457 F.Supp. 599 (D.Mont. 1978), CV-75-105, United States v. State of Montana

Docket Nº:CV-75-105-BLG.
Citation:457 F.Supp. 599
Party Name:The UNITED STATES of America, in its own right and as fiduciary on behalf of the Crow Tribe of Indians and the Crow Tribe of Indians, as intervenors, Plaintiffs, v. The STATE OF MONTANA, Montana State Fish and Game Commission, Willis B. Jones, Arnold Rieder, Arthur C. Hagenston, Joseph J. Klabunde, W. Leslie Pengelly, Wesley R. Woodgerd, and Big Ho
Case Date:July 31, 1978
Court:United States District Courts, 9th Circuit, District of Montana
 
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Page 599

457 F.Supp. 599 (D.Mont. 1978)

The UNITED STATES of America, in its own right and as fiduciary on behalf of the Crow Tribe of Indians and the Crow Tribe of Indians, as intervenors, Plaintiffs,

v.

The STATE OF MONTANA, Montana State Fish and Game Commission, Willis B. Jones, Arnold Rieder, Arthur C. Hagenston, Joseph J. Klabunde, W. Leslie Pengelly, Wesley R. Woodgerd, and Big Horn Rod and Gun Club and Citizens' Rights Organization, as intervenors, Defendants.

The STATE OF MONTANA, Montana State Fish and Game Commission, Willis B. Jones, Arnold Rieder, Arthur C. Hagenston, Joseph J. Klabunde, W. Leslie Pengelly, and Wesley R. Woodgerd, on behalf of themselves and on behalf of the citizens of the State of Montana and of the United States of America and the public and as representatives of all non-Crow Indian owners of real property within the Crow Indian Reservation, and Big Horn Rod and Gun Club, and Citizens' Rights Organization, as intervenors, Cross-Claimants,

v.

The UNITED STATES of America, in its own right and as fiduciary of the Crow Tribe of Indians, and the Crow Tribe of Indians, Cross-Defendants.

No. CV-75-105-BLG.

United States District Court, D. Montana, Billings Division.

July 31, 1978

Page 600

Steven E. Carroll, Dept. of Justice, Washington, D.C., for The United states.

Thomas J. Lynaugh, Thomas K. Schoppert, Lynaugh, Fitzgerald, Schoppert, Skaggs & Essman, Billings, Mont., R. Anthony Rogers, Charles A. Hobbs, Wilkinson, Cragun & Barker, Washington, D.C., for Crow Tribe of Indians.

Michael Greely, Atty. Gen., Helena, Mont., Urban L. Roth, Sp. Asst. Atty. Gen., Butte, Mont., for the State of Montana.

Clayton R. Herron, Sp. Asst. Atty. Gen., Helena, Mont., for Fish and Game Commission.

Bert W. Kronmiller, James E. Seykora, Hardin, Mont., for Big Horn Rod and Gun Club.

Douglas Y. Freeman, Hardin, Mont., for Citizens' Rights Organization.

OPINION

BATTIN, District Judge.

This case seeks to quiet title to the bed and banks of the Big Horn River. A corollary issue requires a determination of whether the State of Montana has the authority to regulate hunting and fishing within the exterior boundaries of the Crow Indian Reservation by non-Indian persons, since the Crow Tribe purportedly has an exclusive treaty right to reservation hunting and fishing. The final issue is whether the State of Montana, acting through the auspices of the State Fish and Game Department, is lawfully asserting authority to regulate hunting and fishing by non-Indian persons within the exterior boundaries of the Crow Indian Reservation.

The case was tried before the Court, sitting without a jury, on June 27, 1978. An extensive and laudatory record has been made. The Court, having considered the evidence adduced at trial, the testimony of the witnesses, and the exhaustive legal arguments presented by counsel for each of the parties, finds as follows:

(1) That the State of Montana owns the bed and banks of the Big Horn River and that the same are not held in trust by the United States of America for the use and benefit of the Crow Tribe of Indians. United States v. Finch, D.C., 395 F.Supp. 205 (1975); 1

Page 601

(2) The State of Montana has authority to regulate hunting and fishing, by non-Indians on the Crow Indian Reservation, and Montana's fish and game laws apply to such persons. United States v. Sanford, 547 F.2d 1085, 1089 (9th Cir. 1976); 2 and

(3) The State of Montana is properly acting within its power and authority in regulating hunting and fishing by non-Indian persons within the exterior boundaries of the Crow Indian Reservation.

I. JURISDICTION

Subject matter jurisdiction over this cause exists in the District Court by virtue of 28 U.S.C. ss 1345 and 1362. Venue is proper, as all the defendants reside within the District. A case or controversy exists between each of the plaintiffs and each of the defendants as to the title to the bed and banks of the Big Horn River to the high water mark and as to which governmental entity has authority to regulate hunting and fishing within the exterior boundaries of the Reservation. The plaintiffs have no adequate remedy at law and are entitled to bring this action for declaratory relief.

