State Ex Rel. Greely v. Mt. Water C ( 1986 )

IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA, ex rel., MIKE GREELY,
Attorney General, WATER COURT OF THE
STATE OF MONTANA and THE JUDGES OF THAT
COURT,
Petitioners,
THE CONFEDERATED SALISH AND KOOTENAI
TRIBES OF THE FLATHEAD RESERVATION,
THE CROW TRIBE OF INDIANS OF THE CROW
RESERVATION, THE NORTHERN CHEYENNE TRIBE
OF THE NORTHERN CHEYENNE RESERVATION,
and THE NORTHERN CHEYENNE RESERVATION,
and THE UNITED STATES OF AMERICA, . ,.-- %.
Individually and as Trustee for the
Blackfeet Indian Nation of the Blackfeet
Reservation, the Chippewa-Cree Tribes of
the ~ o c k yBOY'S Reservation, the Confeder-
ated Salish and Kootenai Tribes of the
Flathead Reservation, The Crow Tribe of
' FILED JAN 2 3 1986
the Crow Reservation, the Gros Ventre,
Sioux and Assiniboine Tribes of the Fort
,,
CLERK OF SCIPXEf8:
?fl J,ln i.t*:4 *n
.r\T
Belknap and Fort Peck Reservations, the ~TATE
OF R ~ L I Lr ni.A
Northern Cheyenne Tribe of the Northern
Cheyenne Indian Reservation, and the Turtle
Mountain Chippewa Tribe, a North Dakota
Tribe with allotments to land in the State
of Montana,
Respondents.
O R D E R
Having reviewed its opinion in the above-captioned case
and having found certain clerical errors,
IT IS ORDERED that the opinion shall be amended as
follows:
1
(1) Page 10, paragraph 2, following the quotation
reads:
- Carlos
San
The Court
Apache, 4 6 3 U.S. at 5 6 4 .
did not, however, rule upon
whether the Amendment has removed state
limitations, such as Montana ' s
constitutional disclaimer.
This paragraph shall be amended so that the last sentence
immediately follows the citation to - Carlos Apache, as
San
follows:
- Carlosnot, however, U.S. at 564. The
San
Court did
Apache, 463
rule upon whether
the Amendment has removed state
limitations, such as Montana 's
constitutional disclaimer.
(2) Page 13, line 6 aeads:
people." in Art. I, Mont. Const. 1972.
The period following "people" shall be deleted so that this
line reads:
people" in Art. I, Mont. Const. 1972.
(3) Page 13, line 11 reads:
We hold that Art. I, Mont. Const. 1972 does not
prohibit
A comma shall be interested after "1972" so that this line
reads :
We hold that Art. I, llont. Const. 1972, does not
prohibit
(4) Page 13, fourth full paragraph, second to last sentence
reads :
Indian reserved water rights are created or
recognized by federal treaties, statutes or
executive order, and are governed by federal law.
This sentence shall be amended to read:
\
Indian reserved water rights are created or
recognized by federal treaty, federal statute or
executive order, and are governed by federal law.
(5) Page 14, first full paragraph, third sentence reads:
The United States Supreme Court held that the 1888
agreement which resulted in creation of the Fort
Belknap Indian Reservation implied a reservation of
water along with the expressed right to exclusive
possession of the land.
Commas shall be inserted following "agreement" and
"Reservation" so that this sentence reads:
The United States Supreme Court held that the 1888
agreement, which resulted in creation of the Fort
Belknap Indian Reservation, implied a reservation
of water along with the expressed right to
exclusive possession of the land.
(6) Page 14, first full paragraph, quotation from Winters
reads : -
The Indians had command of the lands and the
water-command of all their beneficial use, whether
kept for hunting, 'and grazing roving herds of
stock," or turned to agriculture and the arts of
civilization.
The hyphen shall betchanged to a dash so that the quotation
reads :
The Indians had command of the lands and the water
-- command of all their beneficial use, whether
kept for hunting, "and grazing roving herds of
stock," or turned to agriculture and the arts of
civilization.
(7) Page 16, first full paragraph, line 4 reads:
85-2-231 (1)(c), 85-2-234 (4) & (6) and 85-2-701
through -705,
A comma shall be inserted following (6), so that this line
reads: $ +
85-2-231 (1)(c), 85-2-234 (4) & (6) , and 85-2-701
through -705,
(8) Page 16, last sentence reads:
It is sufficiently broad to allow adjudication of
water reserved to protect tribal hunting and
fishing rights, including from the depletion of
streams below a protected protection level.
This sentence shall be amended to read:
It is sufficiently broad to allow adjudication of
water reserved to protect tribal hunting and
fishing rights, including protection from the
depletion of streams below a protected level.
(9) Page 17, second full paragraph, last citation is to R.
Collins, Indian Allotment Water Rights, 20 Land a.nd qater Law
Review 421, 426 fn. 20 (1985). The explanatory information
in the parenthesis reads:
(decree of water with "immemorial date of priority"
to Gila River Tribes, whose members have been
irrigators before European contact; decree of water
with reservation priority to Apaches, who had not
previously irrigated.)
This parenthetical note shall be amended to read: ,
b
(decree of water with "immemorial date of priority"
to Gila River Tribes, whose members had been
irrigators before European contact; decree of water
with reservation priority to Apaches, who had not
previously irrigated).
(10) Page 1 9 , l i n e 9 r e a d s :
The Supreme C o u r t h e l d t h a t , u n d e r . t h e
T h i s l i n e s h a l l b e amended t o r e a d :
The Supreme C o u r t h a s a l s o h e l d t h a t u n d e r t h e
(11) P a g e 20, second f u l l paragraph, t h i r d sentence reads:
I t may b e a r g u e d t h a t t h e s e s t a t u t e s m i g h t a l l o w a n
i m p r o p e r l i m i t a t i o n on I n d i a n r e s e r v e d r i g h t s
r e s u l t i n abandonment f o r n o n u s e .
An "or" shall be inserted after "rights" so that this
sentence reads:
I t may b e a r g u e d t h a t t h e s e s t a t u t e s m i g h t a l l o w a n
improper l i m i t a t i o n on I n d i a n r e s e r v e d rights or
r e s u l t i n abandonment f o r n o n u s e .
(12) Page 2 3 , l a s t p a r a g r a p h , s e c o n d s e n t e n c e r e a d s :
A l t h o u g h f e d e r a l w a t e r r i g h t s c a n b e r e s e r v e d by
implication, l i k e Indian reserved r i g h t s under
W i n t e r s , t h e y a r e n o t b a s e d upon t r e a t i e s .
