Opposition Brief — Joint Board of Control of the Flathead, Mission, & Jocko Irrigation Districts v. Confederated Salish & Kootenai Tribes of the Flathead Reservation

No. 87-1549

In The ;

Supreme Court of the United States

October Term, 1987

ty

Vv

JOINT BOARD OF CONTROL OF THE FLATHEAD,

MISSION AND JOCKO IRRIGATION DISTRICTS,

Petitioner,

CONFEDERATED SALISH AND KOOTENAI

TRIBES OF THE FLATHEAD RESERVATION,

Respondents.

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VU

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

fy

VW

BRIEF FOR RESPONDENTS IN OPPOSITION

ray

Vv

Patrick L. Smith James H. Goetz

John B. Carter GOETZ, MADDEN &

Daniel F. Decker DUNN, P.C.

Confederated Salish and 35 North Grand

Kootenai Tribes Bozeman, Montana 59715

Legal Department (406) 587-0618

P.O. Box 278

Pablo, Montana 59855

(406) 675-2700

Attorneys for Respondents

April 1988

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

QUESTION PRESENTED

Whether the appeals court determination that the dis-

trict court may not ignore differences in seniority of water

rights claims on the Flathead Indian Reservation, when it

undertakes to provide interim prospective guidance to the

Bureau of Indian Affairs in an emergency water rights

controversy, conflicts with federal policy embodied in the

McCarran Amendment or violates any due process of ir-

rigators when: (1) there is no permanent quantification

of any water right, (2) there is no court of appeals man-

date for such quantification, and (38) the state’s adjudi-

cation of tribal water rights on the Reservation is stat-

utorily suspended pending ongoing efforts to negotiate a

state-tribal water right compact.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES aie

OPINIONS BELOW .... : Past As 1

JURISDICTION. ............. : . 2

TREATIES AND STATUTES INVOLVED 2

STATEMENT OF THE CAS ....22.... ee 3

ARGUMENT

THE DECISION OF THE COURT OF AP-

PEALS IS CORRECT AND PRESENTS NO

ISSUE OF GENERAL IMPORTANCE WAR-

RANTING REVIEW BY THE COURT, NOR

DOES IT CONFLICT WITH ANY CIRCUIT

COURT DEUTREONY 3c. cece

CON CLO BIIN aacececeesnssereeocnseeee seen ae

yd if Hib) D. SNM

ill

TABLE OF AUTHORITIES

Page

Tape or C'ASEs:

Arizona v. San Carlos Apache Tribe of Arizona,

463 U.S. 545 (1983) 0, 10

Colorado Ria x Wate r Conse rvation District ?.

United States, 424 U.S. 800 (1976) 10

Confederated Salish and Koot nai Tribes v. Flat

head Irrigation and Power Project, 616 F. Supp.

1292 (D. Mont. 1985) 7

C'on fe derate d Salish and Koote nar Tribe Ss 2. Name iH,

665 F.2d 951 (9th Cir. 1982), cert. denied. 429

U.S. 929 (1982) it Aa 20

Confede rate d Salish and Koote nal Tribe Ss v, Un fe d

States, 487 F.2d 458, 197 Ct. Cl. 801 (1971)

Ww

General Agriculture Corp. +. Moore. 166 Mont.

210, 534 P.2d 859 (1975) 15

Jicarilla A pache Trib: v Unite a State Ss, HO] F.2d

1116 (9th Cir. 1979), cert. denied, 444 U.S. 995

(1979) . . 14

Joint Board of Control v. United States. G45 F.

Supp. 410 (D. Mont. 1986), rev'd, 8382 F.2d 1127

(9th Cir. 1987), petition for writ of certiorari

pending G, 9, 11,17

Joint Board of Control v. United States. No.

CV-87-107-M. (D. Mont. 1987), appeal filed on

August 12, 1987, CA No. 87-4106 (9th Cir.) 10

Kittitas Reclamation District +. Sunnuside Valley

Irrigation District, 763 F.2d 1082 (9th Cir.

1985), cert. denied, 474 U.S. 1032 (1985) 11, 14

Montana v. Confe derated Salish and K oote nar

Tribes. Mont. —, 712 P.2d 754 (1985) 6,16

Morris v. Bean, 146 F. 423 (C. C.D. Mont. 1906) 15, 21

iv

TABLE OF AUTHORITIES--—Continued

Page

Northern Cheyenne Tribe v. Adsit, 721 F.2d 1187

a Es RE ict ec eerecennne Seo uuegaaeoee ) 6

Oregon +. United States, 467 U.S. 1252 (1984) | 14

Pennell et alov.City of San Jose et al.. — US.

—, 56 U.S.L.W. 4168 (February 24, 1988) oo. oe

State v. McClure, 127 Mont. 534, 268 P.2d 624 (1954) 3,16

United States v. Adair, 732 F.2d 1394 (9th Cir.

1983), cert. den. sub. nom. Oreaon v. United

States, 467 U.S. 1252 (1984) eect 14, 16

United States v. Alexvander, 131 F.2d 359 (9th

| | Ree Ce EON onc eT eae RO 15

United States v. Anderson, 736 F.2d 1358 (9th

Be NI. acne ocecctac ae ledet ape ercetanie alae eee eae 15

United States v. Powers, 305 U.S. 527 (1939). ................. 12,15

United States v. Wheeler, 435 U.S. 313 (1978) oo... 3

United States v. Winans, 198 U.S. 371 (1905) oo. 3,16

Washington v. Fishing Vessel Ass'n, 443 U.S. 658

{2 ) SSRN neers DRC Lane RGR CRs OR aeRO PENT Sg

Winters v. United States, 207 U.S. 564 (1908) 00004, 15

OrHerR AUTHORITY:

Copr or Feperat REGULATIONS

95 CPLR. Part U7) occccccccccccccccccceeeesme veer tun, 19

Montana Cope ANNoTATED (1987)

DRS peaks: Mubkd so ae te 2, 6,18

6 86-2-201 to 85-2-248

§§ 85-2-701 to 85-2-705 eee b eit a Siete te 2, 6, 7,18

TABLE OF AUTHORITIES—Continued

Pag

Unirep States Cope

25 U.S.C. § 381 (Dawes Act) : 2.13. 13 14. 35

pO RS | 7 | Ree ene e Looe 2

eis oe Se ae a ee eee ee

45 U.S.C. § 666 (McCarran Amendment) 4 2,5, 17

STATUTES

Act of February 8, 1887, 24 Stat. 390 (General

Allotment Act or Dawes Act) Pa ety Dred er

Act of April 23, 1904, 33 Stat. 302 (Flathead

Allotment Act) ........ Ree RE a RIE ase EN PG PURPLE EN

Act of May 29, 1908, 35 Stat. 444

Treaty of Hellgate of July 16, 1855, 12 Stat. 975 . 3,4

3 Kapp 655 aa SEV ev Ce aA EES NE Te VUE dA IE +

No. 87-1549

— — ()- $$$ ————

In The

Supreme Court of the United States

October Term, 1987

—__—__———_-_(.- EE

JOINT BOARD OF CONTROL OF THE FLATILEAD,

MISSION AND JOCKO IRRIGATION DISTRICTS,

Petitioner,

CONFEDERATED SALISH AND KOOTENAI

TRIBES OF THE FLATHEAD RESERVATION,

Responde nits.

—— — 4) —_ — _

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

a) —

BRIEF FOR RESPONDENTS IN OPPOSITION

ee o— a

OPINIONS BELOW

The November 17, 1987 opinion of the Court of Ap-

peals, whose judgment is herein sought to be reviewed,

is reported at 832 F.2d 1127 (9th Cir. 1987) and is re-

printed in the Appendix to the Petition for Certiorari at

A-62 through A-70. The prior opinion of the United States

District Court for the District of Montana is reported at

646 F. Supp. 410 (D. Mont. 1986) and is reprinted in the

same Appendix at A-35 through A-61.

JURISDICTION

The judement of the Court of Appeals was entered on

November 17, 1987. On January 29, 1988, Justice O’Con-

nor entered an order extending time for the filing of this

Petition to and ineludime Mareh 16. 1988. The Confeder

ated Salish and Kootenai Tribes were served on Mareh

21, 1988. The jurisdiction of this Court is invoked pursu

ant to BS U.S.C, 1H4(1).

TREATIES AND STATUTES INVOLVED

The Treaty with the Flatheads, Kootenays and Upper

Pend d’Oreilles ot July 16, LSdo, 12 Stat. 970 (hereatter

)

“Treaty of Hellgate’’), and 25 U.S.C. 6 381 are reproduced

in the Appendix hereto. The MeCarran Amendment, 43

U.S.C. § 666, is reproduced in the Petitioner’s Appendix.

Section 171.6(a) of Title 25 of the Code of Federal Regu

lations is reproduced in the Appendix hereto.

The following provisions of the Montana Water Use

Act are also reproduced in the Appendix hereto: §§ 85-2-

701 to &5-2-705 and § 85-2-217.

