all the unal-lotted lands in the ceded portion of said reservation, except such as may at that time have been reserved for carrying out the provisions of said amended treaty relative to the rights of Asmus Boysen, allowing him to locate in accordance with the Government surveys not to exceed 640 acres in the form of a square, of mineral or coal lands in said reservation, and to purchase the same, will, on and after the fifteenth day of August, nineteen hundred and six, in the manner hereinafter prescribed, and not otherwise, be open to settlement, entry, and disposition under the general provisions of the homestead, townsite, coal, and mineral land laws of the United States.” 34 Stat., pt. 3, at 3208.
The language found in that proclamation expresses “an unambiguous, contemporaneous, statement, by the Nation’s Chief Executive, of a perceived disestablishment” of the ceded portion of the Wind River Indian Reservation. See Rosebud Sioux Tribe v. Kneip, supra, 430 U.S. at 602-603, 97 S.Ct. at 1371.
After passage of the Act of March 3, 1905, the Department of the Interior of the United States published maps of the Wind River Indian Reservation which reflect an understanding of the executive department that the Indian peoples had not retained a sufficient interest in the ceded portion of those lands to cause the Department of Interior to consider it an Indian reservation. The Department of the Interior’s map of the State of Wyoming for 1892 shows the Wind River or Shoshone Indian Reservation boundaries to exist as stated by treaties prior to the 1896 Agreement. The Department of the Interior’s map for 1900 shows the reservation slightly reduced by the cession under the 1896 Agreement. Similarly, the Department of the Interior’s maps for 1907 and 1912 reflect a dramatic decrease in the boundaries of the Wind River or Shoshone Indian Reservation, excluding the ceded land from that area known as the Wind River or Shoshone Indian Reservation. Dinsmore, A.F., compiler, State of Wyoming, United States Department of the Interior, General Land Office, 1892, scale 1:12, 1 sheet; King, H., compiler, Map of the State of Wyoming, United States Department of the Interior, General Land Office, 1900, scale 1:12, 1 sheet; Berthrong, I.P., compiler, State of Wyoming, United States Department of the Interior, General Land Office, 1907, scale 1:12, 1 sheet; Berthrong, I.P., compiler, State of Wyoming, United States Department of the Interior, General Land Office, 1912, scale 1:12, 1 sheet.
This legislative and executive history subsequent to the passage of the Act of March 3, 1905 supports only one conclusion: a status of an Indian reservation was intended and understood only for the diminished reservation; the Indians corporately would reside on the diminished reservation, and any of those who continued to live on the ceded portion would do so only as private allottees.
Finally, an understanding by the United States that the ceded portion was disestablished from the reservation is demonstrated by acquiescence in the decisions of this court upholding state jurisdiction over the ceded portion. The effect of this unquestioned and consistent exercise of jurisdic*133tion by the State of Wyoming over certain lands within the ceded portion is well expressed in Rosebud Sioux Tribe v. Kneip, supra, 430 U.S. at 604, 97 S.Ct. at 1372, 51 L.Ed.2d 660 (1977), in which the court said:
“ * * * [T]he fact that neither Congress nor the Department of Indian Affairs has sought to exercise its authority over this area, or to challenge the State’s exercise of authority is a factor entitled to weight as a part of the ‘jurisdictional history’.”
The cases decided by this court and the very intriguing legislative and executive department history all are compatible with federal precedent relating to the disestablishment of an Indian reservation. Disestablishment abrogates appurtenant rights. Implied water rights on Indian reservations, founded upon the reserved rights doctrine, are extinguished by acts of Congress inconsistent with recognition of their existence, even though they are not subject to state law concerning the abandonment or extinguishment of a water right. See United States v. Anderson, 591 F.Supp. 1 (E.D.Wash.1982). There appears to be no question that Congress may limit or extinguish Indian title,4 and any rights appurtenant to the title, without obtaining the consent of the Indian peoples. Solem v. Bartlett, supra; Rosebud Sioux Tribe v. Kneip, supra; Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed.2d 299 (1903); Ute Indian Tribe v. State of Utah, 716 F.2d 1298 (10th Cir.1983), cert. denied - U.S. -, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986).