The f i r s t comma s h a l l b e d e l e t e d t o t h a t t h i s s e n t e n c e r e a d s :
A l t h o u g h f e d e r a l w a t e r r i g h t s c a n b e r e s e r v e d by
implication l i k e Indian reserved r i g h t s under
W i n t e r s , t h e y a r e n o t b a s e d upon t r e , a t i e s .
M
-
DATED t h i s z 1 3 ~ day o f J a n u a r y , 1 9 8 6 .
Justices r
No. 84-333
I N THE SUPREME COURT OF THE STATE OF MONTANA
1985
STATE OF MONTANA, e x r e l . , MIKE GREELY,
A t t o r n e y G e n e r a l , WATER COURT OF THE
STATE OF MONTANA a n d THE JUDGES OF THAT
COURT.,
Petitioners,
THE CONFEDERATED SALISH AND KOOTENAI
TRIBES OF THE FLATHEAD RESERVATION,
THE CROW TRIBE OF INDIANS OF THE CROW
RESERVATION, THE NORTHERN CHEYENNE TRIBE
OF THE NORTHERN CHEYENNE RESERVATION,
a n d THE UNITED STATES OF AMERICA,
I n d i v i d u a l l y and as T r u s t e e f o r t h e
Blackfeet Indian Nation o f t h e Blackfeet
R e s e r v a t i o n , t h e Chippewa-Cree T r i b e s o f
t h e Rocky B o y ' s R e s e r v a t i o n , t h e C o n f e d e r -
a t e d S a l i s h and Kootenai T r i b e s o f t h e
F l a t h e a d R e s e r v a t i o n , The C r o w T r i b e o f
t h e Crow R e s e r v a t i o n , t h e Gros V e n t r e ,
Sioux and A s s i n i b o i n e T r i b e s o f t h e F o r t
B e l k n a p a n d F o r t Peck R e s e r v a t i o n s , t h e
N o r t h e r n Cheyenne T r i b e o f t h e N o r t h e r n
Cheyenne I n d i a n R e s e r v a t i o n , a n d t h e T u r t l e
M o u n t a i n Chippewa T r i b e , a N o r t h D a k o t a
Tribe w i t h a l l o t m e n t s t o land i n t h e S t a t e
o f Montana,
Respondents.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For P e t i t i o n e r s :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena., M.ontana
C l a y R. S m i t h a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a
Hon. W. W. L e s s l e y a r g u e d , C h i e f Water J u d g e , Bozeman,
Montana ; S a r a h A r n o t t a r g u e d , W a t e r M a s t e r , Bozeman
For Respondents:
G o e t z , Madden & Dunn; James H . G o e t z a r g u e d f o r
C o n f e d e r a t e d S a l i s h a n d K o o t e n a i T r i b e s , Bozeman,
Montana : a l s o , D a n i e l F. D e c k e r a r g u e d , P a b l o ,
Montana
Byron H . D u n b a r , US A t t o r n e y , B i l l i n g s , Montana
W i l l i a m P. Horn, Under S e c r e t a r y US D e p t . of t h e
I n t e r i o r , W a s h i n g t o n , DC
P a t r i c k B a r r y , D i v i s i o n o f I n d i a n Lands a n d N a t u r a l
R e s o u r c e s , U D e p t . o f J u s t i c e , W a s h i n g t o n , DC
S
A l l e n E. Rowland, P r e s i d e n t , N o r t h e r n Cheyenne T r i b a l
C o u n c i l , Lame Deer, Montana
Norman H o l l o w , C h a i r m a n , F o r t P e c k T r i b a l E x e c u t i v e
B o a r d , P o p l a r , Montana
( c o n t i n u e d , n e x t page)
(Respondents, continued)
Robert S. Pelcyger, Boulder, Colorado
Donald Stewart, Sr., Admin. Cha.riman, Crow Tribal
Council, Crow Agency, Montana
Thomas E. Luebben, Albuquergue, New Mexico
Joseph R. Membrino, Jr., Asst. Solicitor, Div. Indian
Affairs, US Dept. of Interior, Washington, DC
Blake A. Watson argued, Land & Natural Resources Div.,
Washington, DC
Reid Peyton Chambers; Sonosky, Chambers & Sachse,
Washington, DC
Francis X. Lamebull, Harlem, Montana
Franklin R. Perez, President, Fort Belknap Comm.
Council-, Harlem, Montana
John Windy Boy, Chairman, Chippewa Cree Tribe, Box
Elder, Montana
Richard LaFromboise, Chairman, Turtle Mountain
Chippewa. Tribe, Belcourt, North Dakota
Joseph Felsman, Chairman, Confederated Sa.lish &
Kootenai Tribes, Pabl-o,Montana
Earl Old Person, Chairman, Blackfeet Tribe, Browning,
Montana
Joseph J. McKay, Browning, Montana
Calvin Wilson, Busby, Montana
Philip E. Ray, Browning, Montana
For Amicus Curiae:
Jeanne S. Whiteing argued for Native American Rights
Fund, Boulder, Colorado--/- ' ' '"
Steve Bunch argued, Montana Legal Services, Helena,
Montana
Nancy Richardson, Montana Legal Services, Browning,
Montana
D. Michael Eakin, Montana Legal Services, Billings,
Montana
Submitted: April 111 1985
Decided: December 18, 1985
Filed: DEC 1 8 1985
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
On July 13, 1979, this Court ordered the statewide
adjudication of all water rights in Montana to be commenced
pursuant to S 85-2-212, MCA. On August 3, 1984, the State of
Montana, ex rel. Mike Greely, Attorney General, filed an
application for writ of supervisory control of the Montana
Water Court and the judges of that court. The State asked
this Court to assume original jurisdiction to determine two
issues: (1) Is Montana's Water Use Act adequate to adjudicate
federal and Indian reserved water rights? (2) Does Article I
of the Montana Constitution prohibit the Water Court from
asserting jurisdiction over reserved water rights held in
trust by the United States for Indians and Indian tribes
within the State of Montana? Both of these issues were
raised in the federal courts but left unresolved in San
Carlos Apache Tribe v. Arizona and Montana v. Northern
Cheyenne Tribe (1983), 463 U.S. 545, 570 fn. 20, reh. denied
104 S.Ct. 209-10; Northern Cheyenne Tribe v. Adsit (9th Cir.
1983), 721 F.2d 1187, 1188.