STATEMENT OF THE CASE

Since time immemorial the Salish and Kootenai Tribes

have held aboriginal title to a vast area of land located in

what now comprises the states of Montana and Idaho.!

This vast aboriginal homeland includes the present Flat-

head Indian Reservation which ‘twas a natural paradise

for hunting and fishing.’ The Tribes ‘‘had always exer-

cised their right to hunt and fish thereon from time im-

memorial’’: it was their ancestral home?

The Flathead Indian Reservation, comprising approx-

imately 1,245,000 acres in northwestern Montana, was

reserved by the ‘l'ribes in the ‘Treaty of Hellgate, July 16,

1855.4 In return for rights reserved in tlie treaty, tlie

Tribes agreed to convey substantial portions of their ab

original homelands to the United States.

| The Confederated Salish and Kootenai Tribes v. United

States, 437 F.2d 458, 460, 197 Ct. Cl. 801 (1971). These

tribes are now known as the Confederated Salish and

Kootenai Tribes of the Flathead Reservation (‘Tribes’).

Id. 437 F.2d at 478, 197 Ct. Cl. at 837.

; State v. McClure, 127 Mont. 534, 268 P.2d 624, 632 (1954).

See also Confederated Salish and Kootenai Tribes v. Namen,

665 F.2d 951, 962 (9th Cir. 1982), cert. denied, 429 USS.

929 (1982) (the Kootenai Indians depended heavily on

fishing).

tr

‘ Ratified by the United States Senate on March 8, 1859, 12

Stat. 975, reprinted in the Appendix to this brief at 1 to 9.

See United States v. Winans, 198 U.S. 371, 381 (1905) (“The

treaty is not a grant of rights to the Indians, but a grant of

rights from them—a reservation of those not granted.’’).

Accard Washington v. Fishing Vessel Ass’n, 443 U.S. 658,

678 (1979): United States v. Wheeler, 435 U.S. 313, 327

n. 24 (1978).

In Article Ili of the treaty, the Tribes expressly re-

served and the United States guaranteed that:

The exelusive right of taking fish in all the streams

running through or bordering said reservation is fur-

ther secured to said Indians. ...

l2 Stat. 975 (App. +) By implication the treaty reserved

to the Tribes the exclusive and paramount right to all

waters necessary and convenicit to uses reasonably re-

lated to the purpose for which the Reservation was estab-

lished.?

Congress provided in 1904 that Reservation lands

were to be allotted to Indians and that certain surplus

lands were to be opened to non-Indian settlement pursuant

to the Flathead Allotment Act.6 The 1904 Act also author-

ized the expenditure of tribal funds derived from the pro

ceeds of the sale of tribal lands for the construction of

irrigation works (and for other purposes) to benefit the

Indians.’ The Flathead Indian Irrigation Project

(“FIIP’ or “Project”), which is administered by the

Bureau of Indian Affairs (“BLA’), presently serves both

Indian and non-Indian irrigators.. The FILP operates

See Winters v. United States, 207 U.S. 564 (1908), and

note 25, intra.

Act of Apri! 23, 1904, 33 Stat. 302 (reprinted in Petitioner's

Appendix at A-3 to A-8) (hereafter referred to as “Pet.

App.”). By Presidential proclamation the Reservation was

opened to non-!ndian settlement in 1910, rather than 1909

as alleged by Petitioner. See 3 Kapp 655.

. Act of April 23, 1904, § 14, 33 Stat. 305 (Pet. App. A-7).

The Act of May 29, 1908, 35 Stat. 444 (Pet. App. A-9 to

\-12), amended the Flathead Allotment Act to provide, inter

(Continued on following page

and maintains approximately 1,200 miles of canals and

ditches and 16 reservoirs for irrigation purposes? These

facilities, mostly built on tribal and allotted Indian lands,

have been constructed in such a manner as to be inextric-

ably intertwined with dozens of previously existing natural

streams and lakes within the boundaries of the Reserva-

tion. The operation of the FIIP system directly impacts

the ability of Reservation fisheries to survive and has

the ability to dewater crucial reaches of Reservation

streams.

Montana has been engaged in a general adjudication

of water rights since 1979. See generally §§ 85-2-201 to

80-2-243 MCA (1987). The State of Montana applies its

water adjudication procedures to the waters of Indian

reservations, including the [tlathead, by virtue of the

McCarran Amendment (43 U.S.C. § 666) and this Court’s

holding in Arizona v. San Carlos Tribe of Arizona, 463

(Continued from previous page)

alia, for non-Indians to share in the benefit of the irriga-

tion project authorized in 1904. Even after non-Indians

were allowed to participate in the irrigation project it is

clear that Congress intended the main beneficiaries to be

the Indian allottees. The legislative history of the 1908

amendment to the Flathead Allotment Act states: ‘That

in all probability three-fourths of the irrigable land would

be allotted to Indians.” S. Rep. 1198, 60th Cong., 1st Sess.

2 (1908).

’ Comprehensive Review Report, Flathead Indian Irrigation

Project (1985), at 1-32, 8-3 (Def. Ex. 3). This report was

prepared at the direction of the Secretary of the Interior.

10

See generally Comprehensive Review Report, supra, and

note 15, infra.

6

U.S. 545 (1983) (San Carlos)... However the Montana

Water Use Act provides that the State, through its Re-

served Water Rights Coiipact Commission, may negotiate

compacts with federal agencies and with Indian tribes;

the }rocess of water adjudication is suspended pending

such negotiations. See $$ 85-2-701 to 852-705 and

§ 85-2-217 MCA (1987)- (App.

.

have been engaged in such negotiations with the State

12-15). Beeause the Tribes

at all times pertinent to this ease, the adjudication

of water rights on the Flathead Reservation has been

suspended by operation of state law. In 1986, at the time

this case was pending before the federal district court,

it was anticipated. that the adjudication of water rights

on the Flathead Keservation would not oceur until at

least 1990. Jomt Board of Control v. United States, 852

F.2d 1127, 1130 (9th Cir. 1987) (Pet. App. A-66). Recogniz-

ing that the compact negotiations could not be completed by

1990, the Montana Legislature, in 1987, extended the com-

pletion date for compact negotiations to July 1, 1993."

if the Tribes are unsuccessful in negotiating a compact

with the State, they must file their claims to reserved

11 See Northern Cheyenne Tribe v. Adsit, 721 F.2d 1187 (9th

Cir. 1983) (Upon remand under San Carlos, the Ninth Cir-

cuit instructed the Montana federal district courts to stay,

rather than dismiss, several pending federal water adjudica-

tion lawsuits). In State of Montana v. Confederated Salish

and Kootenai Tribes, -—- Mont. —, 712 P.2d 754 (1985),

the Montana Supreme Court held that the disclaimer pro-

vision found in Montana’s Constitution is not a bar to

state adjudication of Indian and federal water rights and

that the Montana Water Use Act is facially adequate to

adjudicate such rights.

* That statute provides: “This suspension shall be effective

until July 1, 1993 as long as negotiations are continuing

or ratification of a completed compact is being sought.”

§ 85-2-217 MCA (1987

waters within six months, and the adjudication would

then commence. See § 85-2-702(3) MCA (App. 14).

In July 1985, the Reservation faced a_ serious

drought.” The federal manager of the Project, the BLA,

ignored the Tribes’ request to maintain emergency stream

flows and pool levels to protect a core fishery. The

Tribes then requested injunctive relief from the federal

district court. The Petitioner, the Flathead Joint Board

of Control (‘‘Joint Board’’), intervened as a defendant

and contested the Tribes’ request for emergency flows

and pools.'* On August 1, 1985 the district court granted

a temporary restraining order requiring emergency in-

stream flows to protect tribal fisheries from complete

dewatering. Prior to that order, FIIP had routinely

dewatered streamis.!5

3 Confederated Salish and Kootenai Tribes v. Flathead Irri-

gation and Power Project, 616 F. Supp. 1292, 1294, 1298

(D. Mont. 1985). Water availability in the streams was a

much more serious problem in 1985, as compared with

1986, because of lack of crucial precipitation in the period

April through July, 1985. In 1986, precipitation during

those months exceeded the long term average (1951-1980).

Affidavit of Kenn A. Cartier, tribal hydrologist (Court Rec-

ord 33) (hereafter court records are referred to as “CR”).

