POW-WOW . . . UNITED STATES FEDERAL GOVERNMENT, OVER NAVIGABLE WATERS . . . BLACK'S LAW DICTIONARY, DEFINES IT AS A TERM APPLIED TO A BODY OF WATER THAT IS NAVIGABLE BY BOAT OR SHIP . . . 10TH AMENDMENT, THE POWERS NOT DELEGATED TO THE UNITED STATES BY THE CONSTITUTION, NOR PROHIBITED BY IT TO THE STATES, ARE RESERVED TO THE STATES RESPECTIVELY, OR TO THE PEOPLE . . . MONTANA CONSTITUTION, ENABLING ACT, INDIAN TRIBES, THE SOLE JURISDICTION OF THE FEDERAL GOVERNMENT, ALL WATERS IN THE STATE, GROUND WATER, SPRING WATER, SURFACE WATER, ETC., BELONGS TO THE STATE--ONLY NAVIGABLE WATERS, BELONG TO THE FEDERAL GOVERNMENT! ONLY THE FEDERAL GOVERNMENT CAN MAKE TREATIES, ALLIANCES & CONFEDERATION WITH THE INDIANS, U.S. CONSTITUTION, ARTICLE I, SECTION 10! I DON'T CARE IF MONTANA HAS MADE 13 TO 18 COMPACTS IN THE PAST, THEY CAN'T DO IT! A COMPACT BY ANY OTHER NAME, IS AN ALLIANCE! HELLGATE TREATY ANALYSIS, REPUBLISHED, SAVE THE TAX PAYERS, $55 MILLION AND LET THE FEDERAL GOVERNMENT DO THEIR DUTY!

What is NAVIGABLE?

Capable of being navigated; that may be navigated or passed over in ships or vessels.

Law Dictionary: What is NAVIGABLE? definition of NAVIGABLE (Black's Law Dictionary) 

Clarice Barnes, I think, last name is, very involved in the water compact, on the Flathead, with the Salish-Kootenai Indian Tribes . . . ask people at the Republican Pachyderm meeting, held today, Friday, at noon, to help the Flathead County Commissioners, define the word, navigable, which I did several times, in the last two years, in both written and oral arguments to the Montana Legislature.  The deadline for the definition, which is often what the law boils down to, it tonight, I think, if I was listening, at 11:59 p.m., so there it is, and here is the analysis I did a year ago . . . save the bucks!

HELLGATE TREATY OF 1855: Implied Contract With Appurtenant Water to Meet Needs

Prepared for Senator Verdell Jackson, by JoAnn S. Secrist, J.D.

Constitutional Law Attorney, Member of the United States Supreme Court Bar

September 25, 2013, at Super I, Kalispell, Montana

WATER COMPACT = CONTRACT TERMS + IMPLIED RIGHTS CONNECTED TO USE, OCCUPATION & BENEFIT

Contract law: offer, acceptance and consideration on the part of both sides

• CONSIDERATION IS SOMETHING OF VALUE ON EACH SIDE

• implied contract: using services which would indicate a contract, rational basis that rights connected to contract are valid, those things necessary to carry out the terms of the contract
• you have to look at the entirety of the treaty, history, intent, constitutionally, fiduciary responsibilities of federal government, relationship with states, and with tribes
• this was to provide the Indian tribes with a viable homeland, in exchange for the Indians to cede, relinquish and convey their property

OFFER

• UNDER THE COMMON DESIGNATION OF THE FLATHEAD NATION, WITH VICTOR, HEAD OF THE FLATHEAD TRIBE, AS THE HEAD CHIEF OF THE NATION

• that implies water sufficient for their needs for use and occupation of the said confederated tribes
• reservation was surveyed and marked out for the exclusive use and benefit of said tribes
• however, the right to all citizens of the United Sates can enter upon and occupy as settlers any lands not actually occupied and cultivated by said Indians at that time and not including in the reservation above named
• free access to nearest public highway, right in common with citizens of the United States to travel upon all public highways
• exclusive right of taking fish in reservations
• waters that will sustain salmon and fish indigenous to the stream running through and bordering the reservation
• now tribes can’t sell oil, gas and coal leases, then cry foul when the water is polluted, they have an implied duty to protect their own water systems
• right of taking fish at all usual and accustomed places, in common with citizens of the territory
• may imply state fishing license and limits
• of erecting temporary buildings for curing--imply water those buildings might need?
• privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land
• this may imply a need for state hunting license?