The Attorney General requested permission to make an -
ex
parte presentation in support of the State's application for
the extraordinary writ. We granted this request. However,
prior to the State's presentation, the Confederated Salish
and Kootenai Tribes petitioned for permission to participate
as amicus curiae. This Court scheduled limited oral argument
on the question of whether it should assume original
jurisdiction over the State's application. The Water Court
joined the State in requesting permission to proceed to
adjudicate Indian and federal reserved water rights.
Following argument before this Court en banc, we assumed
original jurisdiction to exercise supervisory control over
the Water Court and to determine three questions of first
impression regarding water rights in Montana. Supreme Court
Order No. 84-333, dated January 23, 1985; State ex rel.
Greely v. Water Court of State (1984), 691 P.2d 833, 835, 41
St.Rep. 2373, 2375. For purposes of oral argument on the
substantive issues, this Court designated the State and the
Water Court as co-petitioners. Both requested permission for
the Water Court to proceed to adjudicate reserved water
rights. The United States of America, all of the Indian
tribes in Monta.na, and a North Dakota tribe with allotments
to land in Montana were designated as respondents. State -
ex
rel. Greely, 691 P.2d at 840, 41 St.Rep. at 2382.
The Montana tribes petitioned to withdraw as named
parties and to appear as amici curiae. These petitions were
granted. The Turtle Mountain Chippewa Tribe 'of North Dakota
never respond.ed to these proceedings. On its own motion, the
Court dismissed the Turtle Mountain Chippewa Tribe as a. named
respondent. The Confederated Salish and Kootenai, the Crow
and the Northern Cheyenne Tribes later filed motions to be
reinstated as parties to this proceeding. Their motions were
granted pursuant to San Carlos Apache, 463 U.S. at 566 f n .
17. These four Montana Indian tribes remain as individually
named respondents. The United States of America, appears
individually and as trustee for all the tribes with land in
, ,<,.
ex
i >
Montana. State rel. Greely, 691. P.2d at 840, 41 St.Rep.
at 2382.
The issues for determination are:
1. Is the Water Court of Montana prohibited from exer-
cising jurisdiction over Indian reserved water rights based
on Article I of the 1972 Montana Constitution?
2. Is the Montana Water Use Act, Title 85, Chap. 2,
MCA, adequate to adjudicate Indian reserved water rights?
3. Is the Water Use Act, Title 85, Chap. 2, MCA,
adequate to adjudicate federal reserved water rights?
We hold that Art. I, Mont. Const. 1972 does not bar
state jurisdiction to adjudicate Indian reserved water rights
in Montana. We hold the Montana Water Use Act adequate on
its face to adjudicate Indian and federal reserved water
rights.
Is the Water Court prohibited from exercising
jurisdiction over Indian reserved water rights based on Art.
I, Mont. Const. 1972?
Article I, Mont. Const. 1972, entitled "Compact with the
United States," guarantees that:
All provisions of the enabling act of
Congress (approved February 22, 1889, 25
Stat. 676), as amended and of Ordinance
No. 1, appended to the Constitution of
the state of Montana and approved Febru-
ary 22, 1889, including the agreement and
declaration that all lands owned or held
by any Indian or Indian tribes shall
remain under the absolute jurisdiction
and control of the congress of the United
States, continue in full force and effect
until revoked by the consent of the
United States and the people of Montana.
Several of the tribes argue that consent of the people
of Montana has not been given to the State to adjudicate or
control water on Indian lands. The tribes assert that a
popular vote of the people on. a constitutional amendment is
required. They argue that the consent of the people to
Congress' revocation of absolute federal jurisdiction over
Indian water rights cannot be granted by legislative
enactment.
Montana was admitted to statehood in 1889. As a
prerequisite to admission to the Union, a federal Enabling
Act required North Dakota, South Dakota, Montana and
Washington to hold constitutional conventions and declare:
That the people inhabiting sa.id proposed states do
agree and declare that they forever disclaim all
right and title to ...
all lands ...
owned or
held by any Indian or Indian tribes ...
and that
said Indian lands shall remain under the absolute
jurisdiction and control of the congress of the
United States, ...
The Enabling Act, S 4 Second; 25 Stat. 676 (1889). In
response to this requirement, Montana adopted Ordinance No.
I, Second f1889), and disclaimed any right or title to Indian
lands. This Ordinance was "irrevocable without the consent
of the United States and the people of ... Montana."
Ordinance No. I, Sixth (1889).
Similar disclaimer language was incorporated into the
constitutions of many of the western states, including
Alaska, Arizona, Idaho, New Mexico, North Dakota, Oklahoma,
South Dakota, Utah, Washington and Wyoming. See San Carlos
Apache, 463 U.S. at 561 fn. 12. Colorado was admitted to the
Union in 1876 and was not required to insert a disclaimer in
its constitution. The reason Montana was subject to a
disclaimer requirement and Colorado was not "has more to do
with historical timing than with deliberate congressional
selection." - Carolos
San Apache, 463 U.S. at 562. However, a
substantial majority of Indian land, including most of the
largest Indian reservations, lies within states with
disclaimers in their constitutions. San Carlos Apache, 463
U.S. at 561.
Montana has seven Indian reservations with tribal claims
to reserved water rights on the Tongue River and Big Horn
River in the Yellowstone Basin, Milk and St. Mary systems,
Rig Muddy and Poplar River systems, tributaries of the
Missouri River, Flathead River system, Marias River system,
Flathead Lake with the Flathead River system, and the
Rootenai River. Western Network, What Indian Water Means -
To
- - 58-61 (1982).
the West Indian reservations in Montana are
considerable in size and the potential amount of water
reserved is tremendous.
In 1952, Congress diminished the scope of absolute
federal jurisdiction by allowing state courts concurrent
jurisdiction to adjudicate federal water rights. The
McCarran Amendment gave consent for the United States to be
joined as a defendant in any suit:
(1) for the adjudication of rights to the use of
water of a river system or other source, or (2) for
the administration of such rights, where it appears
that the United States is the owner of or is in the
process of acquiring water rights by appropriation
under State law, by purchase, by exchange, or
otherwise, and the United States is a necessary
party to such suit.
43 U.S.C. 5 666(a). "By enacting the McCarran Amendment,
Congress waived the sovereign immunity of the United States
to involuntary joinder as a party in state court general
water rights adjudications." United States v. City and
County of Denver (Colo. 1983), 656 P.2d 1, 9.
The McCarran Amendment did not expressly waive the
sovereign immunity of 1ndia.n tribes. Nevertheless, the
United States Supreme Court held in 1976 that the McCarran
Amendment applied to Indian water rights. Colorado River
Water Cons. Dist. v. U.S. (1976), 424 U.S. 800, 809.