4 Id. at 1294.

'S For example, Thomas Bateridge, the Tribes’ hydrologist.

introduced unrefuted evidence consisting of stream gauge

data and photography showing that the Jocko River has

been historically completely dewatered below the massive

Jocko ‘“K” diversion during portions of the irrigation sea-

son. Tr., Vol. 3, at 124-125, 135 (App. 22-24). In every year

since gauges were installed (1982 through 1985), these

gauges showed no flow in the Jocko River during portions

of the irrigation season. Id. at 135 (App. 24). The locko

River is considered to contain the most important trout

(Continued on following page)

Shortly after the issuance of the 1985 restraiiing

order, tue Tribes and ihe BLA entered into a stipulation

that required certain minimum flows to be maintained

until October 31, 19385 (Le., after the end of the irrigation

season) to preserve a ‘‘core fishery’? and the suit was

dismissed. Sve 616 bk. Supp. at 1294-95. In that stipu-

lation the government acknowledged the ‘*Tribes’ abor-

iginal rights, as reserved by the Tribes in the Treaty of

Hellgate of 1855... .°’ (Plain. Ex. 1(A)).

Mindful of the 1985 litigation, the BLA determined it

would develop an interim instream flow operational

strategy for the 1986 irrigation season based on a bio-

logically-sound methodology.'® After extensive examination

(Continued from previous page)

fishery within the Reservation, albeit beleaguered by the

FIP. See Affidavit of Paul David Cross, at 6 (CR 15). The

Petitioner asserts that the Project’s hydrologic technician

concluded that the “historical flow’ below the Jocko ‘‘K”’

Diversion was approximately 10 cubic feet per second

(cfs) (The Petitioner incorrectly referred to William L.

Slack, the Project’s hydrologic technician, as a hydrologist.

See Tr., Vol. 1, at 98), but neglects to mention that this

technician admitted under cross-examination that the 10

cfs “historical flow” is, in reality, the water that leaks

through the cracks of the diversion structure and _ that,

prior to the 1985 restraining order, the Project never in-

tentionally released any water below the diversion, not-

withstanding its knowledge that this resulted in dewatering

the river for a few miles. Testimony of William L. Slack,

Tr., Vol. 1, at 149-150 (App. 17-18).

te Given financial and time constraints and the approaching

1986 irrigation season, the BIA opted for the application

of the ‘wetted perimeter” instream flow methodology. The

Joint Board's fishery biologist conceded that the decision

to utilize this methodology was reasonable under the cir-

cumstances. (Tr., Vol. 2, at 115-116) (App. 19-20)

of fisheries data, in late July 1986!’ the BIA began to

implement its interim instream flow and reservoir pool

level plan at the Project."® That plan provided a modicum

of protection for the tribal fishery for the remainder of

the 1986 irrigation season. The 1986 plan was explicit

that it was a short-term operational strategy (effective

only for a portion of the 1986 irrigation season) and not a

permanent general stream adjudication or quantification

of water rights:

The [plan] does not purport, nor shall it be inter-

preted to settle or reflect existing uses or claims to

the water rights made or to be made by the Tribes,

FIIP or any person, entity, or governmental agency

within the Flathead Reservation. [It] is a temporary

measure intended to avoid conflicts between comipet-

ing interests during the 1986 irrigation season. Ii

shall not be interpreted as a final precedential deter-

mination of instream flow er reservoir pool levels

adequate to maintain and preserve Flathead Reserva-

tion fisheries resources.

. 1 to Complaint (CR 1).

The directive to implement the plan was received by

Project personnel on July 17, 1986. Joint Board of Control

v. United States, 646 F. Supp. 410, 423 (D. Mont. 1986),

rev'd, 832 F.2d 1127 (9th Cir. 1987). The plan was imple-

mented on or about July 26, 1986 (Complaint at 7: CR 1)

and, under the terms of the plan, it would expire on Octo-

ber 31, 1986. 646 F. Supp. at 419.

Contrary to the Petitioner’s assertion (Pet. 5-7), the 1986

interim instream flow and pool level ‘agreement’ was not

an agreement at all. The “agreement” never received the

approval of either the Tribes or the Joint Board of Control.

Nevertheless, it was the strategy by which the BIA op-

erated the Project during the 1986 irrigation season unti!

enjoined. 832 F.2d at 1129, n. 1 (Pet. App. A-64)

10

Ignoring this explicit qualification, the Joint Board

elecied to invoke federal court jurisdiction and filed suit

to enjoin the plan charging that a de facto adjudication

had been undertaken.’? On August 6, 1986 the district

court granted a temporary restraining order prohibiting

the FILIP from implementing the plan. After a hearing

in late August 1986, the district court entered its order

granting the preliminary injunction on October 16, 1986,

after the irrigation season had ended. The district ecourt’s

opinion indicated that this was a conflict capable of re-

petition vet evading review and undertook to provide

prospective legal guidance to the parties. 646 F. Supp.

at 420 (Pet. App. A-47, A-60). The district court said

i! exercised its jurisdiction in the recognition that it would

be vears before the Montana water adjudication reached

the Flathead Reservation and that emergency contro-

veries need to be resolved. Td. at 415 (Pet. App. A-37,

A-38). This exercise of jurisdiction was approved by the

Ninth Cireuit, which stated:

There is a clear federal policy to permit general water

rights and adjudications to be performed in_ state

courts. Colorado River Water Conserralton District

vr. United States, 424. U.S. 800, 96 S.Ct. 1236, 47

L.Ed.2d 483 (1976). Federal actions brought for the

purpose of determining water rights will generally be

dismissed in favor of concurrent state court proceed.

ings. See, eg. Arizona v. San Carlos Apache Tribe

of Arizona, 468 U.S. 545, 108 S.Ct. 3201, 77 L.Ed.2d

837 (1983). At the time of the district court’s deei-

sion, the State of Montana was in the process of

19 In 1987, the Joint Board again invoked the jurisdiction of

the same court in its unsuccessful attempt to enjoin the

BIA’s 1987 operational strategy for this irrigation project.

Joint Board of Control v. United States, No. CV-87-107-M

D. Mont. 1987), appeal filed, CA No. 87-4106 (9th Cir.).

1]

determining water rights within the state [footnote

notation omitted], an undertaking expected to con-

sume many years.

In the meantime, however, controversies like the

present one arise and must be decided. See Kittitas

Reclamation Dislrict v. Sunnyside Valley Irrigation

District, 763 F.2d 1032 (9th Cir. 1985), cert. denied,

474 U.S. 1032, 106 S. Ct. 593, 88 L.Ed.2d 573 (1985).

The district court recognized that faet in ruling that

it would not defer decision in favor of a state water

rights adjudication that might not reach the Flat-

head Reservation until 1990. Joint Board. 646 ¥.

Supp. at 414-415.

Se2 F.2d at 1130-31 (Pet. App. A-66).

The district court’s opinion took care to state that it

was not engaging in an adjudication of the water rights

of any party on the Reservation, but rather was providing

interim guidance to the exercise of discretion of a federal

agency. 646 I". Supp. at 417-18 (Pet. App. A-43, A-44).

While it undertook no quantification of water rights,

the district court’s attempt to provide substantive pros-

pective legal guidance extended well beyond that necessary

to resolve the interim dispute. The opinion announed a

rule for the allocation of ‘‘all waters of the Reservation’?

(whether or not affected by FLIP operations). 646 F.

Supp. at 426 (Pet. App. A-60). The district court based

this rule upon the ‘‘just and equal distribution’’ standard

found in the Dawes act*°—a standard which applies only

to water distribution “among the Indians” and _ their

successors in interest, ie., to irrigation waters which are

20 Also known as the General Allotment Act. See Act of Feb-

ruary 8, 1887, Ch. 119, §7, 24 Stat. 390, codified at 25

U.S.C. § 381.

equal in seniority. United States v. Powers, 305 U.S. 527,

930 (1939), discussed infra at 15. Although the district

court disclaimed any intent to determine the relative

]

priorities of the parties’ water rights, the priority question

was addressed by the distriet court in its determination

that the ‘‘just and equal distribution’’ standard of the

Dawes Act applied to all Reservation waters, including

the Tribes’ treaty-reserved fishing water right, regardless

of relevant priority dates.

It was this far-reaching prospective effect of the

district court ruling which compelled the Tribes to ap-

peal. The Ninth Cireuit’s unanimous opinion squarely

reversed the district court’s erroneous application of the

‘lust and equal distribution’’ standard to all waters of

the Reservation finding that: ‘‘Onee a court takes juris-

diction to resolve a water right dispute it has a solemn

obligation to follow federal laws that govern Indian

water rights. San Carlos Apache Tribe, 463 U.S. at

O71... .’’ 832 F.2d at 1131 (Pet. App. A-68). The court

of appeals said:

The Tribes in this case contended that they had

exercised aboriginal fishing rights over the territory

and waters in issue. The district court did not permit

the Tribes to make a record on that point. Yet their

claim is clearly a colorable one: we have stated else-

where that one of the Tribes was heavily dependent

on fishing the area when the Treaty of Hell Gate was

signed. Confederated Salish and Kootenai Tribes v.

Namen, 665 F.2d 951, 962 (9th Cir. 1982), cert. denied,

459 U.S. 977, 103 S.Ct. 314, 74 L.Ed.2d 291 (1982).

It was error... for the district court to hold that

water claimed under potentially prior tribal fishing

a

rights must be shared with junior appropriators, and

that the requirement of equitable sharing could be

imposed without addressing the Tribes’ claim of

aboriginal fishing water rights.