The cases hold that when Congress extinguishes the title of Indian peoples to a portion of any land, any hunting and fishing rights appurtenant to the land, to the extent that recognition of such right is inconsistent with extinguishment of the title, is limited impliedly or extinguished also. Oregon Department of Fish and Wildlife v. Klamath Indian Tribe, supra; Puyallup Tribe, Inc. v. Department of Game of State of Washington, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689, reh. denied 393 U.S. 898, 89 S.Ct. 64, 21 L.Ed.2d 185 (1968); Ward v. Race Horse, 163 U.S. 504, 16 S.Ct. 1076, 41 L.Ed. 244 (1896). Cf. Menominee Tribe of Indians v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). In several cases, the Supreme Court of the United States has said that water rights implied because of the reserved rights doctrine are appurtenant to the federal lands actually set aside by Congress. See United States v. New Mexico, 438 U.S. 696, 698, 98 S.Ct. 3012, 3013, 57 L.Ed.2d 1052 (1978) (defining a federally implied reserved water right as one reserved for future use “on appurtenant lands withdrawn from the public domain for specific federal purposes”). See also Arizona v. California, supra; Cappaert v. United States, 426 U.S. 128, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976); Winters v. United States, supra.
The implied water right which is reserved is limited to that amount of water necessary to fulfill the purpose for which the land itself was reserved. Cappaert v. United States, supra. It should not matter what purpose the appurtenant rights were intended to accomplish, and the extinguishment of appurtenant water rights by implication should be as inevitable as the extin-guishment of appurtenant hunting and fishing rights by implication. Once the Congress determines that the land previously set aside for some federal purpose no longer is required for that purpose, any appurtenant water rights reserved by implication no longer are necessary to accomplish the purpose initially intended. The issue to be resolved is whether the congressional action demonstrates that the land no *134longer is required for the purpose for which it originally was reserved. The appropriate inquiry then is whether congressional action manifests an intent that land previously set aside for the purpose of the Shoshone or Wind River Indian Reservation no longer was required to accomplish the purpose of an Indian homeland.
The Supreme Court of the United States in several cases has recognized the relevant considerations to be pursued in determining whether Congress intended to disestablish a portion of the land from an existing reservation. See e.g., Solem v. Bartlett, supra; Rosebud Sioux Tribe v. Kneip, supra; Ute Indian Tribe v. State of Utah, supra.
“ * * * The underlying premise is that congressional intent will control. In determining this intent, we are cautioned to follow ‘the general rule that “[djoubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.” ’ The mere fact that a reservation has been open to settlement does not necessarily mean that the opened area has lost its reservation status. But the 'general rule’ does not command a determination that reservation status survives in the face of congressionally manifested intent to the contrary. In all cases, ‘the face of the Act,’ the ‘surrounding circumstances,’ and the ‘legislative history,’ are to be examined with an eye toward determining what congressional intent was.” (Citations omitted.) Rosebud Sioux Tribe v. Kneip, supra, 430 U.S. at 586-587, 97 S.Ct. at 1365.5
In Rosebud Sioux Tribe v. Kneip, supra, the Supreme Court construed treaty language substantially similar to the language in the 1904 Agreement relating to the Wind River Indian Reservation. The Supreme Court said that such language is “ ‘precisely suited’ ” to demonstrate an intent to disestablish a ceded portion of land from a reservation and creates “an unmistakable baseline purpose of disestablishment.” Rosebud Sioux Tribe v. Kneip, supra, 430 U.S. at 592, 597, 97 S.Ct. at 1366, 1368, quoting DeCoteau v. District County Court, 420 U.S. 425, 445, 95 S.Ct. 1082, *1351093, 43 L.Ed.2d 300 (1975). It appears that the face of the act approving the 1904 Agreement demonstrates an intent to disestablish the ceded portion. That intent is substantiated by an examination of the legislative history.6
The decisions of this court not only are consistent with the legislative history relating to the Wind River Indian Reservation but also are consistent with the conclusions of the Supreme Court of the United States in similar instances. “The face of the act,” the “surrounding circumstances,” and the “legislative history” all serve to manifest a congressional intent to disestablish the ceded portion of the Wind River Indian Reservation. It follows that the ceded portion has not been an Indian reservation, intended to supply an Indian homeland for the Shoshone and Arapahoe tribes since 1905. Under those circumstances, there is no justification for invoking the reserved rights doctrine with respect to those areas identified as practicably irrigable acreage on the ceded portion and including them in the quantification of water set aside for the Indian peoples. I would eliminate those lands from the formula in their entirety.
