Montana v. United States (1981)


This was a request for advice concerning a major First Nations/Wasichu water rights decision. I am sorry to say that not much advice was forthcoming.]

Advice is sought regarding the Supreme Court's decision in Montana v. United States (1981) which appears to contradict the "canons of treaty construction" which state:

  • that treaty ambiguities must be resolved in favor of the Indians

  • that treaties must be interpreted as the Indians would have understood them

  • that treaties must be construed liberally in favor of the Indians. The decision also appears to violate the "reserved rights doctrine" in that no specific mention of any limitation concerning the Big Horn River was made in the 1868 treaty.

    In 1868 the Second Treaty of Fort Laramie set aside approximately 8,000,000 acres, including land through which the Big Horn River flowed, for a reservation that would be "set apart for the *absolute* and *undisturbed use and occupation*" of the Crow Tribe and that no non-Indians except agents of the government "shall ever be permitted to pass over, settle upon, or reside in" the reservation. As is Wasichu's modus operandi, subsequent acts of Congress reduced the reservation to slightly fewer than 2.3 million acres. "Today, roughly 52 percent of the reservations is allotted to members of the Tribe and held by the United States in trust for them, 17 percent is held in trust for the Tribe itself, and approximately 28 percent is held in fee by non-Indians. The State of Montana owns in fee simple 2 percent of the reservation, the United States less than one percent." Federal Indian Law, Cases and Materials, Getches, Wilkinson, and Williams, West Publishing Company, St. Paul, Minn., ISBN 0-314-02268-6

    Well, over time, one thing lead to another and the Crow Tribal Council passed resolutions that shut the door on hunting and fishing on the reservation to anyone who was not a member of the Tribe. Understandably, Wasichu was upset and the State of Montana asserted their assumed authority to regulate hunting and fishing on the reservation so as to allow Wasichu access (justified on the basis of equal footing doctrine). Surprising?

    The Crows were "given" this land in 1868 by the Federal Government.

    The United States, in defense of its wards, brought suit against the State of Montana to defend the Crow's right to the the *absolute* and *undisturbed use and occupation* of land granted to them by the Treaty of Fort Laramie, 1868.

    The issue in question was "whether the United States conveyed beneficial ownership of the riverbed [Big Horn] to the Crow Tribe by the Treaties of 1851 [in which no "land" was mentioned] or 1868 [in which it was], and therefore continues to hold the land in trust for the use and benefit of the Tribe, or whether the United States retained ownership of the riverbed as public land which then passed to the State of Montana upon its admission to the Union." [Federal Indian Law, Cases and Materials, Getches et al] In 1960 a statute codified as 18 U.S.C. 1165 specifically notes that the term "lands" includes waterways.

    The Supreme Court decided in favor of Montana:

    "according to the equal footing doctrine, the federal government holds land under navigable waterways in trust for the states to be granted to the states when they 'enter the Union and assume sovereignty on an equal footing with the established States."American Indian Law, Cases and Materials, Clinton-Newton-Price, The Mitchie Company, ISBN 0-87473-710-9
    My understanding is that this "right to reserve" was established in U.S. v. Rio Grande Irrigation Company (1899) which of course occurred well after 1868.

    The fact that this land was "set apart for the *absolute* and *undisturbed use and occupation*" seems indisputable. That in 1868 neither the Crows nor Wasichu were thinking of a "river bottom" seems logical also. As noted in Winters v. United States (1908):

    By the rule of interpretations of agreements and treaties with the Indians, ambiguities occurring will be resolved from the standpoint of the cannot be supposed that the Indians were alert to exclude by formal words every inference which might mitigate against or defeat the declared purpose of themselves...even if it could be supposed that they had the intelligence to foresee the ‘double sense' which might be some time urged against them.


    When Indian treaties were negotiated a century ago there was no question that...a metes and bounds description was sufficient to vest all territorial rights in the tribe. Since that was the practice at the time, it is not surprising that Indian treaties do not commonly identify enclosed waters. If it stands [Montana v. United States], the rule...would work [towards] a retroactive confiscation of most tribes' submerged reservation lands. Barsh & Henderson, Contrary Jurisprudence: Tribal Interests in Navigable Waterways Before and After Montana v. United States, 56 Wash. L. Rev. 627, 682 (1981)

    That the Court's decision was in violation of the canons of construction is obvious-to me at the very least! My questions are:

  • Why was not the fact that the treaty was established prior to the equal footing doctrine "legally" relevant in this case?

  • Why was not the 1970 Court decision in Choctaw Nation v. Oklahoma relevant wherein it was stated that "The natural inference ...was that all land within their meters and bounds was conveyed, including the banks and bed of rivers. To the extent that the documents speak to the question, they are consistent with and tend to confirm this natural reading. Certainly there was no express exclusion of the bed of the Arkansas River by the United States..." nor an express exclusion regarding the Big Horn.

  • Does not the activity of non-tribal members on that portion of the Big Horn River falling within the reservation area violate the treaty right granted which states that "no non-Indians except agents of the government shall ever be permitted to pass over, settle upon, or reside in" the reservation? This activity by Wasichu appears to relate not to the riverbed but instead to the actual water. Is there a difference between the two? I am told that U.S. v. Cappaert (D. Nev. 1974) was the first case "to confirm that indigenous reserved rights pertain to sub-surface as well as surface water," but do not have access to specifics. Can anyone provide a synopsis of this decision?

  • Why was the fact that the canons of construction were disregarded not relevant? Are there any requirements that treaty interpretations strictly adhere to the canons of construction? Any assist I might receive regarding the above will be greatly appreciated.


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