832 F.2d at 1131 (Pet. App. A-68).

It is significant that the Petitioner does not submit

for review the principal holding of the Ninth Cireuit re-

garding-the misapplication of the Dawes Act, thus con-

ceding it is correct. Instead the Petitioner shifts ground

by arguing that the Ninth Cireuit has incorrectly man-

dated the district court to adjudicate both the priority

and quantification of water rights on the Reservation.2!

The Ninth Cireuit opinion plainly does not mandate any

permanent quantification. With respect to the priority

question, the court of appeals decision holds that an abor-

iginal rights claim cannot be ignored or relegated to junior

status. See note 25, infra. Thus, the court of appeals re-

versed a concededly improper application of the Dawes

Act and remanded for routine implementation. Accord-

ingly, as discussed below, no important question is pre-

sented for review and certiorari should be denied.

° Pet. at i (Questions Presented). The two questions pre-

sented to the Court by the Petitioner are mutually exclu-

sive interpretations of the court of appeals opinion. The

first question states that the appeals court has directed

the district court to quantify the Tribes’ aboriginal water

right; the second question states that the appeals court

has mandated the BIA to administratively quantify the seme

right.

14

ARGUMENT

THE DECISION OF THE COURT OF AP.-

PEALS IS CORRECT AND PRESENTS NO IS.

SUE OF GENERAL IMPORTANCE WAR.

RANTING REVIEW BY THE COURT, NOR

DOES IT CONFLICT WITH ANY CIRCUIT

COURT DECISION.

The court of appeal’s opinion does not conflict with

the opinion of this Court or any other cireuit court. When

presented with the question, this Court has found no

occasion to review a lower federal court’s determination

to provide a federal forum to resolve interim water dis-

putes involving federal agency administration of Indian

reserved waters which do not involve a general stream

adjudication.?*

The Petitioner does not appeal the central holding of

the court of appeals, thereby conceding that the court of

ippeals was correct in reversing the district court’s

erroneous attempt to apply the Dawes Act’s ‘‘just and

equal distribution’’ standard to all Reservation waters.

The Ninth Cireuit correctly held that this Dawes Act

standard does not apply to an Indian tribe’s aboriginal

22 See Kittitas Irrigation District v. Sunnyside Irrigation Dis-

trict, 763 F.2d 1032 (9th Cir. 1985), cert. denied, 474 U.S.

1032 (1985) (allowing release of instream flow below an

irrigation structure to maintain salmon eggs subject to

treatv fishing rights); United States v. Adair, 732 F.2d 1394

(9th Cir. 1983), cert. den. sub. nom. Oregon v. United

States, 467 U.S. 1252 (1984) (allowing the federal district

court to declare an aboriginal priority date for the Klamath

Tribes’ fishery-based water right); Jicarilla Apache Tribe v

United States, 601 F.2d 1116, 1135 (9th Cir. 1979), cert.

denied, 444 U.S. 995 (1979) (federal district court is proper

forum to entertain an !ndian tribe’s complaint seeking to

enjoin Secretary of Interior's diversion of waters).

| )

right to sufficient stream flow to support treaty-reserved

fisheries. S32 F.2d at 1132 (Pet. App. A-69). Its holding

adheres to this Court’s opinion in United States v. Powers,

B00 U.S. 527, 533 (1939), which makes clear that the

Dawes Act’s ‘‘just and equal distribution’’ of waters ap

plies only when a shortage of water occurs among Indian

allottees or successors to Indian allottees who share thie

same seniority date? See also United States v. Alex-

ander, 131 F.2d 359 (9th Cir. 1942) (same holding with

respect to Flathead Reservation).

The district court’s erroneous water allocation

standard would have required the BLA, as the irrigation

project manager, to treat all Reservation water rights,

whatever their origin or use, as equivalent in priority.

The Ninth Cireuit concluded that such an approach con-

flicts with the doctrine of Indian reserved water rights,

Winters v. United States, 207 U.S. 564 (1908), and thie

western water law doctrine of prior appropriation, sec,

e.g., Morris v. Bean, 146 F. 425 (C.C.D. Mont. 1906) (“first

in time is strongest in right’’).24 The appeals court in-

structed the lower court that any interim water manage-

ment strategy at the irrigation project must comport with

23 Thus, by definition, this water allocation standard does

not apply to water appurtenant to surplus or unallotted

lands on the Reservation, such as homesteaded lands. Be-

cause such water rights are acquired under the prior ap-

propriation doctrine, and not the reserved water rights doc-

trine, their priority date would be junior to that of water

serving allotted lands. See United States v. Anderson, 736

F.2d 1358 (9th Cir. 1984).

24 «B32 F.2d at 1132 (Pet. App. A-68). The Petitioner acknow!l-

edges that a water right priority date is a most valuable

property right. General Agriculture Corp. v. Moore, 166

ey J

Mont. 510, 534 P.2d 859. 863 (1975). (Pet. at 17).

16

federal water law and, consequently, cannot turn a blind

eve to salient priority date considerations such as the

Tribes’ aboriginal fishing right.”

Now that the appellate court has rejected the argu

ment that the Tribes’ fishery water right should be shared

with the irrigatorsZ° the Petitioner argues against the

federal forum # invoked in the first instance on the

vrounds that the court of appeals ruling conflicts with

tN

wa

The appeals court recognized the strength of the Tribes’

claim to an aboriginal fishing right and took particular

notice of the express text of the 1855 Treaty of Hellgate

wherein the Tribes’ reserved the “exclusive right of taking

fish in all the streams running through or bordering said

reservation. .. .” (Pet. App. A-67). The appeals court, re-

ferring to its decision in Confederated Salish and Kootenai

Tribes v. Namen, 665 F.2d 951, 962 (9th Cir. 1982), cert.

denied, 459 U.S. 977 (1982), observed that ‘‘we have stated

elsewhere that one of the Tribes was heavily dependent

on fishing the area when the Treaty of Hellgate was signed.”

832 F.2d at 1130 (Pet. App. A-68). See also United States

v. Adair, 723 F.2d 1394 (9th Cir. 1983), cert. denied, 467

U.S. 1252 (1984) (aboriginal fishing water right found under

similar facts and similar treaty language); Montana v. Con-

federated Salish and Kootenai Tribes, — Mont. —, 712

P.2d 754, 764 (1985) (recognizing aboriginal right where

the preexisting tribal use is confirmed by treaty); State v.

\icClure, 127 Mont. 534, 268 P.2d 624, 632 (1954) (“They

[the Confederated Salish and Kootenai Tribes] had always

exercised their right to hunt and fish thereon from time

immemorial. It was their ancestral home. The treaty con-

firmed their ownership and their rights. . . . These rights

have never passed from the Indians to the people general-

ly, nor to the State, nor to the Federal Govenrment.’’);

United States v. Winans, 198 U.S. 371, 381 (1905) (“The

treaty is not a grant of rights to the Indians, but a grant

or rights from them , reservation of those not granted.’’).

26 ~The Petitioner had urged the district court to effect an

“equitable” sharine of the Tribes’ aboriginal fishing water

roht. See, eg, Plaintiff's Aueust 27, 1986 Brief, at 34 (CR

47)

17

»

the MeCarran Amendment and will result in ‘chaos.’

Pet. at 13.

Petitioner’s argument is misplaced for several rea

sons. First and foremost, the Petitioner incorrectly char-

acterizes the court of appeals decision as “mandating”

that the district court adjudicate the priority and quanti-

fication of the Tribes’ rights. The decision plainly con-

tains no such mandate, neither explicitly nor implicitly.

To the contrary, the Ninth Cireuit panel simply reversed

the lower court and “remanded for such proceedings as

may be appropriate and consistent with this opinion.”

852 F.2d at 1132 (Pet. App. A-70). Thus the underlying

premise of the Petition for Writ of Certiorari is based

on an erroneous reading of the appeals court opinion.

The BIA’s 1986 interim operating strategy for its

irrigation project is simply not a permanent quantifica-

tion of water rights. It does not create, vest nor perman-

ently adjudicate anyone’s water rights. It had a very

brief life: less than fifteen weeks.2”? The operating strat-

egy simply prevented the irrigation project from destroy-

ing the treaty-reserved fishery until such time as the

water rights are permanently quantified. The BLA’s 1986

interim plan to leave some water in the streams and res-

ervoirs for fish implemented the principle established in

the Tribes’ 1985 lawsuit: the irrigation project could no

longer “suck dry the streams of the Flathead Reservation

in derogation of tribal treaty rights.” Joint Board of

Control v. United States, 646 F. Supp. at 426 (Pet. App.