. An examination of the entire agreement, in light of prior events, discloses that any property outside the diminished reservation which remained under Indian ownership was limited to property which had been selected by individual Indians, under authority of the 1868 treaty and subsequent acts, and which was located on the portion to be ceded. It pertained to property which the individual Indian refused to exchange for a similar tract on the diminished reservation. Specific provision was made in Article I of the 1904 Agreement that: " * * * [A]ny individual Indian, a member of the Shoshone or Arapahoe tribes, who has, under existing laws or treaty stipulations, selected a tract of land within the portion of said reservation hereby ceded, shall be entitled to have the same allotted and confirmed to him or her, and any Indian who has made or received an allotment of land within the ceded territory shall have the right to surrender such allotment and select other lands within the diminished reserve in lieu thereof at any time before the lands hereby ceded shall be open for entry.” The legislative history demonstrates that the policy of the United States of America was to request all Indians to take allotments within the diminished reservation. It was believed that with the exception of 29 allot-tees, the Indian peoples would surrender their allotments on the lands which they had obtained under the 1868 treaty of Fort Bridger and " * * * select other lands within the diminished reservation, where there is an abundance of good land for the purpose, and which can be more readily and inexpensively irrigated.” H.R. Rep. No. 3700, 50th Cong., 3d Sess., pt. 1, at 19 (1905).
. This amendment was to Art. II of the 1904 Agreement to include a provision providing that one Asmus Boysen have a preferential choice of 640 acres in the ceded portion in exchange for any interest he had under a pre-existing mineral lease with the Shoshone and Arapahoe Indians on certain lands of the ceded portion. There was a dispute over this amendment because some members of the Indian Affairs Committee felt that Boysen’s interest would terminate automatically with the passage of the Act. Section 13 of Boysen’s lease did provide:
" ‘In the event of the extinguishment, with the consent of the Indians, of the Indian title to the lands covered by this lease, then and . thereupon this lease and all rights thereunder shall terminate.’” Quoted in H.R.Rep. No. 3700, 50th Cong., 3d Sess., pt. 2, at 3 (1905).
The minority report contended that, because of the granting language of the agreement, Indian title would be extinguished, and Boysen’s interest thereupon would disappear. Representative Lacey of Iowa had proposed the amendment to protect any interests that one of his constituents might have in Boysen’s lease. Representative Lacey argued that the provision was necessary because under the Mondell Bill the Indian title would not be lost until five years after entry by settlers. He argued that the trust would be burdened if the lease were not canceled in accordance with the amendment. Ultimately, the House and the Senate concurred in this amendment.
. The majority correctly perceive the 1896 Agreement, relating to the Thermopolis hot springs, as having divested the Indian peoples of any interest in the water rights to the portion of Wind River Indian Reservation ceded by that agreement. It is not clear why, having reached that conclusion, the 1891 Agreement, as approved by the Act of March 3, 1905, should lead to a different conclusion. The legislative history furnishes no hint that Congress might have perceived it was obtaining any lesser interest in the land under the 1904 Agreement than that which would have been obtained under the 1891 Agreement. The extensive debate on several provisions of the Act of March 3, 1905, coupled with the lack of any reference to the admission of an expressed cession of water rights under the Mondell Bill, indicates Congress did not perceive the provision as important. The reference to appertaining water rights, in the 1896 Agreement, should not be afforded any greater significance than that included in the October 2, 1891 Agreement, which also referred to appertaining water rights. The 1896 Agreement contained very similar language to the 1891 Agreement, and the 1891 Agreement substantially was implemented by the Act of March 3, 1905, which had very similar language to that included in the Rosebud Agreement. The Rosebud Agreement was debated extensively and passed by the House just prior to Representative Mondell’s introduction of H.R. 13481, a bill "to ratify and amend an agreement with the Indians residing on the Shoshone or Wind River Indian Reservation * * * *." See 38 Cong.Rec., at 1423, 1643, 1899 and 2843 (1904). Certainly, a sale for a sum certain, provided for in the 1891 and 1896 Agreements but not provided for in H.R. 13481 or H.R. 17994, could not be controlling. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977).