II. FACTS

The history and negotiations of the treaties which are considered in this action were discussed in detail by the Court of Claims in the case of the Crow Tribe of Indians v. United States, 284 F.2d 361, 151 Ct.Cl. 281 (1960); Crow Nation v. United States, 81 Ct.Cl. 238 (1935); and Fort Berthold Tribe of Indians v. United States, 71 Ct.Cl. 308 (1930). Thus, it is unnecessary to elaborately discuss the treaty background and the history need not exhaustively be repeated here. It is necessary as a preliminary matter to extract from the record the factual basis upon which the Court has determined the ownership of the bed and banks of the Big Horn River.

The present Crow Indian Reservation is part of a large tract recognized as Crow lands by the Treaty of Fort Laramie of 1851, 11 Stat. 749, 2 C. Kappler, Indian Affairs: Laws and Treaties 594 (hereinafter cited as "Kapp."). The treaty with the Crows of 1868, 15 Stat. 649, 2 Kapp. 1008, carved out from the 1851 territory a reservation of some 8,000,000 acres for the Crow Indians. The Reservation was further diminished in size by subsequent Acts of the Congress, See, 22 Stat. 42 (1882); 26 Stat. 989 (1891); 33 Stat. 352 (1904); 50 Stat. 884 (1937). 3

The Big Horn River is a navigable watercourse which traverses the heart of the Crow Indian Reservation from south to north. Prior to 1851, the United States owned the bed of the Big Horn River. The United States retained the ownership of the bed of the Big Horn River as public lands, during the time it entered into the treaties with the Crow Nation. Because it so retained the bed, the bed and the river passed to the State of Montana upon Montana's admission to the Union.

Page 602

The Crow Tribe of Indians is not indigenous historically to either Montana or Wyoming. The roots of this nomadic people were formed in Canada near the Winnepeg Lake area. Initially, migration took the Crow, also known as the Absorkas, to an area on the Missouri River now encompassed by the Dakotas, where the Crow joined the Mandan. Ultimately, the Crow and the Mandan quarreled and the Crow once again migrated until their meandering was impeded by the main range of the Rocky Mountains. The later migration of the Crow Nation occurred around the time the dominant society was migrating from the old world to the new world. The Crow occupancy of the land now constituting the Crow Indian Reservation is not based upon aboriginal title from time immemorial.

While the Crow Indians did not have a written language, an extensive vocabulary did exist. The language had words for hunting, fishing, elk, deer, trout, and other types of animals and fish. The language was sophisticated in the sense that significant semantical distinctions existed. The vocabulary distinguished between "rights" and "privileges".

The Crow Nation was largely dependent upon big game animals or agriculture for subsistence. The first written reference to fishing and the Crow Indians came about at a council meeting between the Crow Tribe and the Federal Government, which resulted in a further cession of the Reservation. Act of April 11, 1882, 22 Stat. 42. The evidence adduced at trial indicates that fishing was not a central part of the Crow diet. The Crow were not dependent upon canoes or other types of boats for transportation along the Big Horn River or other rivers and streams flowing through their country.

III. TREATIES

The first contact the United States recorded in its relations with the Crow resulted in the Treaty of Friendship with the Crow Tribe in 1825. 7 Stat. 266. That treaty made no reservations of land to the Crow.

The next treaty was approved by the Senate on May 24, 1852, but is referred to as the Treaty of 1851. The Crow did not assent to this treaty until September 18, 1854. 4 The Treaty of Fort Laramie created a reservation encompassing some 38,531,174 acres. After the Treaty of Fort Laramie, the inevitable course of reservation diminishment followed.

On May 7, 1868, the Second Treaty of Fort Laramie was signed and proclaimed by the President on August 12, 1868. 15 Stat. 649. The Treaty diminished the reservation by over 30,000,000 acres. The net result of the 1868 Treaty was a reservation to the Crow of approximately 8,000,000 acres. Subsequent Congressional Acts reduced the size of the Crow Reservation to its present acreage of approximately 2,282,764.0 acres. 5 Of the 2,282,764 acres of reservation land that remain, the ownership can be broken down as follows:

Percentage of
Type of Ownership to
Ownership Acreage Total Acreage

------- -------------
Allotted 1,187,592.34 52.02%
Tribal 379,740.64 16.64%
(Surveyed)
Tribal 15,850.85 .69%
(Unsurveyed)
Government Owned 1,400.50 .07%
Yellowtail Dam 6,695.64 .29%
State Lands 44,804.82 1.96%
Fee Lands 646,679.12 28.33%
------------ -------
TOTAL: 2,282,764.00 100.00%

The only reference the 1851 Treaty makes to hunting and fishing is in Article 5, which provided that the eight Indian nations "do not surrender the Privilege of Page 603 hunting, fishing, or passing over any of the tracts of country heretofore described." (Emphasis supplied.) Likewise, the Treaty of 1868 makes but one reference to hunting and fishing rights. That is in Article 4 of the Treaty of 1868. Neither the Treaty of Fort Laramie of 1851 nor the Treaty of the Crow Indians of 1868 made specific reference to the title of the Big Horn River and its bed. Article 1 of the Treaty of 1868 provided:

If bad men among the...

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