Confederated Salish and Kootenai Tribes v. Namen

• Decision Date: 14 August 1974
• Docket Number: Civ. No. 2343.
• Citation: 380 F. Supp. 452
• Parties: The CONFEDERATED SALISH AND KOOTENAI TRIBES et al., Plaintiffs, v. James M. NAMEN et al., and City of Polson, a Montana municipal corporation, Intervener, Defendants.
• Court: U.S. District Court — District of Montana

380 F. Supp. 452

The CONFEDERATED SALISH AND KOOTENAI TRIBES et al., Plaintiffs, v. James M. NAMEN et al., and City of Polson, a Montana municipal corporation, Intervener, Defendants.

Civ. No. 2343.

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

August 14, 1974.

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Richard A. Baenen of Wilkinson, Cragun & Barker, Washington, D. C., and Victor F. Valgenti, Missoula, Mont., for plaintiffs.

Poore, McKenzie, Roth, Robischon & Robinson, Butte, Mont., for defendants.

Christian, McCurdy, Ingraham & Wold, Polson, Mont., for intervenor City of Polson.

Boone, Karlberg & Haddon, Missoula, Mont., for the Flathead Lakers, Inc.

JAMESON, District Judge.

The plaintiffs, The Confederated Salish and Kootenai Tribes of the Flathead Reservation (Tribes) and Harold W. Mitchell, Jr., chairman of the Tribal Council, instituted this action for declaratory and injunctive relief against the defendants, James M. Namen, Barbara J. Namen, A. J. Namen, and Kathryn Namen, the owners of land located in Polson, Montana on the south half of Flathead Lake, which is a part of the Flathead Indian Reservation. Plaintiffs seek a judgment declaring that "the defendants are in trespass upon plaintiffs' land to the extent that they maintain and have erected buildings and structures beyond the high water mark * * * of Flathead Lake and encroach on the bed and banks of said Lake".¹ They ask the court to enjoin all further trespass and that "defendants be directed to immediately remove all buildings and structures, including landfills, that extend beyond" the high water mark and that the lands below the high water mark "be restored to their original condition".

Defendants filed a motion to dismiss for failure to state a claim. Plaintiffs filed a motion for summary judgment. The City of Polson was permitted to intervene and filed an answer.² Flathead Lakers, Inc. was granted leave to file a brief as amicus curiae.³

At a hearing on March 22, 1974 the parties agreed upon most of the facts essential to a determination of the pending motions and were granted time for further discovery and supplemental briefs. The court suggested that the motion of the defendants to dismiss be considered a motion for summary judgment. The defendants and intervener⁴ have now agreed that their motions to dismiss may be considered as motions for summary judgment pursuant to the provisions of Rules 12(b) and 56 of the Federal Rules of Civil Procedure.

All parties have conducted extensive discovery and have filed comprehensive and well considered briefs. The court is satisfied that there is no genuine issue as to any material fact with respect to the primary issue of whether the defendants as owners of property riparian to the south half of Flathead Lake have the riparian rights of access and wharfage.

Statement of Facts

The following facts are not disputed by any of the parties:

(1) The plaintiff Tribes are a confederation of American Indian Tribes organized pursuant to the Indian Reorganization Act of June 18, 1934, 48 Stat. 984, 25 U.S.C. § 461 et seq., with a governing body recognized by the Secretary of the Interior. The plaintiff Mitchell is an enrolled member of the Tribes and is chairman of the Tribal Council.

(2) The Flathead Reservation was created pursuant to the Treaty of Hellgate, July 16, 1855, 12 Stat. 975, reserving for the plaintiff Tribes the land embraced by the following boundaries:

"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, thence southerly along said divide to the place of beginning." (Emphasis added).

(3) In 1908 the United States, pursuant to the Act of April 23, 1904, 33 Stat. 302, as amended, allotted to Antoine Morias (Indian Allotment No. 1378) the following lands within the Reservation:

"The Lot one, the east half of the Lot two, and the southeast quarter of the southeast quarter of section three in Township twenty-two north of Range twenty west of the Montana Meridian, Montana, containing seventy-five and forty-two-hundredths acres."