. Applying a strict concept of title, fee title to Indian lands has been vested in the United States of America under the doctrine of discovery, with the Indian peoples retaining a right to possess and occupy that land. Their right of occupancy is good against all except the sovereign, who may terminate the right at will, although perhaps just compensation must be provided prior to termination. See Oneida Indian Nation of New York State v. Oneida County, New York, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974); Shoshone Tribe of Indians v. United States, 299 U.S. 476, 57 S.Ct. 244, 81 L.Ed. 360 (1937). See generally F. Cohen, Handbook of Federal Indian Law, at 486-493 (1982); P. Maxfield, M. Dieterich & F. Trelease, Natural Resources Law on American Indian Lands, at 17-19 (1977).
. The Indian peoples who participated in the negotiation with respect to the 1904 Agreement do not appear to have been weak and defenseless as suggested in the quoted language. James McLaughlin described George Terry as a mixed blood spokesman for the Shoshone Indians “ * * * whose gift of language and acquirements made him a man to be regarded with some respect.” James McLaughlin, My Friend the Indian, at 296 (1910). George Terry spoke at the counsel meeting in April, 1904 and explained the Indian peoples’ understanding of the 1904 Agreement.
"Major McLaughlin, our worthy agent, Ladies and Gentlemen: This is no little bargain we are entering into. It is not like selling a wagon, horse, or something of that nature, but it is something we are parting with forever, and can never recover again. These lands that we are about to dispose of have been our lands for ages. They have been our lands by inheritance for many, many years before the white man came this way. These same lands have been our lands by conquest. Our fathers fought with every nation that came near them and came off victorious, and from that date to this, they held this land as their own. These lands are our lands by treaty stipulations. We have given up vast tracts for this little tract of land called the Wind River Reservation. Now, we are glad our Arapahoe friends came in, and we will join hands with them and endeavor to pass a measure here that will follow the lines of this ‘Mondell bill.’ ’’ Minutes of Council Meeting at the Wind River Reservation, April, 1904, Letters of Inspector James McLaughlin, Microfilm Roll 26 at 40.
Concluding his remarks, Terry said:
"Now, Major, We all thank you very much for the feast, but we want it understood, that we do not give our consent to your agreement because you have filled us with beef, bacon, sugar, flour and coffee. It has gone upon record that all the white man has to do, to get the consent of the Indian to anything he desires, is to fill him up with what he likes. I want it to go on record, that notwithstanding the fact that we have been feasted, we have considered this bill in a sober and thoughtful manner, and for the benefit of every man, woman, and child on the reservation.” Minutes of Council Meeting at the Wind River Reservation, April, 1904, Letters of McLaughlin, supra, Microfilm Roll 26 at 43.
Of course, the understanding of the Indian peoples is relevant only to the extent that it explains Congressional intent because the actions of Congress in diminishing an Indian reservation do not depend on consent of the Indians. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977); Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed.2d 299 (1903).
. The dissenting opinion in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977), notes that the manner of payment was not approved by the required majority of the Indians. This resulted in concerns by the dissenting justices as to compliance with the legal meaning of the word "cede.” In the case of the 1904 Agreement as to the Wind River Reservation, the manner of payment expressly was discussed with the Indian representatives from the Wind River Reservation, and they agreed to it. While the special master decided that Rosebud Sioux Tribe v. Kneip, supra, is distinguishable because the word “convey” was omitted in Article I of the 1904 Agreement, that conclusion fails to acknowledge the inclusion of the word “convey" in Article II, which refers back to Article I and, in my judgment, places undue emphasis on the omission of the word in Article I.