A-60). The BLA, the district court, and the court of ap

peals were each careful to point ont that they were not

See note 17, supra

18

engaging in, and had no intention of engaging in, the per-

manent quantification of water rights on the Flathead

Indian Reservation.78

At all times pertinent to this ease the Tribes and

State of Montana have been actively engaged in compact

negotiations pursuant to state law which favors and en-

courages negotiated settlement of Indian and federal re

served water rights. &§ 85-2-701 to S5-2-705 MCA. While

the Tribes are engaged in forme! negotiations with the

Montana Reserved Water Righ ‘ompact Commission,

all proceedings to adjudicate tribally-reserved waters are

suspended, 85-2-P17 MCA. These negotiations are on

going and could continue to mid-1993 as a result of the

19-7 Montana Legislature’s extension of the compact ne

votiatine time trame. See 85-2-702(3) MCA (App. 14).

For these reasons the Petitioner’s allegation of loom

Ing conflict between the State water adjudication system

and the court of appeals opinion is illusory. The compact

negotiations between the Tribes and the State continue

unfettered. The Ninth Cireuit opimion adheres to the

guidanee set forth in San Carlos. See discussion, supra,

at 10-11. In sum, the court of appeals opinion is not dis

ruptive to Montana’s adjudication of water rights on the

Flathead Reservation because (1) the opinion does not

mandate the federal district court or the BIA to quantify,

(2) the BLA’s interim operating strategy is not a_per-

manent quantification, and (35) state water adjudication

on the Reservation is dormant pending the outcome of

the ongoing compact negotiations.

“8 See discussion supra at 9 (BIA), at 11 (district court) and,

19

Furthermore, this unique and fact-bound case does

not warrant review by this Court because the issue is not

ripe in light of the Ninth Circuit remand to the district

court. Because of the speculative nature of the effect of

the remand, and the lack of a sufficient record in the ab-

sence of such a remand, the case does not provide a suit-

able oceasion for this Court’s review.

The Petitioner claims a violation of due process based

on Project regulations found in 25 C.F.R. Part 171 (Pet.

at 21). The appeals court properly recognized that the

irrigators’ right to consultation pertained only to the

“available irrigation water supply” (25 C.F.R. § 171.6(a))

(App. 11) and not to the Tribes’ treaty-reserved fishery

water right. The appeals court reasoned that no consul-

tation with the Joint Board is required to preserve the

fishery; therefore, no due process consideration was im-

plicated. 832 F.2d at 1182 (Pet. App. A-69). The reason-

ing is sound.

In any event, there was extensive consultation be-

tween the BIA and the Joint Board? The BIA attempted

29 Petitioner also alleges a taking without due process of a

valuable property right—the irrigators’ water rights that

are purported to have arisen out of certain Acts of Con-

gress and actions of the Secretary of the Interior. For ex-

ample, Petitioner alleges that the Secretary issued ‘‘secre-

tarial water rights’’ to non-Indian irrigators, an allegation

the Tribes dispute. (Pet. at 3). No evidentiary record,

however, has been developed in the lower courts to sup-

port this or any other claim to water rights by irrigators.

The repayment contracts the Petitioner cites (Pet. at 4, n. 4)

are likewise not in evidence in the lower courts.

30 «See Affidavit of Bernard Burnham (Ex. B to U.S. Brief: CR

39).

20

to inelude the Joint Board in the interim instream flow

planning process from its inception on October 31, 1985."'

The BIA requested the Joint Board to make its technical

staff, if any, available to participate in the field studies

but the Joint Board declined to do so22 The Joint Board

failed to hire any technical staff until approximately

June 9, 1986, months after the commencement of the ir-

rigation season and fully seven months after the BIA re-

quested its participation in the process. Contrary to the

Joint Board's suggestion, the BLA did not rely exclusively

npon BLA and tribal input in reaching the 1986 flow and

pool figures. See Affidavit of Bernard Burnham (Ex. b

to U.S. Brief: CR 39). In fact, the Tribes refused to sign

an “agreement” proposed by the BIA relative to the 1956

flows. 832 F.2d at 1129 n.1 (Pet. App. A-64).

The Joint Board’s due process analysis hinges on the

false premise that a permanent de facto quantification of

water rights has taken place. This is not the case. The

court of appeals concluded :

The reluctance of the district court to render a final

adjudication of water rights in the [FIIP] is quite

understandable. We do not suggest that the court Is

31s Testimony of Bernard Burnham (Tr., Vol. 3, at 8-9) (App.

20-22).

32 Id. at 17 (App. 22).

Testimony of Michael McDowell, Joint Board Biologist

(Tr.. Vol. 2, at 97) (App. 18). In fact, at the time of the

preliminary injunction hearing the Joint Board biologist

still had no-scientific data to provide to the BIA or to the

district court. Id. at 98-99 (App. 18-19).

21

required to make any such general adjudication or

-

quantification in the course of these proceedings.

832 F.2d at 1132 (Pet. App. A-70). Just as the Ninth

Cireuit opinion does not direct the district court to quan-

tify Reservation water rights, neither does it “mandate”

that the BIA do so. The remand is to the district court

for such further proceedings as the district court deems

appropriate. 832 F.2d at 1132 (Pet. App. A-70). Thus,

the due process question presented by the Petitioner (Pet.

at i) is likewise premised on an erroneous reading of the

court of appeals opinion.

It is clear that senior water rights prevail to their

fullest extent over junior claims. A junior claimant may

not invoke a takings argument simply because his claim

must give way to a senior right. The court of appeals

correctly noted that this is “one of the fundamental prin-

ciples of the appropriative system of water rights. See

e.g., Morris v. Bean, 146 F. 423 (C C.D. Mont. 1906) (| Mon-

tana water law requires that senior rights be fully pro-

tected, even though more economic uses could be made by

junior appropriators).” 832 F.2d at 1132 (Pet. App. A-68).

Finally, further consideration of the Petitioner’s due

process allegation is inadvisable in light of the fact that

the lower court record is undeveloped on the nature of the

rights involved because the district court preeluded such

proof. This Court has consistently recognized the im-

portance of a developed factual record in cases involving

the nature of litigants’ property interests:

Given the “essentially ad hoc, factual inquir[y]” in-

volved in the takings analysis, [cite omitted] we have

found it particularly important in takings cases to

9)

adhere to our admonition that “the constitutionality

of statutes ought not be decided except in an actual

factual setting that makes such a decision necessary.”

[cite omitted] In Virginia Surface Mining, tor ex-

ample, we found that a challenge to the Surface Min-

ine Control and Reclamation Act of 1977 ... was

“premature,” 402 U.S. at 296, n. 37, and “not ripe for

judicial resolution,” Jd., at 297, because the property

owners in that case had not identified any property

that had allegedly been taken by the Act, nor had they

sought administrative relief from the Act's restrie-

tions on surface mining.

Pennell et al. v. City of San Jose, et al., — US. , oO

U.S.L.W. 4168, 4171 (February 24, 1988). For these rea

sons the Petitioner's allegation of a due process viola-

tion lacks merit.

CONCLUSION

For the foregoing reasons, the Confederated Salish

and Kootenai Tribes respectfully request that the Petition

for Writ of Certiorari to the United States Court of Ap-

peals from the Ninth Circuit be denied. 7

Respectfully submitted,

Patrick L. SMITH

Joun B. Carrer

DANIEL Ff’. Decker

CONFEDERATED SALISH

AND KOOTENAT TRIBAL

LEGAL DEPARTMENT

P.O. Box 278

Pablo, Montana 59855

(406) 675-2700

JAMES H. Goretz

Goetz, MappEN & Deny, P.C.

30 North Grand

Bozeman, Montana 59715

(406) 587-0618

Attorne Ys for Confederated

Salish and Kootenai Tribes

April 1988

APPENDIX TABLE OF CONTENTS

Treaty of Hellgate, July 16, 1800, 12 Stat. | App. 1

Act of February 8, 1887, § 7, 24 Stat. 590 wowdipp. LO

25 C.F.R. § 171.6(a) | aa App. 11

Section 85-2-217, Montana Code Annotated ............ App. 12

Section 85-2-701, Montana Code Annotated ..... _App. 18

Section 85-2-702, Montana Code Annotated ....... pp. 13

Section 85-2-703, Montana Code Annotated .... App. 14

Section $5-2-704, Montana Code Annotated .... App. 19

Section 85-2-705, Montana Code Annotated App. 19

PORTIONS OF THE RECORD:

Transeript of Proceedings as

Vol. 1 of 3, pp. 149-90 kde App. 17

Vol. 2 of 3, pp. 97-99, 115-116 7 App. 18

Vol. 3 of 3, pp. 8-9, 17, 124-125, 184-150 ...... App. 20

T

App. 1

JULY 16. 1855 TREATY OF HELLGATE, RATIFIED

BY UNITED STATES SENATE ON MARCH 8, 1899,

12 STAT. 975

Articles of agreement and convention made and concluded

at the treaty-ground at Hell Gate, im the Bitter Root

Valley, this sixteenth day of July, in the year one thou-

sand eight hundred and fifty-five, by and between Tsaac

I. Stevens, governor and superintendent of Indian af-

fairs for the Territory of Washington, on the part of

the United States, and the undersigned chiefs, head-men,

and delegates of the confederated tribes of the Flathead,

Kootenay, and Upper Pend dOreilles Indians, on be-

half of and acting for said confederated tribes, and be-

ing duly authorized thereto by them. It being under-

stood and agreed that the said confederated tribes do

hereby constitute a nation, under the name of the Flat-

head Nation. with Victor, the head chief of the-Flathead

tribe. as the head chief of the said nation, and that the

several chiefs, head-men, and delegates, whose names

are siqned to this treaty, do hereby, im behalf of their

respective tribes, recognize Victor as said head chief.

