State ex rel. Greely v. Confederated Salish and Kootenai Tribes of Flathead Reservation

• Citation: 42 St.Rep. 1856,712 P.2d 754,219 Mont. 76
• Decision Date: 18 December 1985
• Docket Number: No. 84-333,84-333
• Parties: STATE of Montana, ex rel., Mike GREELY, Attorney General, Water Court of the State of Montana and the Judges of That Court, Petitioners, v. The CONFEDERATED SALISH AND KOOTENAI TRIBES OF the FLATHEAD RESERVATION, the Crow Tribe of Indians of the Crow Reservation, the Northern Cheyenne Tribe of the Northern Cheyenne Reservation, and the United States of America, Individually and as Trustee for the Blackfeet Indian Nation of the Blackfeet Reservation, the Chippewa-Cree Tribes of the Rocky Boy's Reservation, the Confederated Salish and Kootenai Tribes of the Flathead Reservation, The Crow Tribe of the Crow Reservation, the Gros Ventre, Sioux and Assiniboine Tribes of the Fort Belknap and Fort Peck Reservations, the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, and the Turtle Mountain Chippewa Tribe, a North Dakota Tribe with allotments to land in the State of Montana, Respondents.
• Court: Montana Supreme Court

Page 754

712 P.2d 754

219 Mont. 76

STATE of Montana, ex rel., Mike GREELY, Attorney General,

Water Court of the State of Montana and the Judges

of That Court, Petitioners, v. The CONFEDERATED SALISH AND KOOTENAI TRIBES OF the FLATHEAD

RESERVATION, the Crow Tribe of Indians of the Crow

Reservation, the Northern Cheyenne Tribe of the Northern

Cheyenne Reservation, and the United States of America,

Individually and as Trustee for the Blackfeet Indian Nation

of the Blackfeet Reservation, the Chippewa-Cree Tribes of

the Rocky Boy's Reservation, the Confederated Salish and

Kootenai Tribes of the Flathead Reservation, The Crow Tribe

of the Crow Reservation, the Gros Ventre, Sioux and

Assiniboine Tribes of the Fort Belknap and Fort Peck

Reservations, the Northern Cheyenne Tribe of the Northern

Cheyenne Indian Reservation, and the Turtle Mountain

Chippewa Tribe, a North Dakota Tribe with allotments to land

in the State of Montana, Respondents.

No. 84-333.

Supreme Court of Montana.

Submitted April 11, 1985.

Decided Dec. 18, 1985.

Mike Greely, Atty. Gen., Clay R. Smith argued, Asst. Atty. Gen., Helena, W.W. Lessley argued, Chief Water Judge, Sarah Arnott argued, Water Master, Bozeman, for petitioners.

Goetz, Madden & Dunn, James H. Goetz argued for Confederated Salish and Kootenai Tribes, Bozeman, also, Daniel F. Decker argued, Pablo, Byron H. Dunbar, U.S. Atty., Billings, William P. Horn, Under Secretary U.S. Dept. of the Interior, Washington, D.C., Patrick Barry, Div. of Indian Lands and Natural Resources, U.S. Dept. of Justice, Washington, D.C., Allen E. Rowland, President, Northern Cheyenne Tribal Council, Lame Deer, Norman Hollow, Chairman, Fort Peck Tribal Executive Board, Poplar, Jeanne S. Whiteing argued for Native American Rights Fund, Boulder, Colorado. Robert S. Pelcyger, Boulder, Colo., Donald Stewart, Sr., Admin. Chairman, Crow Tribal Council, Crow Agency, Thomas E. Luebben, Albuquergue, N.M., Joseph R. Membrino, Jr., Asst. Sol., Div. Indian Affairs, U.S. Dept. of Interior, Washington, D.C., Blake A. Watson argued, Land & Natural Resources Div., Washington, D.C., Reid Peyton Chambers, Sonosky, Chambers & Sachse, Washington, D.C., Francis X. Lamebull, Harlem, Franklin R. Perez, President, Fort Belknap Comm. Council, Harlem, John Windy Boy, Chairman, Chippewa Cree Tribe, Box Elder, Richard LaFromboise, Chairman, Turtle Mountain Chippewa Tribe, Belcourt, N.D., Joseph Felsman, Chairman, Confederated Salish & Kootenai Tribes, Pablo, Earl Old Person, Chairman, Blackfeet Tribe, Browning, Joseph J. McKay, Browning, Calvin Wilson, Busby, Philip E. Roy, Browning, for respondents.

Steve Bunch argued, Montana Legal Services, Helena, Nancy Richardson, Montana Legal Services, Browning, D. Michael Eakin, Montana Legal Services, Billings, for amicus curiae.

WEBER, Justice.

On July 13, 1979, this Court ordered the statewide adjudication of all water rights in Montana to be commenced pursuant to Sec. 85-2-212, MCA. On August 3, 1984, the State of Montana, ex rel. Mike Greely, Attorney General, filed an application for writ of supervisory control of the Montana Water Court and the judges of that court. The State asked this Court to assume original jurisdiction to determine two issues: (1) Is Montana's Water Use Act adequate to adjudicate federal and Indian reserved water rights? (2) Does Article I of the Montana Constitution prohibit the Water Court from asserting jurisdiction over reserved water rights held in trust by the United States for Indians and Indian tribes within the State of Montana? Both of these issues were raised in the federal courts but left unresolved in San Carlos Apache Tribe v. Arizona and Montana v. Northern Cheyenne Tribe (1983), 463 U.S. 545, 570 fn. 20, 103 S.Ct. 3201, 3215 fn. 20, 77 L.Ed.2d 837, reh. denied 464 U.S. 874, 104 S.Ct. 209-10, 78 L.Ed.2d 185; Northern Cheyenne Tribe v. Adsit (9th Cir.1983), 721 F.2d 1187, 1188.