The Colorado River decision resolved two questions that
had not been previously addressed. First, the Court
concluded that the effect of the Amendment was to give
concurrent state and federal jurisdiction over controversies
involving federal rights to the use of water. Second, the
Amendment extended state jurisdiction to Indian reserved
rights as well as federal reserved rights. Colorado River,
424 U.S. at 809 " [Blearing in mind the ubiquitous nature of
Indian water rights in the Southwest, it is clear that a
construction of the Amendment excluding those rights from its
coverage would enerva.te the Amendment's objective." Colorado
River, 424 U.S. at 811.
Prior to the 1976 Colorado River decision allowing state
courts to adjudicate Indian reserved water rights, Montana
adopted a new constitution. Article I of the 1972 Montana
Constitution declares that all Indian lands in Montana "shall
remain under the absolute juri.sdiction and control of the
congress of the United States ... until revoked by the
consent of the United States and the people of Montana." The
Constitutional Convention incorporated the federal Enabling
Act requirements into the new Constitution based upon the
requests of various tribes and upon the State's continued
commitment to follow federal law with respect to Indian
lands. VII Montana Constitutional Convention 2567-68 (1972).
Montana's new constitution also includes an article
pertaining to water rights. Article IX, § 3, Mont. Const.
1972 states that:
(1) All existing rights to the use of any waters
for any useful or beneficial purpose are hereby
recognized and confirmed.
(2) The use of all water that is now or may
hereafter be appropriated for sale, rent,
distribution, or other beneficial use, the right of
way over the lands of others for all ditches,
drains, flumes, canals, and aqueducts necessarily
used in connection therewith, and the sites for
reservoirs necessary for col-lecting and storing
water shall be held to be a public use.
(3) All surface, underground, flood, and
atmospheric waters within the boundaries of the
state are the property of the state for the use of
its people and are subject to appropriation for
beneficial uses as provided by law.
(4) The legislature shall provide for the
administration, control, and regulation of water
rights and shall establish a system of centralized
records, in addition to the present system of local
records.
On June 6, 1972, the people of Montana ratified the
constitution, as submitted to them by the Constitutional
Convention. The new constitution became effective on July 1,
1973. Pursuant to Art. IX, $ 3!4), Mont. Const. 1972, the
legislature enacted the Water Use Act of 1973. Sec. 2, Ch.
452, L. 1973. The Water Use Act of Montana became effective
July 1, 1973.
The Attorney General's petition asks this Court to
determine whether Art. I, Mont. Const. 1972, prohibits the
Water Court of Montana from adjudicating Indian reserved
water rights. The Attorney General asserts that the
constitutional disclaimer was intended to have the same scope
as the federal Enabling Act. He argues that Art. I restricts
state jurisdiction only to the extent required by federal
preemption standards, and that state adjudication of Indian
reserved water rights is no longer preempted by federal law.
The Water Court encourages this Court to bend to federal
Indian policy and to avoid piecemeal adjudication of water
rights by allowing the state court to adjudicate Indian
reserved rights in Montana.
The tribes argue that the disclaimer cannot be repealed
by implication and that express language must be employed to
change a constitutional provision. They assert that the most
that the McCarran Amendment may have accomplished is to give
federal consent to the people of Montana to amend their
constitution. They argue that until amended, the disclaimer
remains a separate and independent barrier to state
jurisdiction over Indian lands and Indian water on the
reservations.
The United States of America contends that the McCarran
Amendment removed all federal obstacles to state jurisdiction
and that the people of Montana manifested their consent by
enacting the Water Use Act.
Various tribes and the Native American Rights Fund, as
amicus curiae, argue that the constitutional disclaimer
stems from peace treaties between the United States and the
tribes. In these treaties, the Indians agreed to subject
themselves to federal law and the United States agreed to
assume exclusive jurisdiction and responsibility for the
protection of the Indians and their lands. The State of
Montana was carved out of a territory where Indian
reservations existed prior to Montana's statehood in 1889.
The constitutional disclaimers of 1889 and 1972 recognize the
federal government's exclusive jurisdiction over Indian lands
within the state.
The United States Supreme Court has stated that:
[Wlhatever limitation the Enabling Acts or federal
policy may have originally placed on state-court
jurisdiction over Indian water rights, those
limitations were removed by the McCarran Amendment.
San Carlos Apache, 4 6 3 U.S. at 5 6 4 .
The Court did not, however, rule upon whether the Amendment
had removed state limitations, such as Montana's
constitutional disclaimer.
[T]o the extent that a claimed bar to state
jurisdiction in these cases is premised on the
respective State Constitutions, that is a question
of state law over which the state courts have
binding authority.
San Carlos Apache, 4 6 3 U.S. at 5 6 1 .
Art. I, Mont. Const. 1972 provides that all Indian lands
shall remain under the absolute jurisdiction and control of
the Congress until revoked by the consent of the United
States and the people of Montana. The term "the people"
appears fourteen times in the Preamble and the first three
articles of our Constitution. "The framers used the term
'the people' as a shorthand reference to the citizens of the
entire State of Montana." Anaconda-Deer Lodge County v.
Lorello (1979), 181 Mont. 195, 197, 592 ~ . 2 d 1381, 1382.
In State ex rel. McDonald v. District. Ct. of Fourth
J.D. (1972), 159 Mont. 156, 496 P.2d 78, the Confederated
Salish and Kootenai Tribes challenged the State's assumption
of criminal jurisdiction over the Flathead Indian Reservation
without a constitutional amendment of the disclaimer clause.
This Court held that the "consent of the people of the
state," as used in Ordinance I, Sec. 2 of the Montana
Constitution (1889), did not require a constitutional
amendment. Congress had authorized states to assume criminal
and civil jurisdiction on Indian reservations under Public
Law 280, 67 Stat. 588, 590 (1953). Section 7 of Public Law
280 provides in pertinent part:
The consent of the United States is hereby given to
any ... State not having jurisdiction with
respect to criminal offenses * * *, as provided for
in. this Act, to assume jurisdiction at such time
and in such manner as the people of the State
shall, by affirmative legislative action, obligate
and bind the State to assumption thereof.
In 1963, the Montana legislature enacted SS 83-801 through
83-806, R.CM, in substance obligating the State to assert
criminal jurisdiction over Indians on the Flathead Indian
Reservation. Amendments to the original Public Law 280
required tribal consent. That consent was granted on the
Flathead Reservation by enactment of a tribal ordinance. See
McDonald, 159 Mont. at 160-61, 496 P.2d at 80-81.