Articte 1. The said confederated tribe of Indians

hereby cede, relinquish, and convey to the United States

all their right, title, and interest in and to the country

occupied or claimed by them, bounded and deseribed as

follows, to wit:

Commencing on the main ridge of the Rocky Moun-

tains at the forty-ninth (49th) parallel of latitude, thence

westwardly on that parallel to the divide hetween the Flat-

bow or Kootenay River and Clarke’s Fork, thence south-

erly and southeasterly along said divide to the one hundred

and fifteenth degree of longitude, (115°.) thence in a south-

westerly direction to the divide between the sourees of the

St. Regis Borgia and the Coeurd’Alene Rivers, thence

App. 2

southeasterly and sontherly alone the main ridge of the

Bitter Root Monntains to the divide between the head-

waters of the Koos-keos-kee River and of the sonthwestern

fork of the Bitter Root River, thence easterly alone the

divide separating the waters of the several tributaries of

the Bitter Reot River from the waters flowing into the

Selmon and Snake Rivers to the main ridge of the Rocky

Mountains, and thence northerly along said main ridge to

the place of heeinninge.

Articte 2. There is, however, reserved from the lands

above ceded, for the use and oceupation of the said confed-

erated tribes, and as a general Indian reservation, upon

which may be placed other friendly tribes and bands of

Indians of the Territory of Washington who may agree to

be consolidated with the tribes parties to this treaty, under

the common designation of the Flathead Nation, with Vie-

tor, head chief of the Flathead tribe, as the head chief of

the nation, the tract of land ineluded within the following

boundaries, to wit:

Commencing at the souree of the main branch of the

Jocko River; thence along the divide separating the waters

floiwng into the Bitter Root River from those flowing into

the Joeko 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-in-el-em and the Jocko Rivers take their

rise, and thence southerly along said divide to the place of

heginning.

App. 3

All which tract shall be set apart, and so far as neces

sary, surveyed and marked out for the exelusive use and

benefit of said confederated tribes as an Indian reserva-

tion. Nor shall any white man, excepting those in the

emplovment of the Indian department, be permitted to re-

vide upon the said reservation without permission of the

confederated tribes, and the superintendent and agent.

And the said confederated tribes agree to remove to and

settle upon the same within one vear after the ratification

of this treaty. In the meantime it shall be lawful for them

to reside upon any ground not in the actual claim and

occupation of citizens of the United States, and upon any

eround claimed or occupied, if with the permission of the

owner or claimant.

Guaranteeing however the right to all citizens of the

United States to enter upon and occupy as settlers any

lands not actually occupied and eultivated by said Indians

at this time, and not included in the reservation above

named. And provided, That any substantial improvements

heretofore made by anv Indian, such as fields enclosed and

eultivated and houses ereeted upon the lands hereby ceded,

and which he mav be compelled to abandon in consequence

of this treaty, shall be valued under the direction of the

President of the United States, and payment made therefor

in money, or improvements of an equal value be made for

said Indian upon the reservation; and no Indian will be

required to abandon the improvements aforesaid, now oecu-

pied by him, until their value in money or improvements

of an equal value shall be furnished him as aforesaid.

ArticLe 3. And provided, That if necessary for the

public eonvenience roads may be run through the said res-

ervatio t] yt] hand, th ht of wav witl

free access from the same to the nearest pnblie highway

is seenred to them, as also the right in common with eiti-

zens of the United States to travel npon all publie high

The exelusive right of taking fish in all the streams

running through or bordering said reservation is further

secured to said Indians; as also the riecht of taking fish at

all usual and acenstomed places, in common with citizens

of the Territory, and of erecting temporary buildings for

curing: together with the privilege of hunting, gathering

roots and berries, and pasturing their horses and eattle

upon open and unelaimed land.

ARTICLE 4. In consideration of the above eession, the

United States agree to pay to the said confederated tribes

of Indians, in addition to the goods and provisions dis

tributed to them at the time of signing this treaty the sum

of one hundred and twenty thousand doliars, in the follow-

ing manner—that is to say: For the first year after the

ratification hereof, thirty-six thousand dollars, to be ex-

pended under the direction of the President, in providing

for their removal to the reservation, breaking up and fene-

ing farms, building houses for them, and for such other

objects as he may deem necessary. For the next four

years, six thousand dollars each year; for the next five

years, five thousand dollars each year; for the next five

years, four thousand dollars each year; and for the next

five years, three thousand dollars each year.

All which said sums of money shall be applied to the

use and benefit of the said Indians, under the direction

of the President of the United States, who may from time

~ ) ' = ? ‘ =) ’ ’ ? ?

ff

| } ~

nfor ne f+] ly

+ }

\ ) T} nite NS : ( O es

'

isn at s i pont nin said serva Nl me

. é Be . - L< ] . + a ] , . ] ]

vear after the ratification hereot, an agrieultural and in

dustrial school, erecting the necessary buildines. keeping

tha ame r y\< —_— 7 | . n li a4 « it] a } iL.

le same In repalr, and providing With Turniture, DOOKS,

and stationery, to be located at the agency, and to be free

to the children of the said tribes, and to employ a suitable

instructor or instructors. To furnish one blacksmith shop,

to which shall be attached a tin and gun shop; one ear-

penter’s shop; one wagon and plough-maker’s shop; and

to keep the same in repair, and furnished with the neces-

sary tools. To employ two farmers, one blacksmith, one

tinner, one gunsmith, one carpenter, one wagon and plough

maker, for the instruetion of the Indians in trades, and to

assist them in the same. To erect one saw-mill and one

flouring-mill, keeping the same in repair and furnished

with the necessary tools and fixtures, and to employ two

millers. To erect a hospital, keeping the same in repair,

and provided with the necessary medicines and furniture,

and to employ a physician; and to erect, keep in repair, and

provide the necessary furniture the buildings required for

the accommodation of said emplovees. The said buildings

and establishments to be maintained and kept in repair

as aforesaid, and the employees to be kept in service for

the period of twenty years.

And in view of the fact that the head echiefs of the

said confederated tribes of Indians are expected and will

App. 6

be called upon to perform many services of a public char-

acter, occupying muneh of their time, the United States

further agree to vay to each of the Flathead, Kootenay,

and Upper Pend d’Oreilies tribes five hundred dollars per

vear, for the term of twenty years after the ratification

hereof, as a salary for such persons as the said confeder

ated tribes may select to be their head chiefs, and to build

for them at suitable points on the reservation a com-

fortable house, and properly furnish the same, and to

plough and fence for each of them ten acres of land. The

salary to be paid to, and the said houses to be oeeupied

by, such head chiefs so long as they may be elected to that

position by their tribes, and no longer.

And all the expenditures and expenses contemplated

in this article of this treaty shall be defrayed by the United

States, and shall not be deducted from the annuities agreed

to be paid to said tribes. Nor shall the cost of transport

ing the goods for the annuity payments be a charge upon

the annuities, but. shall be defrayed by the United States.

ArticLe 6. The President may from time to time, at

his discretion, cause the whole, or such portion of such

reservation as he may think proper to be surveyed into

lots, and assign the same to such individuals or families

of the said confederated tribes as are willing to avail them

selves of the privilege, and will locate on the same as a

permanent home, on the same terms, and subject to the

same regulations as are provided in the sixth article of

the treaty with the Omahas, so far as the same may be

applicabie.

Articte 7. The annnities of the aforesaid confeder-

ated tribes of Indians shall not be taken to pay the debts

App. 7

ArticLe 8. The aforesaid confederated tribes of In-

dians acknowledge their dependence upon the Government

of the United States, and promise to be friendly with all

citizens thereof, and pledge themselves to commit no

depredations upou the property of such citizens. And

should any one or more of them violate this pledge, and

the fact be satisfactorily proved before the agent, the prop-

erty taken shall be returned, or, in default thereof, or if

injured or destroyed, compensation may be made by the

Government out of the annuities. Nor will they make war

on any other tribe except in self-defense, but will submit all

matters of difference between them and other Indians to

the Government of the United States, or its agent, for de-

cision, and abide thereby. And if any of the said Indians

commit any depredations on any other Indians within the

jurisdiction of the United States, the same rule shall pre-

vail as that prescribed in this article, in case of depreda-

tions against citizens. And the said tribes agree not to

shelter or conceal offenders against the laws of the United

States, but to deliver them up to the authorities for trial.