The Attorney General requested permission to make an ex parte presentation in support of the State's application for the extraordinary writ. We granted this request. However, prior to the State's presentation, the Confederated Salish and Kootenai Tribes petitioned for permission to participate as amicus curiae. This Court scheduled limited oral argument on the question of whether it should assume original jurisdiction over the State's application. The Water Court joined the State in requesting permission to proceed to adjudicate Indian and federal reserved water rights.

Following argument before this Court en banc, we assumed original jurisdiction to exercise supervisory control over the Water Court and to determine three questions of first impression regarding water rights in Montana. Supreme Court Order No. 84-333, dated January 23, 1985; State ex rel. Greely v. Water Court of State (1984), 691 P.2d 833, 835, 41 St.Rep. 2373, 2375. For purposes of oral argument on the substantive issues, this Court designated the State and the Water Court as co-petitioners. Both requested permission for the Water Court to proceed to adjudicate reserved water rights. The United States of America, all of the Indian tribes in Montana, and a North Dakota tribe with allotments to land in Montana were designated as respondents. State ex rel. Greely, 691 P.2d at 840, 41 St.Rep. at 2382.

The Montana tribes petitioned to withdraw as named parties and to appear as amici curiae. These petitions were granted. The Turtle Mountain Chippewa Tribe of North Dakota never responded to these proceedings. On its own motion, the Court dismissed the Turtle Mountain Chippewa Tribe as a named respondent. The Confederated Salish and Kootenai, the Crow and the Northern Cheyenne Tribes later filed motions to be reinstated as parties to this proceeding. Their motions were granted pursuant to San Carlos Apache, 463 U.S. at 566 fn. 17 103 S.Ct. at 3213 fn. 17. These four Montana Indian tribes remain as individually named respondents. The United States of America, appears individually and as trustee for all the tribes with land in Montana. State ex rel. Greely, 691 P.2d at 840, 41 St.Rep. at 2382.

The issues for determination are:

1. Is the Water Court of Montana prohibited from exercising jurisdiction over Indian reserved water rights based on Article I of the 1972 Montana Constitution?

2. Is the Montana Water Use Act, Title 85, Chap. 2, MCA, adequate to adjudicate Indian reserved water rights?

3. Is the Water Use Act, Title 85, Chap. 2, MCA, adequate to adjudicate federal reserved water rights?

We hold that Art. I, Mont. Const.1972 does not bar state jurisdiction to adjudicate Indian reserved water rights in Montana. We hold the Montana Water Use Act adequate on its face to adjudicate Indian and federal reserved water rights.

I

Is the Water Court prohibited from exercising jurisdiction over Indian reserved water rights based on Art. I, Mont. Const.1972?

Article I, Mont. Const.1972, entitled "Compact with the United States," guarantees that:

All provisions of the enabling act of Congress (approved February 22, 1889, 25 Stat. 676), as amended and of Ordinance No. 1, appended to the Constitution of the state of Montana and approved February 22, 1889, including the agreement and declaration that all lands owned or held by any Indian or Indian tribes shall remain under the absolute jurisdiction and control of the congress of the United States, continue in full force and effect until revoked by the consent of the United States and the people of Montana.

Several of the tribes argue that consent of the people of Montana has not been given to the State to adjudicate or control water on Indian lands. The tribes assert that a popular vote of the people on a constitutional amendment is required. They argue that the consent of the people to Congress' revocation of absolute federal jurisdiction over Indian water rights cannot be granted by legislative enactment.

Montana was admitted to statehood in 1889. As a prerequisite to admission to the Union, a federal Enabling Act required North Dakota, South Dakota, Montana and Washington to hold constitutional conventions and declare:

That the people inhabiting said proposed states do agree and declare that they forever disclaim all right and title to ... all lands ... owned or held by any Indian or Indian tribes ... and that said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States, ...

The Enabling Act, Sec. 4 Second; 25 Stat. 676 (1889). In response to this requirement, Montana adopted Ordinance No. I, Second (1889), and disclaimed any right or title to Indian lands. This Ordinance was "irrevocable without the consent of the United States and the people of ... Montana." Ordinance No. I, Sixth (1889).

Similar disclaimer language was incorporated into the constitutions of many of the western states, including Alaska, Arizona, Idaho, New Mexico, North Dakota, Oklahoma, South Dakota, Utah, Washington and Wyoming. See San Carlos Apache, 463 U.S. at 561 fn. 12, 103 S.Ct. at 3210 fn. 12. Colorado was admitted to the Union in 1876 and was not required to insert a disclaimer in its constitution. The reason Montana was subject to a disclaimer requirement and Colorado was not "has more to do with historical timing than with deliberate congressional selection." San Carolos Apache, 463 U.S. at 562, 103 S.Ct. at 3210. However, a substantial majority of Indian land, including most of the largest Indian reservations, lies within states with disclaimers in their constitutions. San Carlos Apache, 463 U.S. at 561, 103 S.Ct. at 3210.

Montana has seven Indian reservations with tribal claims to reserved water rights on the Tongue River and Big Horn River in the Yellowstone Basin, Milk and St. Mary systems, Big Muddy and Poplar River systems, tributaries of the Missouri River, Flathead River system, Marias River system, Flathead Lake with the Flathead River system, and the Kootenai River. Western Network, What Indian Water Means...