Confederated Salish and Kootenai Tribes of Flathead Reservation, Montana v. Namen
| Decision Date | 11 January 1982 |
| Docket Number | 80-3216 and 80-3274,80-3196,Nos. 80-3189,80-3190,s. 80-3189 |
| Citation | 665 F.2d 951 |
| Parties | CONFEDERATED SALISH AND KOOTENAI TRIBES OF the FLATHEAD RESERVATION, MONTANA, et al., Plaintiffs-Appellants/Cross-Appellees, v. James M. NAMEN, et al., City of Polson, Montana, and State of Montana, Defendants-Appellees/Cross-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Martin W. Matzen, Dept. of Justice, Washington, D. C., argued, for the U. S.; Robert T. O'Leary, Billings, Mont., Tom D. Tobin, Winner, S. D., William W. Shakely, Tobin Law Offices, P. C., Washington, D. C., on brief.
Edward M. Fogarty, Wilkinson, Cragun & Barker, Washington, D. C., argued, for Confederated Salish and Kootenai; Richard A. Baenen, Washington, D. C., on brief.
Urban Roth, Poore, Roth, Robischon & Robinson, Butte, Mont., for State of Mont. and James M. Namen, et al.
F. L. Ingraham, Christian, McCurdy, Ingraham & Wold, Ronan, Mont., for City of Polson.
Appeal from the United States District Court for the District of Montana; William J. Jameson, Senior District Judge, Presiding.
Before PREGERSON and POOLE, Circuit Judges, and KELLAM *, District Judge.
These consolidated appeals stem from attempts by the Confederated Salish & Kootenai Tribes of Flathead Reservation (hereinafter "the Tribes") to regulate the manner in which non-Indians who own land bordering a navigable lake on the reservation exercise their riparian rights. The Tribes seek to enforce an ordinance they enacted in 1977 to regulate both existing and future structures on the bed and banks of the south half of Flathead Lake, to which the Tribes claim beneficial title. The Namens, who are non-Indian riparian landowners, the State of Montana, and the City of Polson, Montana, contest the Tribes' efforts. 1 They argue: (1) that the historic Flathead Reservation was terminated in 1904 ("the termination issue"); (2) that, even if the original reservation still exists, title to the bed and banks of the south half of Flathead Lake is vested in Montana, not in the United States as trustee for the Tribes ("the ownership issue"); and (3) that in any event the Tribes have no power to regulate how a non-member exercises his or her riparian rights ("the regulatory issue"). The district court rejected the first two of these arguments, but concluded that the Tribes lacked regulatory authority over non-members. For the reasons set forth below, we affirm the district court's conclusions as to the termination and ownership issues, but reverse on the regulatory issue and hold that the Tribes have the authority to enact the challenged ordinance.
The Flathead Reservation was established by the 1855 Treaty of Hell Gate, 12 Stat. 975 (ratified in 1859), in what is now the State of Montana. As defined by the treaty, the reservation contained the southern half of Flathead Lake, a navigable body of water roughly 26 miles long and up to 5 miles wide.
The Act of April 23, 1904, ch. 1495, 33 Stat. 302 (hereinafter "the Flathead Act"), authorized allotments in severalty of Flathead Reservation land to members of the Tribes. The land remaining after allotment was to be made available by presidential proclamation to non-Indians. The Act was implemented by the Proclamation of May 22, 1909, 36 Stat. 2494, which-after a delay-became effective May 2, 1910. Pursuant to the new policy, a federal patent was issued in 1910 to Antoine Morais, a Flathead Indian, for an allotment of reservation land.
The Namens (James M., Barbara J., A. J., and Kathryn) are successors in interest to Morais. Their land is riparian to the south half of Flathead Lake. They operate a business called "Jim's Marina" on their land, and have built docks, a breakwater, and a storage shed that extend beyond the high-water mark of the lake onto its banks and bed. The State of Montana and the City of Polson (hereinafter "Polson") also own land riparian to the south half of Flathead Lake on which are structures extending beyond the high-water mark.
In August 1973 the Tribes initiated the instant litigation by suing the Namens in federal District Court for the District of The district court granted partial summary judgment for defendants in August 1974. Confederated Salish & Kootenai Tribes v. Namen (Namen I), 380 F.Supp. 452 (D.Mont.1974), aff'd, 534 F.2d 1376 (9th Cir.), cert. denied, 429 U.S. 929, 97 S.Ct. 336, 50 L.Ed.2d 300 (1976). The district court held: (1) the Namens' title extends only to the high-water mark; (2) the bed and banks of the south half of Flathead Lake are held by the United States in trust for the Tribes; but (3) the Namens' title includes the federal common law rights of access and wharfage out to navigable water. The court reserved for later determination the question whether the Namens' structures exceeded what their rights authorized.