McDonald argued that without a constitutional amendment
by popular vote of the people, the state court could not
assert jurisdiction under Public Law 280. This Court
construed Public Law 280 and Montana's constitutional
disclaimer as follows:
Ordinance I, Sec. 2 of the Montana Constitution
simply provides that all Indian lands "shall remain
under the absolute jurisdiction and control of the
congress of the United States." This requirement
was imposed by the United States upon the people of
Montana as a precondition of statehood. Over 60
years later the United States Congress, in the
exercise of its absolute jurisdiction and control
over Indian lands, enacted Public Law 280 granting
the state of Montana criminal jurisdiction over
offenses committed by Indians on Indian
reservations upon amendment of its constitution or
statutes, where necessary, to remove any legal
impediment. Congress could at any time repeal
Public Law 280 and terminate any jurisdiction of
the state courts of Montana over crimes committed
by Indians on Indian Reservations. Thus Indian
lands "remain under the absolute jurisdiction and
control of the congress of the United States'
within the meaning of Montana Constitution,
Ordinance I, Sec. 2. Accordingly, no constitu-
tional amendment is necessary or required.
McDonald, 159 Mont. at 163, 496 P.2d at 81-82. The Court
found the reasoning in two Washington cases to be persuasive.
The state of Washington, under like constitutional
provisions as Montana's, has held that the "consent
of the people" necessary to revoke Washington's
constitutional requirement that Indian lands "shall
remain under the absolute jurisdiction and control
of the congress of the United States" may be
accomplished by legislative enactment and does not
require a vote of the people on a constitutional
amendment. State v. Paul, 53 Wash.2d 789, 337 P.2d
33 (1959); Makah Indian Tribe v. State, 76 Wash.2d
485, 457 P.2d 590 (1969). While we recognize we
are not bound by this determination and that
"consent of the people" does not necessarily mean
the same thing in Washington's constitution as it
does in Montana's constitution, the reasoning in
Paul and Makah is nonetheless persuasive.
McDonald, 159 Mont. at 163-64, 496 P.2d at 82. The Court
held that the legislative enactment of session laws was "a
valid and binding consent of the people of Montana to
criminal jurisdiction by state courts over Indians committing
criminal offenses on the Flathead Indian Reservation pursuant
to Public Law 280." McDonald, 159 Mont. at 165, 496 P.2d at
We recognize that Montana's assertion of Public Law 280
jurisdiction on the Flathead Reservation has i o bearing on
z
the presence or absence of state jurisdiction over Indian
water rights. In fact, Public Law 280 specifically withheld
from state courts jurisdiction to adjudicate ownership or
right to possession of "any water rights." 25 U.S.C.
§ 1322 (b) . However, our interpretation of the phrase
"consent of the people," as discussed in McDonald, is
applicable to our holding here regarding "consent of the
people." in Art. I, Mont. Const. 1972.
We conclude that the legislature's enactment of the
Water Use Act constitutes a valid and binding consent of the
people of Montana to Congress ' grant of state jurisdiction
over Indian reserved water rights.
We hold that Art. I, Mont. Const. 1972 does not prohibit
the Water Court of Montana from exercising jurisdiction over
Indian reserved water rights.
I1
Is the Montana Water Use Act adequate to adjudicate
Indian reserved water rights?
State appropriative water rights and Indian reserved
water rights differ in origin and definition. See State ex7
- Greely, 691 P.2d at 841-42, 41 St.Rep.
rel. at 2383-85.
State-created water rights are defined and governed by state
law. See Art. IX, 5 3(4), Mont. Const. 1972; 5 85-2-101,
MCA. Indian reserved water rights are created or recognized
by federal treaties, statutes or executive order, and are
governed by federal law. The Water Use Act of Montana was
amended in 1985 to better reflect these distinctions.
Most western states, including Montana, adopted the
prior appropriation doctrine under which water is apportioned
on the basis of use. "As between appropriators, the first in
time i.s the first in right." Section 85-2-401 (1), MCA. An
appropriator is generally entitled to a specified quantity of
water so long as actual, beneficial use is made of the water.
See S 85-2-404, MCA. Generally, an appropriator of a
state-created right must divert, impound or withdraw water to
appropriate. See S S 85-2-102 (1) & 85-2-234 (5)(g), MCA.
The doctrine of reserved water rights conflicts with
prior appropriation principles in several respects. Indian
reserved water rights were first enunciated in Winters v.
United States (1908), 207 U.S. 564. The United States
Supreme Court held that the 1888 agreement which resulted in
creation of the Fort Belknap Indian Reservation implied a
reservation of water along with the expressed right to
exclusive possession of the land. Winters, 207 U.S. at
575-76. The Court implied a reservation of water to
accomplish the purposes of the treaty agreement. Quoting the
treaty, the Court held tha.t the amount of water reserved must
be sufficient to allow the Indians to become a "pastoral and
civilized people."
The Indians had command of the lands and the
waters-command of all their beneficial use, whether
kept for hunting, "and grazing roving herds of
stock," or turned to agriculture and the arts of
civilization.
Winters, 207 U.S. at 576.
Appropriative rights are based on actual use.
Appropriation for beneficial use is governed by state law.
Reserved water rights are established by reference to the
purposes of the reservation rather than to actual, present
use of the water. The basis for an Indian reserved water
right is the treaty, federal statute or executive order
setting aside the reservation. Treaty interpreta.tion and
statutory construction are governed by federal Indian law.
The federal courts have developed canons of construction
in Indian law that recognize the federal trust responsibility
to Indians. Although originally applied to interpretation of
treaties, these judicial canons of construction have also
been applied in the a.rea of statutory construction. Northern
Cheyenne Tribe v. Hollotp~breast (1976), 425 U.S. 649, 655 fn.
7; Squire v. Capoeman (1956), 351 U.S. 1, 6-7.
Any ambiguity in a treaty must be resolved in favor of
the Indians. Washington v. Fishing Vessel Ass'n (1979), 443
U.S. 658, 675-76; Confederated Salish & Kootenai Tribes, Etc.
v. Namen (9th Cir. 1982), 665 F.2d 951, 962, cert. denied 459
U.S. 977 (1982). Treaties must be interpreted as the Indians
themselves would have understood them. Fishing Vessel Ass'n,
443 U.S. at 676; Choctaw Nation v. Oklahoma (1970), 397 U.S.
620, 631. Indian treaties must be liberally construed in
favor of the Indians. Tulee v. Washington (1942), 315 U.S.
681, 684-85; United States v. Walker River Irr. Dist. (9th
Cir. 1939), 104 F.2d 334, 337.