These lands are riparian to the south half of Flathead Lake, which is a navigable body of water. The south half of Flathead Lake was included in the lands reserved to the Tribes by the Treaty of Hellgate.

(4) The defendants, James M. Namen, Barbara J. Namen, A. J. Namen, and Kathryn Namen are the owners in common through successive conveyances of portions of the Morias allotment described as the east half of Lot 2, Section 3, Township 22 North, Range 20 West, Montana Principal Meridian.

(5) The defendant James M. Namen operates a business known as Jim's Marina, Polson, Montana on these riparian lands, and "as proprietor of Jim's Marina has erected and maintained certain buildings and structures which extend beyond the high-water mark of the lake and encroach on the bed and banks of Flathead Lake". Among the structures which extend beyond the high water mark are: (a) docks, wharves and piers; (b) a breakwater built in 1973; and (c) a storage shed.

(6) The breakwater extends for some distance into the lake below high water mark. "The width of the breakwater, from water line to water line is approximately 16 feet, and the sides of the breakwater descend at an angle so that the width of the breakwater along the bed of the lake is in excess of 16 feet."

(7) The marina and assorted structures that encroach on the bed and banks of the lake below high water mark are utilized for business or commerce in connection with Flathead Lake.

(8) During the period from "around the turn of the century into at least the 1920's, Flathead Lake was used at various times and on various occasions for commerce; * * * boats and related water vehicles traveled the lake from one end to the other."

(9) Wild Horse and Cromwell Islands lie within the south half of Flathead Lake. All lands on Wild Horse Island were conveyed under the allotment act of 1904 (33 Stat. 302) as amended.

For the purpose of considering the pending motions the court also concludes as a matter of law:

(1) The land within the original boundaries of the reservation, including the land owned by the defendants and the south half of Flathead Lake, is still part of the Flathead Reservation.⁵

(2) The allotment of Antoine Morias conveyed title only to the high water mark of Flathead Lake, and the high water mark is the boundary of the defendants' property.⁶

(3) Since the time of the Treaty of Hellgate, the United States has held and still holds the bed and banks of Flathead Lake below high water in trust for the plaintiff Tribes.⁷

Contentions of Parties

Defendants and intervener claim a right of access to Flathead Lake, together with the concomitant right to construct and maintain "dock, wharf and pier facilities" on the bed and banks of the south half of Flathead Lake below high water mark. They contend that the estate reserved to the Tribes in the south half of Flathead Lake by the Treaty of Hellgate is not absolute. Rather, they contend, (1) the riparian rights of wharfage may be implied from provisions of the Hellgate Treaty and the Treaty of the Upper Missouri; (2) the estate reserved to the Tribes has been limited by allotment and settlement statutes which manifested a Congressional intent "to grant riparian rights which accompany lakeshore property"; and (3) the owners of lands riparian to Flathead Lake acquired under the allotment and settlement statutes are entitled to the riparian rights of access and wharfage under federal common law doctrine.

Plaintiffs contend that as the beneficial owners of the bed and banks of the lake below high water mark, they have the right to control the use of that land. They argue that no rights below the high water mark were ever extended to the owners of riparian lands by either treaty or statute. Finally, they contend that federal common law principles of riparian rights are not applicable, but rather that tribal law is controlling and the Tribes have never granted riparian rights to owners of lakeshore property.

Hellgate Treaty and Treaty of Upper Missouri

Defendants contend that the riparian right of wharfage may be implied from certain provisions in the Hellgate Treaty and the Treaty of the Upper Missouri. The court cannot agree.

Article III of the Hellgate Treaty provides in part:

"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." (Emphasis added).

It is true, as defendants point out, that under 43 U.S.C. § 931 navigable rivers are "deemed public highways" and under 22 U.S.C. § 10 the navigable rivers and waters within the Louisiana Purchase are "public highways". However, when Article III refers to securing free access to the public highway "to them", it is not clear whether the word "them" refers to the public in general or to members of the Tribe. After providing for roads for the public convenience, the article continues with the phrase "on the other hand". The language following may reasonably be construed as referring to members of the Tribe. Doubtful expressions must be resolved in favor of the Indians. Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 74 L.Ed. 478 (1930); McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36...