ACCEPTANCE

•   in consideration of the above cession, the United States agree to pay to the said Confederated tribes of Indians, in addition to the goods and provisions distributed to them at the time of signing this treat the sum of one hundred and twenty thousand dollars in the following manner:
• first year after ratification, thirty-six thousand dollars, under direction of the President, in providing for their
• removal to the reservation
• breaking up and fencing farms--implied agricultural water rights
• building houses for them--water rights for home use
• and for such other objects as he may deem necessary  
• as things unfold on the reservation--open clause for future growth; however the U.S. Supreme Court has said that is hard to quantify, due to the fact that land may never be sold, projected growth may not occur
• money is to be applied to the use and benefit
• under the direction of the President, who may from time to time determine, at his discretion, upon what beneficial objects to expend the same for them
• and the superintendent of Indian affairs, or other proper officer, shall each year inform the President of the wishes of the Indians in relation thereto
• the United States further agree to establish at suitable points within said reservations:
• agriculture and industrial school, erecting the necessary building, keeping the same in repair, and providing it with furniture, books and stationary,--water
• blacksmith shop, attached tin and gun shop, carpenter’s shop, wagon and plough maker, for the instruction of the Indians in trades, and to assist them in the same
• sawmill and flouring mill, keeping the same in repair and furnished with the necessary tool and fixtures, medicines and furniture, and to employ a physician
• to erect, keep in repair, and provide the necessary establishments to be maintained and kept in repair as aforesaid, and the employees to be kept in service for the period of twenty years
• water rights implied--even though the term of agreement is for 20 years, water rights attached or needed, would not stop after the time allotted
• pay $500 per year to selected chiefs, so long as them may be elected to that position by their tribes, and no longer
• all expenditures and expenses contemplated in this article of this treat shall be defrayed by the United States, not deducted from the annuities agreed to be paid to said tribes
• nor shall the cost of transporting the goods for the annuity payments be a charge upon the annuities, but shall be defrayed by the United States--NOT MONTANA!
• THE PRESIDENT (not governor of Montana) may survey into lots, assign families as are wiling to avail themselves of the privilege, and will locate on the same as a permanent home, on the same terms as the sixth article--obvious implied water right
• tribes promise to be friendly with all citizens, commit no depredations upon the property of citizens
• shall one or more of them violate this pledge, and the fact be satisfactorily proved, the property take shall be returned, or in default, or is injured or destroyed, compensation may be made by the Government out of the annuities
• nor will they make war with other tribes, but will submit all matters of difference to the Government of the United States, same with for depredations to citizens
• tribes agree not to shelter or conceal offenders against the laws of the United States, but deliver them up to the authorities for trial (DUI, Montana state legislator?)
• Bitter Root Valley, above the Loo-lo Fork, carefully surveyed and examined, in judgement of President, to be better adapted to the wants of the Flathead tribe than the general reservation provided for in this treaty, may be set apart as a separate reservation for the said tribe--no part of this area opened to the settlement until such examination is had and decision of the President made known

TREATY OBLIGATORY UPON CONTRACTING PARTIES

• treaty submitted to Senate of the United States for their constitutional action
• confederated tribes constituted a nation under the name of the Flathead Nation, signed 16th day of July, 1855

Winters v. U.S. 207 U.S. 564 (1908)

• Water rights were impliedly reserved for Indians, sufficient water to fulfill purposes of the reservation, or the land would be useless.