Foremost among these federal Indian law principles is
that "the treaty is not a grant of rights to the Indians, but
a grant of rights from them -- a reservation of those not
granted." United States v. Adair (9th Cir. 1983), 723 F.2d
1394, 1412-13, cert. denied 104 U.S. 3536 (19841, quoting
IJnited States v. Winans (1905), 198 U.S. 371, 381. See also,
Fishinq Vessel Ass'n 443 U.S. at 678 & 680-81; United States
v. Wheeler (1978), 435 U.S. 313, 327 n. 24; Mlamath Ind.
Tribe v. Or. Dept of Fish & Wildlife (9th Cir. 1984), 729
F.2d 609, 611.
Treaties do not implicitly diminish aboriginal holdings.
Uninterrupted use and occupation of land can create
"aboriginal title." See United States v. Kla.math Indians
(1938), 304 U.S. 119, 122-23; Adair, 723 F.2d at 1413. Only
the United States can extinguish such aboriginal title.
United States v. Tillamooks (1946), 329 U.S. 40, 46. An
Indian reservation will be defined to protect any
pre-existing possessory rights of the Indians unless a
contrary intent clearly appears in the document or statute
that created the reservation. United States v. Santa Fe
Pacfic R. Co. (1941), 314 U.S. 339, 353-54. " [S]tatutes
passed for the benefit of the Indians are to be liberally
construed and all doubts are to be resolved in their favor."
Hollowbreast, 425 U.S. 649, 655 n. 7. When adjud.icating
Indian reserved water rights, Montana courts must follow
these principles of construction developed by the federal
judiciary.
Montana's Water Use Act, as amended, permits the Water
Court to treat Indian reserved water rights differently from
state appropriative rights. See S S 85-2-224 ( 3 ) ,
85-2-231 (1)(c) , 85-2-234 (4) & (6) and 85-2-701 through -705,
NCA. The Act recognizes and confirms "existing rights to the
use of any waters for any useful or beneficial purpose."
Section 85-2-101(4), MCA. "Existing right1'means a right to
the use of water which would be protected under the law as it
existed prior to July 1, 1973. Section 85-2-102(8), MCA.
The definition of "beneficial use" in the Act includes:
"use of water for the benefit of the appropriator, other
persons, or the public, including but not limited to
agricultural (including stock water), domestic, fish and
wildlife, industrial, irrigation, mining, municipal, power,
and recreational uses. " Section 85-2-102 (2), MCA. This
definition recognizes nonconsumptive and instream uses for
fish and wildlife. It is sufficiently broad to allow
adjudication of water reserved to protect tribal hunting and
fishing rights, including from the depletion of streams below
a protected protection level. See Adair, 723 F.2d at 1411,
citing Cappaert v. United States (1976), 426 U.S. 128, 143.
The Act permits tribes to negotiate with the State and
agree upon the extent of the reserved water rights of each
tribe. Section 85-2-702, MCA. In order to be binding, a
negotiated compact between the State and tribe must be
ratified by the Montana legislature and the tribe. Section
85-2-702 (3), MCA. The terms of any ratified compact must be
included in the Water Court's final decree without
alteratj-on, unless the State and the tribe have given prior
written consent. Section 85-2-234(2), MCA.
The date of priority of an Indian reserved water right
depends upon the nature and purpose of the right. In many
instances, the federal government's plan to convert nomadic
Indians into farmers involved a new use of water. If the use
for which the water was reserved is a use that did not exist
prior to creation of the Indian reservation, the priority
date is the date the reservation was created. Arizona v.
California (1.963), 373 U.S. 546, 600 (irrigation held to be a
new use with an 1865 priority date). A different rule
applies to tribal uses that existed before creation of the
reservation. Where the existence of a preexisting tribal use
is confirmed by treaty, the courts characterize the priority
date as "time immemorial." Adair, 723 F.2d at 1414. See R.
Collins, Indian Allotment Water Rights, 20 Land and Water Law
Review 421, 426 fn. 20 (1985), discussing United States v.
Gila Valley Irrigation Dist., No. 59 Globe Eq., decree at 86
(D. Ariz. June 29, 1935) (decree of water with "immemorial
date of priority" to Gila River Tribes, whose members have
been irrigators before European contact; decree of water with
reservation priority to Apaches, who had not previously
irrigated.)
More than one priority date may apply to water rights
reserved by the same tribe. The Klamath Indian Tribe's
Treaty of 1864 recognized tribal agriculture, hunting,
fishing and gathering. The Ninth Circuit Court of Appeals
held that irrigation was a "new use" and had a priority date
of 1864. The latter purposes were based on tribal uses that
existed before creation of the reservation. Water reserved
for hunting and fishing purposes had a priority date of "time
immemorial." Adair, 723 F.2d at 1412-15.
The Montana Water Use Act does not define priority date.
Section 85-2-224(3)(d), MCA, directs the reserved right
claimant to include "the priority date claimed" in its
statement of claim to the Water Court. The Act permits the
Water Court to apply federal law in d.etermining a proper
priority date for each Indian reserved water right.
Winters rights are difficult to quantify. Because the
purposes of each reservation differ, federal courts have
devised several general quantification standards. These
standards differ depending upon the purpose for which the
water was reserved.
For agricultural purposes, the reserved right is a right
to sufficient water to "irrigate all the practicably
irrigable acreage on the reservation." Arizona -
v.
California, 373 U.S. at 600. Arizona - California
v. involved
agricultural Indian reservations with Winters rights for
irrigation purposes. The Court noted that present and future
needs should be quantified with reference to the practicably
irrigable acreage on each reservation. Individual Indian
allottees have a right to use a portion of water reserved for
agricultural purposes. ,
United States v. Powers (1.939) 305
U.S. 527, 531. An Indian allottee may use water for present
and future irrigation needs based on "the number of irrigable
acres he owns." Colville Confederated Tribes v. Wal-ton (9th
Cir. 1981), 647 F.2d 42, 51. "[Tlhe full measure of this
right need not be exercised immediately." Adair, 723 F.2d at
1416.
The right to water reserved to preserve tribal hunting
a.nd fishing rights is unusual in that it is non-consumptive.
A reserved right for hunting and fishing purposes "consists
of the right to prevent other appropriators from depleting
the stream waters below a protected level in any area where
the non-consumptive right applies." Adair, 723 F.2d at 1411.
The Supreme Court held that, under the
implied-reservation-of-water-rights doctrine, Indians are
entitled to sufficient water "to develop, preserve, produce
or sustain food and other resources of the reservation, to
make i.t livable." Arizona - California, 373 U.S. at 599-600
v.