ARTICLE 9. The said confederated tribes desire to ex-

clude trom their reservation the use of ardent spirits, and

to prevent their people from drinking the same; and there-

fore it is provided that any Indian belonging to said con-

federated tribes of Indians who is guilty of bringing liquor

into said reservation, or who drinks liquor, may have his

or her proportion of the annuities withheld from him or

her for such time as the President mav determine.

ArticLeé 10. The United States further agree to guar-

anty the exclusive use of the reservation provided for in

this treaty, as against any claims which may be urged by

App. 8

the Hndson Bay Company under the provisions of the

treaty between the United States and Great Britain of the

fifteenth of June, eighteen hundred and forty-six, in eon-

sequence of the oceupation of a trading-post on the Pru-in

River by the servants of that company.

ArticLeE 11. It is, moreover, provided that the Bitter

Root Valley, above the Loo-lo Fork, shall be carefully sur-

veyed and examined, and if it shall prove, in the judgment

of the President, to be better adapted to the wants of the

Flathead tribe than the general reservation provided for

in this treaty, then such portions of it as may be necessary

shall be set apart as a separate reservation for the said

tribe. No portion of the Bitter Root Valley, above the

Loo-lo Fork, shall be opened to settlement until such ex-

amination is had and the decision of the President made

known.

Articte 12. This treaty shall be obligatory upon the

contracting parties as soon as the same shall be ratified

by the President and Senate of the United States.

In testimony whereof, the said Isaae I. Stevens, gov-

ernor and superintendent of Indian affairs for the Terri-

torv of Washington, and the undersigned head chiefs,

chiefs and principal men of the Flathead, Kootenay, and

Upper Pend d’Oreilles tribes of Indians, have hereunto

set their hands and seals, at the place and on the day and

year hereinbefore written.

Isaac I. Stevens, [L.S.]

Governor and Superintendent Indian Affairs W.T.

——————

App. 9

Victor, head chief of the Big Canoe, his x mark. [L. S.]

Flathead Nation, his Kootel Chah, his x mark. [L. S.]

x mark. [L.S.] Paul, his x mark. [L. S.]

Alexander, chief of the Andrew, his x mark. [L. S.]

Upper Pendi d’Areilles, Michelle, his x mark. [L. S.]

his x mark. [L.S.] Battiste, his x mark. [L. S.]

Michelle, chief of the Kootenays.

Kootenays, his x mark. {L.S.} Gun Flint, his x mark. — [L. S.]

\mbrose, his x mark. [L.S.] Little Michelle, his x

Pah-soh, his x mark. [L. S.] mark. [L. S.]

Bear Track, his x mark. [L.S.] Paul See, his x mark. [L. S.]

Adolphe, his x mark. [L.S.] Moses, his x mark. [L. S.]

Thunder, his x mark. [L. S.] Henry R. Crosire,

James Doty, secretary.

R. H. Lansdale, Indian

Agent.

W. H. Tappan, sub Indian

Agent.

Gustavus Sohon, Flathead

Interpreter.

A. J]. Hoecken, sp. mis.

William Craig.

App. 10

SECTION 7 OF THE GENERAL ALLOTMENT ACT

(DAWES), ACT OF FEBRUARY 8, 1887, CH. 119, 24

STAT. 390, CODIFIED AT 25 U.S.C. § 381

25 U.S.C. § 381. Irrigation lands; regulation of use of

water

In cases where the use of water for irrigation is neces-

sary to render the lands within any Indian reservation

available for agricultural purposes, the Secretary of the

Interior is authorized to prescribe such rules and regula-

tions as he may deem necessary to secure a just and equal

distribution thereof among the Indians residing upon any

such reservations; and no other appropriation or grant of

water by any riparian proprietor shall be authorized or

permitted to the damage of any other riparian proprietor.

EE

App. 11

EXCERPT OF PROJECT REGULATIONS

20 CARR. 9171.6 Distribution and apportionment of

water.

(a) The Officer-in-Charge will establish the method

of and procedures for the delivery and distribution of the

available irrigation water supply. He will endeavor to

apportion the water at all times on a fair and equitable

basis between all project water users entitled to the re-

ceipt of irrigation water.

App. 12

MONTANA STATUTES

85-2-217. Suspension of adjudication. While nego-

tiations for the conclusion of a compact under part 7 are

being pursued, all proceedings to generally adjudicate

reserved Indian water rights and federal reserved water

rights of those tribes and federal agencies which are nego-

tiating are suspended. The obligation to file water rights

claims for those reserved rights is also suspended. This

suspension shall be cffeetive until July 1, 1993, as long as

negotiatious are continuing or ratification of a completed

compact is being sought. If approval by the state legisla-

ture and tribes or federal agencies has not been accom-

plished by July 1, 1993, the suspension shall terminate on

that date. Upon termination of the suspension of this part,

the tribes and the federal agencies shall be subject to the

special filing requirements of 85-2-702(3) and all other

requirements of the state water adjudication system pro-

vided for in Vitle So, chapter 2. Those tribes and federal

agencies that choose not to negotiate their reserved water

rights shall be subject to the full operation of the state

adjudication system and may not benefit from the suspen-

sion provisions of this section.

Part 7

Indian and Federal Water Rights

85-2-701. Legislative intent. (1) Beeause the water

and water rights within each water division are interre

: 2 ees

App. 13

lated, it is the intent of the legislature to conduct unified

proceedings for the general adjudication of existing water

rights under the Montana Water Use Act. Therefore, it

is the intent of the legislature that the attorney general’s

petition required in 85-2-211 include all claimants of re-

served Indian water rights as necessary and indispensable

parties under authority granted the state by 48 U.S.C. 666.

However, it is further intended that the state of Montana

proceed under the provisions of this part in an effort to

conclude compacts for the equitable division and appor-

tionment of waters between the state and its people and

the several Indian tribes claiming reserved water rights

within the state.

(2) ‘To the maximum extent possible, the reserved

water rights compact commission established under 2-15-

212 should make the negotiation of water rights claimed

by the federal government or Indian tribes in or affecting

»)

the basins identified by 85-2-218 its highest priority,

89-2-702. Negotiation with Indian tribes. (1) The

reserved water rights compact commission, created by 2-

15-212, may negotiate with the Indian tribes or their au-

thorized representatives jointly or severally to conelude

compacts authorized under 85-2-701, Compact proceed-

ings shall be commenced by the commission. The commis-

sion shall serve by certified mail directed to the 2’overn-

ing body of each tribe a written request for the initiation

App. 14

of negotiations under this part and a request for the desig-

nation of an authorized representative of the tribe to con-

duct compact negotiations. Upon receipt of such written

designation from the governing body of a tribe, compact

negotiations shall be considered to have commenced.

(2) When the compact commission and the Indian

tribes or their authorized representatives have agreed to

a compact, they shall sign a copy and file an original copy

with the department of state of the United States of Amer-

ica and copies with the secretary of state of Montana and

with the governing body for the tribe involved. The com-

pact is effective and binding upon all parties upon ratifi-

‘ration by the legislature of Montana and any affected tri-

bal governing body, and approval by the appropriate fed-

eral authority.

(3) Upon its ratification by the Montana legislature

and the tribe, the terms of a compact must be included in

the preliminary decree as provided by 85-2-231, and un-

less an objection to the compact is sustained under 89-2-

233, the terms of the compact must be included in the final

decree without alteration. However, if approval of the

state legislature and tribe has not been accomplished by

July 1, 1993, all Indian claims for reserved water rights

that have not been resolved by a compact must be filed

with the department within 6 months. These new filings

shall be used in the formulation of the preliminary decree

and shall be given treatment similar to that given to all

other filings.

85-2-703. Negotiations with fe deral government, The

compact commission may also enter into separate negotia-

tions with the federal government for the conclusion of

App. 15

compacts concerning the equitable division and apportion-

ment of water between the state and its people and the

federal government claiming non-Indian reserved waters

within the state. ‘ihe terms and conditions of such Nnego-

tiations shall be the same as provided in this section for

negotiations with Indian tribes.

$)-2-704. Termination of negotiations. (1) The com-

mission or any negotiating tribe or federal agency may

terminate negotiations by providing notice to all parties

30 days in advance of the termination date. On the ter-

mination date, the suspension of the application of part 2

provided for in 85-2-217 shall also terminate. The tribe

or federal agency shall file all of its claims for reserved

rights within 6 months of the termination of negotiations.

(2) Once negotiations have been terminated pur-

suant to subsection (1), they may be reopened only by mu-

tual agreement of the parties,

8$)-2-705. Status re ports to chic} water judge. (1)

The Montana reserved water rights compact commission

must submit to the chief water judge, appointed pursuant

2)

to 5-7-221, a report on the status of its negotiations on

July 1, 1985, and every 6 months thereafter.