Montana. The Tribes sought declaratory and injunctive relief against the Namens for allegedly trespassing on tribal lands by building and maintaining their docks, breakwater, and storage shed. Polson intervened as a defendant.
In November 1975 Polson filed suit against the Tribes for a declaratory judgment that the Flathead Reservation had been terminated by the 1904 Flathead Act. Montana intervened as a plaintiff. In June 1977 Polson's suit was consolidated with the Tribes' suit.
In July 1977 the Tribes enacted, and the Secretary of the Interior approved, a "Shoreline Protection Ordinance," Ordinance 64A, aimed at regulating riparian structures along the south half of Flathead Lake. In September 1977 the Tribes amended their complaint, adding allegations that the Namens' structures violated Ordinance 64A, abused the Namens' riparian rights, degraded water quality, and interfered with tribal fishing rights. The United States intervened as a plaintiff in October 1977.
In December 1977 the United States, as trustee for the Tribes, filed a separate lawsuit against Polson and Montana, seeking a declaratory judgment that the Flathead Reservation had not been terminated and that the Tribes had authority to regulate use of the bed and banks of the south half of the lake. That suit was consolidated with the other two.
The district court issued its written opinion on April 8, 1980. The court reaffirmed the conclusions it had reached in Namen I -particularly, that the United States held title to the south Flathead Lake bed in trust for the Tribes-and additionally held: (1) that there had been no diminishment or termination of the reservation; but (2) that the Tribes had no authority to regulate the riparian rights of the Namens, Polson, and Montana.
Each party has appealed from some aspect of the district court's judgment. The Namens (in 80-3189), Montana (in 80-3190), and Polson (in 80-3196) appeal from the rulings on the ownership issue (that the Tribes hold beneficial title to the south Flathead Lake bed) and the termination issue (that the reservation was never terminated). The Tribes (in 80-3216) and the United States (in 80-3274) appeal from the ruling on the regulatory issue (that the Tribes lack authority to regulate non-Indians' riparian rights). 2
The Flathead Act of April 23, 1904, ch. 1495, 33 Stat. 302, provided for allotments of reservation land in severalty to the Indians on the Flathead Reservation and for opening the surplus, unallotted land to non-Indians. The City of Polson argues that this statute terminated the reservation status of the Flathead Reservation. The Namens and Montana adopt Polson's position. The district court, however, rejected this argument. We affirm this portion of the district court's judgment.
The crucial inquiry where, as here, it is alleged that a statute has terminated a reservation is whether Congress intended the statute to have that effect. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586, 97 The face of the Act:
S.Ct. 1361, 1363, 51 L.Ed.2d 660 (1977). 3 Termination cannot be inferred lightly, and Congress's intent to terminate must be clear to prevail in the face of the rule that ambiguities are resolved in the Indians' favor. DeCoteau v. District County Court, 420 U.S. 425, 444, 95 S.Ct. 1082, 1092, 43 L.Ed.2d 300 (1975). "A congressional determination to terminate must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history." Mattz v. Arnett, 412 U.S. 481, 505, 93 S.Ct. 2245, 2258, 37 L.Ed.2d 92 (1973). Neither the face of the Flathead Act, nor its legislative history and the "surrounding circumstances," clearly indicate a congressional intent to terminate the Flathead Reservation
Statutes have expressed an intent to terminate all or part of a reservation in several different ways. Congress frequently made such an intent explicit. 4 On other occasions, Congress used the slightly less explicit "language of cession," by which an Indian tribe would agree to cede, convey, or relinquish all title to part or all of its reservation-language which the Supreme Court has described as "precisely suited" to terminate all of the tribe's interest in the affected land. DeCoteau v. District County Court, 420 U.S. 425, 445, 95 S.Ct. 1082, 1093, 43 L.Ed.2d 300 (1975) (). 5 In still other situations, courts have found an intent to terminate implicit in statutory references to the "diminished reservation" 6 or to "reduction" of the reservation. 7
The Flathead Act does not in any of these ways express on its face an intent to terminate the reservation. As the district court observed, it contains neither an explicit declaration that the reservation was terminated nor explicit language of cession. And, far from containing implicit expressions of an intent to terminate, the Flathead Act refers to the reservation without any indication that it...
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