Confederated Salish & Kootenai Tribes v. Lake Cnty. Bd. of Comm'rs

• Court: U.S. District Court — District of Montana
• Writing for the Court: Dana L. Christensen, District Judge
• Citation: Confederated Salish & Kootenai Tribes v. Lake Cnty. Bd. of Comm'rs, 454 F.Supp.3d 957 (D. Mont. 2019)
• Decision Date: 16 April 2019
• Docket Number: CV 19-90-M-DLC
• Parties: CONFEDERATED SALISH AND KOOTENAI TRIBES, Plaintiff, v. LAKE COUNTY BOARD OF COMMISSIONERS; and Lori Lundeen, Defendants.

454 F.Supp.3d 957

CONFEDERATED SALISH AND KOOTENAI TRIBES, Plaintiff,

v.LAKE COUNTY BOARD OF COMMISSIONERS; and Lori Lundeen, Defendants.

CV 19-90-M-DLC

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

Signed April 16, 2019

Filed April 16, 2020

Christina M. Courville, Daniel J. Decker, John T. Harrison, Shane A. Morigeau, CSKT Legal Department, Pablo, MT, James H. Goetz, Goetz, Baldwin & Geddes, P.C., Bozeman, MT, for Plaintiff.

Deana M. Bennett, Pro Hac Vice, Luke W. Holmen, Pro Hac Vice, Spencer L. Edelman, Pro Hac Vice, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, Walter E. Congdon, Lake County Attorney's Office, Polson, MT, for Defendant Lake County Board of Commissioners.

Joseph Ray Casillas, Jenna P. Lyons, Datsopoulos MacDonald & Lind, Missoula, MT, for Defendant Lori Lundeen.

ORDER

Dana L. Christensen, District Judge

Before the Court are the parties’ cross-motions for summary judgment. (Docs. 71 & 87.) The Court grants the motion of Plaintiff Confederated Salish and Kootenai Tribes and denies the joint motion of Defendants Lake County Board of Commissioners ("Lake County") and Lori Lundeen.

HISTORICAL BACKGROUND ¹

I. The Creation of the Flathead Indian Reservation

The Confederated Salish and Kootenai Tribes—a federally recognized confederation of the Séliš (Salish), Q'lispé (Kalispell, or Upper Pend d'Oreille), and Ksanka (Kootenai) Tribes—once occupied western Montana and parts of Idaho, Wyoming, and British Columbia. In 1855, the Tribes ceded to the United States most of their aboriginal lands in Montana and Idaho, reserving for their exclusive use the Flathead Indian Reservation—1,245,000 acres in western Montana. See Hell Gate Treaty of 1855, art. II, July 16, 1855, 12 Stat. 975 ("Commencing at the source of the main branch of the Jocko River; thence along the divide separating the waters flowing into the Bitter Root River from those flowing into the Jocko to a point on Clarke's Fork between the Camash and Horse Prairies; thence northerly to, and along the divide bounding on the west the Flathead River, to a point due west from the point half way in latitude between the northern and southern extremities of the Flathead Lake; thence on a due east course to the divide whence the Crow, the Prune, the So-ni-el-em and the Jocko Rivers take their rise, and thence southerly along said divide to the place of beginning.").

Under the terms of the Hell Gate Treaty, non-Indian settlers could reside within the Reservation's boundaries only with the Tribes’ permission. Id. The Tribes agreed to relinquish their claim to the vast majority of their indigenous territories, allowing "all citizens of the United States to enter upon and occupy as settlers any lands not actually occupied and cultivated by said Indians at this time, and not included in the [Reservation]." Id. The parties stipulated: "That if necessary for the public convenience roads may be run through the said reservation; and, on the other hand, the right of way with free access from the same to the nearest public highway is secured to them, as also the right in common with citizens of the United States to travel upon all public highways." Id. art. III.

The Treaty with the Blackfeet—generally called the Lame Bull Treaty—was also signed in 1855, mere months after the Hell Gate Treaty. Lame Bull Treaty, preface, Oct. 17, 1855. Signatories included the United States, through Washington Territory Governor Isaac Stevens, and the

chiefs, headmen, and delegates of the following nations and tribes of Indians, who occupy, for the purposes of hunting, the territory on the Upper Missouri and Yellowstone Rivers, and who have permanent homes as follows: East of the Rocky Mountains, the Blackfoot Nation, consisting of the Piegan, Blood, Blackfoot, and Gros Ventres tribes of Indians. West of the Rocky Mountains, the Flathead Nation, consisting of the Flathead, Upper Pend d'Oreille, and Kootenai tribes of Indians, and the Nez Percé tribe of Indians.

Id.

The Lame Bull Treaty's clear theme is peace among and between the various tribes and the United States. The Chiefs signing the treaty promised "[p]eace, friendship and amity" with the United States. Id. art. I. They also agreed to avoid "all hostilities whatsoever, excepting in self-defense," with "all ... neighboring nations and tribes of Indians." Id. art. II; see also id. art. XI ("Nor will they make war upon any other tribes, except in self-defense ...."). Critical to the preservation of peace was an agreement regarding the various tribes’ access to buffalo hunting grounds. Thus, the treaty lays out in great detail how and where the tribes may hunt. Id. art. III–VII, XIV.