Arizona v. California, 373 U.S. 546 (1963)

• United States Supreme Court, in this case, mentions many of these factors in quantifying water rights for the Indian tribes:
• agricultural purposes
• past use
• tribal history
• uses that promote tribal culture--Montana Constitution does mention, the states one obligation is to promote Indian culture in schools
• present and future population--courts have struck that down, hard to determine, if it happens at all . . . so still connected to
• proposed master land use plan
• list is not exclusive
• latitude to determine tribal water rights
• a difficult and time consuming process
• water rights vested at the time the reservation was created and the treaty ratified

Antoine v. Washington, 420 U.S. 194, 199 (1975)

• Statutes construed in favor of the Indians.  Indian lands . . . unsold was not restored to public domain, retained status as Indian lands--lands retained for the benefit, federal water rights inherent of that status
• only feasible and fair was in which reserved water for the reservation can be measured is in irrigable acreage

U.S. v. Dion, 476 U.S. 734, 738 (1986)

• United States Supreme Court has required that “Congress’s intention to abrogate Indian treaty rights be clear and plain.”  1904 agreement does not expressly or impliedly surrender any water rights for unsold lands that the lands held prior to the enactment of statutory intent.

State of Wyoming v. U.S. Department of Justice

McCarren Amendment, 43 U.S.C. 666

(Hope I got that citation right--can’t read my writing from yesterday!)

• reservations for use and occupation
• statutes in Wyoming in securing water rights
• irrigation of such lands as shall remain of said Indians within territory or reservation (ceded)
• ceded land was restored to Indians--tribal ownership
• lands sold from Indian allotees reacquired for Indians
• implied water rights, federal reserved water rights for Indians (Winters v. U.S. 207 U.S. 564 (1908)

WALTON RIGHTS

• U.S. intended to reserve necessary water--once established may not be lost

INDIAN WATER RIGHTS AND THE FEDERAL TRUST RESPONSIBILITY

By Robert Anderson, Natural Resource Journal, p. 399--Vol. 46.

Courts are all over the place--GOAL SHOULD BE TO SATISFY THE TRIBAL NEEDS--bottom line

• courts should award sufficient water for other uses that make the reservation a viable homeland
• should give more rather than less
• include water for: domestic, commercial, municipal, industrial purposes
• preserve fish and wildlife
• should actively seek partnership with Indian tribes and protect tribal resources
• broad homeland purposes in addition to advancing the PIA standard for reservations with agricultural purposes
• in stream flow to protect on and off reservation fishing rights
• there is a fear that courts might manipulate legal standards to reduce tribal shares to water and protect non-Indian uses
• opt for settlement negotiations to quantify their rights
• focus of courts may put emphasis on protecting federal treasury and less rather than moral obligation
• can provide substantial economic benefits to tribes

CONCLUSION

• success--federal government assist and encourage negotiations
• provide lion’s share of funding to implement agreement and negotiated settlement
• take into account inequitable treatment in the past
• historical water context
• transparent analysis of the tribal claims to water, tribes deeds, potential federal liability, and other benefit to settlement
• support pre-litigation to arrive at solutions

PERSONAL, HOPEFULLY EDUCATED OPINION

• Hellgate Treaty itself, implies other uses beyond only agricultural purposes
• the treaty, when taken in the contextual foundation of other United States Supreme Court cases, really, if you connect all the dots, covers all aspects of the landscape or menu of cases
• Montanans, Indian tribes, and U.S. Government Officials, need to do the homework necessary to reach an agreeable settlement
• plain language, intent and history are the clue to an implied contract, which is totally consistent with the stream of U.S. Supreme Court cases up to this point
• we are where we are . . . now save the time, money and energy
• this is not an all or nothing thing--treaty suggests otherwise
• in any good compromise, parties give up something and parties get something--nobody gets to be 100% happy
• use the guiding principles of the courts listed here--and by no means exclusive, but a good overview
• attorneys on both sides have the background, knowledge and hopefully good faith to do what it takes to pull off a successful settlement agreement
• this is not about ego, but what is right . . .
• get rid of bad actors, don’t need them, not warranted--have clean hearts and hands in this--futures depend on it
• truly believe Cowboys and Indians will save this country, don’t have time for in-fighting
• the law is the law, is the law--we are where we are!!!!!!
• Get it done . . .

Sincerely,

/s/JoAnn S. Secrist, J.D.