[decree entered, 376 U.S. 340, (1964)l. I [I]
' ndian treaty
rights to a na.tura1 resource that once was thoroughly and
exclusively exploited by the Indians secures so much as, but
no more than, is necessary to provide the Indians with a
livelihood -- that is to say, a moderate living." Washington
- Fishing Vessel Ass'n, 443 U.S. at 686.
v.
The Winters Court held that reserved water on the Fort
Belknap Reservation could be beneficially used for "acts of
civilization" as well as for agricultura.1 purposes. Winters,
207 U.S. at 576. It may be that such "acts of civilization"
will include consumptive uses for industrial purposes. We
have not found decisive federal cases on the extent of Indian
water rights for uses classed as "acts of ci~rilization."
It is clear, however, that Indian reserved water rights
may include future uses. Arizona - California, 373 U.S. at
v.
600-01; United States v. Ahtanum Irrigation District (9th
Cir. 1964), 330 F.2d 897, 914. Most reservations have used
only a fraction of their reserved water. National Water
Commission, Water Policies - - Future
for the 51-61 .
(1.973)
However, reserved rights may reflect future need as well as
present use. For example, the "practically irrigable
acreage" standard applies to future irrigation of reservation
land, not present irrigation practices and current
consumptive uses.
The Water Use Act, as amended, recognizes that a
reserved right may exist without a present use. Section
85-2-224 ( 3 ) , MCA, permits a "statement of claim for rights
reserved under the laws of the United States which have not
yet been put to use." The Act permits Indian reserved rights
to be decreed without a current use. Section 85-2-234 (6),
MCA, requires the final decree of tribal water rights to
state, among other things:
(e) the purpose for which the water included. in the
right is currently used, - - -
if at all;
( £ 1 the place of use and a description of the land,
if any, to which the right is appurtenant;
-
(g) the place and means of diversion, - -
if any ...
(~mphasissupplied. )
Section 85-2-402, MCA, includes extensive provisions
which are to be applied in the event of a proposed change in
use or in appropriation right. In a comparable way,
S 85-2-404, MCA, sets forth a standard under which an
appropriator may abandon a wa.ter right. It may be argued
that these sta.tutes might allow an improper limitation on
Indian reserved rights result in abandonment for nonuse. We
presume that the Water Court will not apply these code
sections in an improper manner to the claimants of Indian
reserved water rights. Federal Indian law must be applied in
these areas as well.
Several tribes have claimed that the involvement of the
Department of Natural Resources with the Water Court prior to
issuance of preliminary decrees may violate the requirements
of due process. Section 85-2-243, MCA, authorizes the
Department to assist the Water Court, ir~cludincjcollecting
information and conducting field investigations of
questionable claims. While we recognize that the Act places
no limits on the manner in which the Water Court utilizes the
information furnished by the Department, we will not presume
any improper application of the Act on the part of the Water
Court. Actual violations of procedural due process and other
issues regarding the Act as applied are reviewable on appeal
after a factual record is established.
In a similar manner, it may be contended that S
85-2-316, MCA, which limits the reservation of future uses to
certain river basins, sets forth an improper limitation on
Indian reserved rights. We also presume that the Water Court
will not apply these statutes without regard to controlling
federa.1 law on Indian wa.ter rights.
We recognize tha.t the Water Use Act of Montana does not
explicitly state that the Water Court shall apply federal law
in adjudicating Indian reserved rights. However, we conclude
that is not fatal to the adequacy of the Act on its face. We
hold that state courts are required to follow federal law
with regard. to those water rights.
We recognize the fear on the part of various parties
that the subjection of Indian water rights to state court
jurisdiction will of necessity hurt the Indian people. We
quote again from San Carlos Apache:
Mere subjection of Indian rights to legal
challenge in state court .
. would no.
more imperil those rights than would a
suit brought by the Government in
district court for their declaration . .
.. The Government has not abdicated any
responsibility fully to defend Indian
rights in state court, and Indian
interests may be satisfactorily protected
under regimes of state law. The
Amendment in no way abridges any
substantive claim on behalf of Indians
under the doctrine of reserved rights.
Moreover, as Eagle County said,
"questions [arising from the collision of
private rights and reserved rights of the
United States], including the volume and
scope of particular reserved rights, are
federal questions which, if preserved,
can be reviewed [by the Supreme Court]
after final judgment by the Colorado
court." 401 U.S., at 526.
463 U.S. at 551, quoting Colorado River, 424 U.S. at 812-13.
The United States Supreme Court reserves the right to
review state court adjudications of Indian reserved water
rights. As emphasized in - Carlos Apache:
San
[Olur decision in no way changes the
substantive law by which Indians rights
in state water adjudications must be
judged. State courts, as much as federal
courts, have a solemn obligation to
follow federal law. Moreover, any
state-court decision alleged to abridge
Indian water rights protected by federal
law can expect to receive, if brought for
review before this Court, a
particularized and exacting scrutiny
commensurate with the powerful federal
interest in safeguarding those rights
from state encroachment.
463 U.S. at 571.
We conclude that the Montana Water Use Act on its face
is adequate to adjudicate Indian reserved water rights.
Should the Water Court abridge Indian reserved water rights
by improperly applying the Act and the federal law that
protects those rights, that failure can be appealed to this
Court as well as to the Supreme Court of the United States
for "a particularized and exacting scrutiny."
I11
Is the Water Use Act of Montana adequate to adjudicate
federal reserved water rights?
In order to construe the adequacy of the Act with
reference to federal reserved rights, we must consider how
federal-ly-created reserved rights differ from state-created
appropriative rights. We also consider the distinctions
between federal reserved rights and Indian reserved rights.
Federal reserved rights differ from state appropriative
rights in origin, determination of priority date, and
quantification standards. As noted above, appropriative
water rights are state-created and in general originate from
actual use of the water. Generally speaking, their priority
date is the date the water was first put to use for a
beneficial purpose. They are quantified on the basis of
present use. They are governed by state law.
"Federal water rights are not dependent upon state law
or state procedures . . . " Cappaert, 426 U.S. at 145.
Federal reserved rights are created by federal statute,
executive order or agreement. Their priority date is the
date that the federal lands were withdrawn from the public
domain for federal purpose. Quantification is not based upon
actual use, but upon "minimal need" to fulfill the purposes
of the reservation of federal lands. Cappaert, 426 U.S. at
141.
Federal reserved water rights differ from Indian
reserved water rights in origin, ownership, determination of
priority date, the manner in which the purpose of the
reservation is determined, and qua.ntification standards.
The first distinction is origin. Although federal water
rights can be reserved by implication, like Indian reserved
rights under Winters, they are not based upon treaties.
Federal water rights are based upon statute, executive order
or agreement.