Similar to the Hell Gate Treaty, the Lame Bull Treaty includes provisions regarding non-Indians’ right to travel through tribal lands. The tribal parties agreed "that citizens of the United States may live in and pass unmolested through the countries respectively occupied and claimed by them" and "that the United States may, within the countries respectively occupied and claimed by them, construct roads of every description." Id. art. VII, VIII.

II. Allotment

Marked by the passage of the Dawes Act in 1887, federal policy toward Indian tribes shifted toward assimilation in the late 19th century. With the Act, Congress authorized the President to survey and force allotment of tribal lands "whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricultural and grazing purposes." General Allotment ("Dawes") Act, 49 Cong. Ch. 119, 24 Stat. 388, § 1 (1887). Allotment was first to be made to individual tribal members, and then the executive branch was to negotiate "for the purchase and release" of any unallotted lands "on such terms and conditions as shall be considered just and equitable." Id. § 5.

The Dawes Act and the practice of allotment served federal assimilationist policy in two primary ways. First, it forced individual tribal ownership of lands, "on the view that private ownership by individual Indians would better advance their assimilation as self-supporting members of our society and relieve the Federal Government of the need to continue supervision of Indian affairs."

N. Cheyenne Tribe v. Hollowbreast , 425 U.S. 649, 650 n.1, 96 S.Ct. 1793, 48 L.Ed.2d 274 (1976). And second, it opened up tribal lands to non-Indian settlement, diminishing reservations. Solem v. Bartlett , 465 U.S. 463, 468, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984) ("[T]he Congresses that passed the surplus land acts anticipated the imminent demise of the reservation and, in fact, passed the acts partially to facilitate the process ....").

In the words of Peter Ronan, the contemporary U.S. Indian Agent to the Flathead Agency, members of the Tribes "looke[ed] with suspicion upon" the Dawes Act. (Doc. 67-1 at 16.) He added, "A large majority of the Indians of the Flathead reservation [we]re averse to taking land in severalty, as they labor under the impression that the residue will be sold by the Government to white settlers, thus breaking up their reservations and mixing the Indians up promiscuously with the white settlers." (Id. ) Tribal leaders were outspoken in their opposition to surveying, believing that "a ‘measurement’ of land means a robbery of the Indians." (Id. at 17.) Both Ronan and his successor, Joseph Carter, thought that the United States would be wise to avoid making any moves toward allotment.² (Id. at 17–18.)

The U.S. government did not drop the matter, however. In its Indian appropriations bill of 1896, Congress specifically authorized a commission to negotiate allotment "[w]ith the Crow and Flathead Indians in the State of Montana for the cession of portions of their respective reservations." Indian Appropriations Act of June 10, 1896, 54 Cong. Ch. 398, 29 Stat. 321, 341. Although the commission met with tribal leaders repeatedly from 1897 through 1901, it did not make headway, meeting continued resistance to any diminishment of the Reservation. (Doc. 67-1 at 18.)

Ultimately, it was the law that changed—not the minds of tribal members. In 1903, the United States Supreme Court decided Lone Wolf v. Hitchcock , writing that Congress's plenary power over tribal lands was not limited by "the strict letter of a treaty with the Indians." 187 U.S. 553, 565, 23 S.Ct. 216, 47 L.Ed. 299 (1903). The Court held that a congressional dispensation of tribal land, even if inconsistent with a treaty's provisions regarding allotment and dispensation, was "a mere change in the form of investment of Indian tribal property" and fell within the scope of congressional power. Id. at 568, 23 S.Ct. 216. Thus, there was no longer a need for a negotiated agreement with the Tribes.

Just over a year after the Lone Wolf decision, Congress passed the Flathead Allotment Act, authorizing the executive branch to survey and allot lands within the Reservation. It appears that an earlier draft of the Act included a tribal consent provision, but it was removed prior to passage. Then-Secretary of the Interior Ethan Hitchcock wrote to Congress that "[t]he bill if amended [to remove requirement of tribal consent] will fully safeguard and protect the rights and interests of the Flathead Indians, and there is no occasion for presenting the matter to the Indians for the purpose of procuring their consent thereto." (Doc. 67-1 at 19.)

The Flathead Allotment Act directed the Secretary of Interior to survey the entirety of the Reservation. Flathead Allotment Act, 58 Cong. Ch. 1495, 33 Stat. 302. Following the survey, the Secretary was to first force allotment to all individual tribal members and then to classify and make available for sale the unallotted lands to U.S. citizens. Id. §§ 3–9. The Act provided that the United States was to act as trustee for the Tribes "to dispose of [Reservation] lands and to expend and pay over the proceeds received from the sale thereof." Id. § 16. However, "nothing in th[e] Act ... in any manner [bound] the United...