(2) Kach report must state which Indian tribes and

federal agencies are engaged in negotiations, whether any

negotiations with Indian tribes or federal agencies have

been terminated, and the progress of negotiations on a

tribe-by-tribe and ageney-by-agency basis. The report

must be made available to the public.

App. 16

In The United States District Court

For the District of Montana

Missoula Division

The Joint Board of Control of the Flathead, Mission and

Jocko Irrigation Districts,

Plaintiff,

The United States of America; The United States Depart-

ment of the Interior: The Honorable Donald Hodel,

Secretary of the Interior; The Bureau of Indian Af-

fairs, an agency within the Department of the In-

terior Stanley Speaks, Director, Portland Area Office,

Bureau of Indian Affairs; and the Flathead Irriga-

tion and Power Project, an agency within the Bureau

of Indian Affairs,

Defendants,

and

The Confederated Salish and Kootenai Tribes of the

Flathead Reservation,

Intervenor-Defendant.

Cause No. CV-86-156-M-CCL

App. 17

Excerpts from

TRANSCRIPT OF PROCEEDINGS

VOLUME 1, 2 & 3

BEFORE THE HONORABLE CHARLES C. LOVELL

UNITED STATES DISTRICT COURT JUDGE

HELENA, MONTANA

August 25, 26, and 28, 1986

TESTIMONY OF WILLIAM L. SLACK

VOLUME 1

(p. 149) Q Okay. You said historically, based on

just hearsay around the project from water commission-

ers, the K Canal—there’s about a—10 cfs below the K

Canal passed through of water?

(p. 150) A That’s correct.

~Q Okay. And that’s simply because there’s a leak-

age at the It Canal Diversion, isn’t it?

A Simply because of the leakage, we don’t tradi-

tionally try to stop—

Q But you’re never consciously, until the injunction

last year, tried to release water; you just didn’t try to

stop the leaks?

A That’s correct.

@ And with that 10 cfs leak, there have been periods

when the Jocko below K Canal has historically been de-

watered for a couple miles; is that true?

A I’ve heard that.

TESTIMONY OF MICHAEL MeDOWELL

VOLUME 2

(p. 97) Q Okay. Now, we’ve asked, of course, in

discovery for the results, and it’s my understanding that

you haven’t finished vour studies?

A No. The studies are not complete.

Q@Q Okay. And so would it be the case that the re-

sults of your studies were not available on June 26 when

the biologists met to select inflection points

A No. I was in the field at that time initiating field

studies.

Q Initiating the field studies?

AL had started about a week and a half before then,

but | was engaged in field studics at that time.

Q So at that date you had only had about a week

(p. 98) and a half worth of work under your belt?

A That’s correct.

Q Okay. And the reason I’m interested in that is

had you been at the June 26 mecting, you would not have

been in a position to offer much information based on your

IF IM studies at that meeting; you would agree with that?

A No. That’s correct.

App. 19

Q And, similarly, on July 10, when Mr. Speaks in

the Portland area office issued the first proposal to—

proposed agreement to set flows by, then you’d been in

the field another 14 days perhaps?

A That’s correct.

@ And you would not have had much in the way of

results to offer at that point from—based on your 1F1M?

A No. The fieldwork was still in progress.

Q And, likewise, on July 18 when Mr. Brooks was

or 1/-—in that area—when they were directed to implement

those instream flows, you wouldn’t have much to offer

from your [FIM?

A Again, the fieldwork was in progress.

@ And the same on August 6 when we had che tem-

porary restrauung order matter before this Court—you

wouldn’t have mveh to offer then?

(p. 99) A There were no results from the study at

that point.

Q@ And, indeed; the affidavit you offered—or the

counsel for Joint Board offered-—-had no incorporation or

reference other than to the fact that you were doing the

[FIM -didn’t incorporate any results at that time?

A That's correct.

(p. 115) Q Well, let’s assume that they didn’t have

much of that work done by the spring of ’86. And eiven

the fact that we needed some flow figures for the 1986 low

ee

App. 20

water period, then under those constraints, it would not

have—it was not unreasonable for them to have selected

VV «

the wetted perimeter method, was it?

A The wetted perimeter method certainly allowed

them to derive data on which they could base recommen

dations within the time frame that they had.

() Professional recommendations professionally

t

justifiable under the constraints, eiven the constraints?

(p. 116) A It was certainly—the study was accept

ably done.

TESTIMONY OF BERNARD L. BURNHAM

VOLUME 3

(p. 8) Q (By Mr. Brooks) Were you involved with

the development ef the 1986 interim flow plan for the

Flathead Indian—or Flathead Irrigation project?

A Yes, I was.

Q What's the nature of the involvement with that

plan?

A Primarily, coordination role of the BIA area of

fice activity as it related to the development of that plan.

i

() And tell us how and when planning efforts were

initiated tor the ’86 plan.

A Out of the stipulated agreement that was devel

oped in 1985—August of 1985—one of the stipulations in

that agreement required the bureau to initiate water con

App. 21

servation management planning. And I believe it was in

September of °85 that we bevan to work on some of the

planning ettort that would extend over into the operation

season for ‘S86,

() Did vou contact the Joint Board and the Tribes

(Pp. 4) in September ot ’Sd5 ?

A Yes. After telephone communications, and so

+ -

forth, subsequent to the °S85 stipulated agreement, we in

: = ;

the area office put together a task ontline as we perceived

how the planning would take place and submitted that in

]

September tor review by both the Confederated Tribes

and the Joint Board

Q Did you meet with the Tribes and the Joint Board

)

to diseuss the task outline and the plan?

A Yes, we did. We met at the end of October.

(Q Did you meet with them together or separately?

A We met with them separately.

() Did you—had you solicited written comments on

}

your proposals from them?

A Yes. <At both meetings with the Joint Board and

the Tribes, we requested that thes eXPress their Input in

writing to us.

)

Q Did you receive input in writing from the Tribes?

() When did vou receive that?

A As I reeall, it was in January of ’S6.

Q Did you receive written input from the Joint Board

App. 22

A Yes, we did.

(p. 17) Q Who did you talk with on the telephone?

A Mr. Mikkelsen.

() Were they able to participate in the field studies

at that time?

A I don’t know if—of their capability, as far as be-

ing able to, but they were requested to, and the opportu-

nity was therefor them to participate, if they desired and

chose to do so.

Q Did they tell you we’re not coming, or just not

show up, or can you explain a little more clearly?

A I don’t know as the invitation was declined, but

in terms of the fieldwork that took place, there was no

one—na_one_ attended our fieldwork.

Q You made no secret of what and when you were

doing the fieldwork?

A No.

TESTIMONY OF THOMAS BATERIDGE

VOLUME 3

(p. 124) Q Now, Mr. Bateridge, while you’re still

up here—this is a little disjointed, but I think it would be

more efficient.

Did you obtain a photograph from your natural re-

sources—trom the Tribes’ natural resources department?

App. 23

And I’m handing you what is marked as Defendant’s Ex-

hibit N.

A Yes, I did.

And what does that depict generally?

A This photo depicts no water flowing at the Teresa

Adams Bridge on the Jocko River on August 5, 1985.

Q And is that normaily kept—that photograph—in

the course of business in the natural resources department

at the Tribes?

A Yes, it is.

(p. 125) MR GOETZ: Your Honor, we have a slide

of this that I’ve marked a print of as Defendants’ Exhibit

N and would offer that.

(Whereupon, Defendants’ Exhibit N was offered into

evidence. )

THE COURT: Any objection to this?

MR. HOVEN: No objection, Your Honor.

THE COURT: It will be admitted.

(Whereupon, Defendants’ Exhibit N was admitted into

evidence. )

Q (By Mr. Goetz) I'll turn on the slide projector.

Would you explain when that picture was taken and what

it depicts?

A It was taken August 5, 1985, and it depicts a—

the channel at the upstream point, I believe, of the Teresa

Adams Bridge. And it shows the large cobbles and boul-

App. 24

ders in that channel]. And there is, obviously, no flow in

the river at that time.

() And where is the Teresa Adams Bridge in rela-

tion to the K Cana! Diversion?

A The bridge is approximately two and a half miles

downstream from the K Diversion.

Q Thank you. Would you take your seat, Mr. Bat-

eridge.

A (Witness complied.)

(p. 184) Q I want to focus your attention on the

Jocko (p. 135) River below the K Canal and the estimate

by Mr. Slack of 10 to 15 enbie feet per second leakage, his-

torically, through the dam into the river. Does the—has

that resulted in a flow in the river—that leakage—

throughout the reach below the K Canal?

A No, it has not. As the photo demonstrated, there

are times when there is no flow in the Jocko River. The

Tribes’ water resourees program began gauging the Jocko

River at the Teresa Adams Bridge in September of 1982.

And there were periods in all of the five years—’82, ’83,

84, and “85—when there was no flow at the Teresa Adams

sridge.