A non-Indian federal reserved water right is ...
created when Congress or the President through an
order or agreement reserves or dedicates public
lands to a use or program requiring the use of
water in order to carry out the purpose for which
tHe reservation is made.
W. Coldiron, Non-Indian Federal Reserved Water Rights,
Montana Lawyer 5 (Jan. 1985) . Federal reserved- water rights
are created by the document that reserves the land from the
public domain. By contrast, aboriginal-Indian reserved water
rights exist from time immemorial and are merely recognized
by the document that reserves the Indian land. Federal
reserved water rights, on the other hand, are created by and
cannot predate the document that reserved the federal land
from the public domain.
Form of ownership is another distinction between federal
and Indian reserved water rights. The United States is not
the owner of Indian reserved rights. It is a trustee for the
benefit of the Indians. Its powers regarding Indian water
rights are constrained by its fiduciary duty to the tribes
and allotees, who are the beneficiaries of the land that the
United States holds in trust. Indian reserved water rights
are "owned" by the Indians.
The United States owns federal reserved water riqhts.
Although a public trust argument might be made with reference
to national parks and wilderness areas, the United States can
lease, sell, quitclaim, release, encumber or convey its own
federal reserved water rights.
Determination of the priority date of a reserved right
is not based upon actual use by Indians or the United States.
The priority date of federal reserved water rights is always
the date on which the federal land was reserved from the
public domain. Unlike Indian reserved rights, there is no
need to look to the purpose and nature of the federal
reservation in order to determine the priority date of a
right reserved by the federal government because there is no
such thing as a.borigina1 use by the government.
The quantification standard for federal reserved water
rights is a "minimal need" standard. "The implied-reserva-
tion-of-water doctrine ... reserves only that amount of
wa.ter necessary to ful.fill the primary purpose of the
reservation, no more." Cappaert, 426 U.S. at 141-42; United
States v. New Mexico (1978), 438 U.S. 696, 700. Unlike
Indian reserved rights, which include water for future needs
and changes in use, federal reserved rights are quantified on
the basis of the original, primary purposes of the
reservation. Water for secondary purposes is not factored
into the quantification. See Cappaert, 426 U.S. at 141-42.
The Colorado Supreme Court summarized the test of
federal reserved rights as follows:
For each federal claim of a reserved water right,
the trier of fact must examine the documents
reserving the land from the public domain and the
underlying legislation authorizing the reservation;
determine the precise federal purposes to be served
by such legislation; determine whether water is
essential for the primary purposes of the
reservation; and fina1l.y determine the precise
quantity of water - the minimal need as set forth
in Cappaert and New Mexico -- required for such
purposes.
United States ~ 7 . City and County of Denver (Colo. 1983), 656
P.2d 1, 20. There are no special canons of construction for
interpreting the documents that create federal reserved water
rights. The purposes for which the federal government
reserves land are strictly construed. See Cappaert, 426 U.S.
at 141-42 (preservation of Devil's Hole Monument to the
extent necessary to preserve its scientific value, hut not
necessarily its scenic features); United States -
v. -
New
Mexico, 438 U.S. at 705 (original national forest purpose not
extended to aesthetic, recreational and fish-preservation
purposes) . The purposes of Indian reserved rights, on the
other hand., are given broader interpretation in order to
further the federal goal of Indian self-sufficiency. United
States v. Finch (9th Cir. 1976), 548 F.2d 822, 832, reversed
on other grounds 433 U.S. 676 (1977); pyramid ~ a k e~ a i u t e
Tribe of Indians v. Morton (D.D.C. 1973), 354 F. Supp. 252(water reserved in quantities sufficient to sustain implicit
purpose of fishing as well as explicit purpose of
agriculture).
Under current federal 1a.w, federal reserved water
rights, like Indian reserved water rights, are immune from
abandonment for nonuse. The Monta.na Water Use Act recognizes
the distinction between federal reserved rights and
state-created appropriative rights. Sections 85-2-234 ( 6 ) ,
MCA, lists the information that shall be included in a final
decree for a "federal agency possessing water rights arising
under the laws of the United States." Three of the eight
requirements are conditional: the purpose for which the
water is currently used, if at all; the place of use and a
description of the land, if any, to which the right is
appurtenant; and the place and means of diversion, if any.
Subsections (el, (£1 & (g) of 85-2-234(6), MCA. No
conditional language is used in the list of required
information for final decrees of state-created appropriative
rights. See § 85-2-234(5) MCA.
Section 85-2-404(2), MCA, pertains to abandonment and
provides :
If an appropriator ceases to use all or part of his
appropriation right or ceases using his
appropriation right according to its terms and
conditions for a period of 10 successive years and
there was water available for his use, there shall
be a prima facie presumption that the appropriator
has abandoned his right in whole or for the part
not used.
As noted above, federal law controls federal water rights.
Current federal law d-oes not permit abandonment of reserved
rights for nonuse. As noted in Part 11, "[sltate courts, as
much as federal courts, have a solemn obligation to follow
federal law." San Carlos Apache, 463 U.S. at 571. The Water
Court like any other court must follow federal law when
federal law conflicts with state law. Unless and until
federal law is changed, a Montana decree of abandonment of a
federal reserved water right would be improper. We conclude
that, to the extent necessary to fulfill the purposes of the
reservation, federal reserved water rights cannot be decreed
to be abandoned by reason of nonuse. We note that the
Co1orad.o Supreme Court has rea-ched an identical conclusion
with reference to federal reserved rights in that state. See
United States v. City and County of Denver (Colo. 1983), 656
P.2d 1, 34-35.
The McCarran Amendment altered federal procedural law by
permitting state courts to adjudicate federal reserved water
rights. Neither the McCarran Amendment nor any subsequent
federal case interpreting that statute has modified
substantive federal law. Congress ' grant of concurrent
jurisdiction to the states to adjudicate federal water rights
in no way diminished the nature of those substantive rights.
Based upon our analysis of the distinctions between
federal reserved water rights, Indian reserved water rights,
and state appropriative use rights and the manner in which
the Water Use Act permits each different class of water
rights to be treated differently, we hold that the Act is
adequate on its face to allow the Water Court to adjudicate
federal reserved rights. Because federal law controls
federal reserved rights and challenges to the manner in which
the Water Court adjudicates these rights turns upon the facts
of each adjudication, we reserve ruling on whether the Act is
adequate as applied.
The Water Court is directed to proceed in accordance
with this opinion, with the adjudication of water rights,
including Indian and federal reserved
Mr. Justice Fra.nk B. Morrison
for a later time. .
reserves his opinion