The 1.3 million acre Flathead Indian Reservation is home to the Confederated Salish and Kootenai Tribes, which include the Salish, Pend d’Oreille, and Kootenai. Established by the Treaty of Hellgate in July 1855, the Reservation is located mostly in Lake County, but also in Sanders, Missoula, and Flathead counties and contains part of Flathead Lake, the largest single natural body of fresh water in the American West. In 1908, the U.S. Supreme Court held that a tribe’s express reservation of its land impliedly reserved water to satisfy the purposes of the treaty.
In 1904, Congress, with the Flathead Allotment Act, required allotment of Reservation lands to tribal members and provided that the unallotted lands could be free for settlement and entry under the homestead laws. In 1905, Montana passed a law to make “it easier for the United States to proceed with its valuable work of reclamation and improvement of land.” In 1908, Congress created the Flathead Irrigation Project for all landowners and provided for repayment of construction and operation/maintenance costs. In 1909, President Taft opened the Reservation to settlement by non-Indians.
In 1926, Congress compelled creation of irrigation districts under Montana law, leading to three districts: the Flathead, the Jocko Valley, and the Mission. In 1985, Montana’s Supreme Court held the state’s water law was facially adequate to adjudicate federal and Indian reserved water rights.
On February 27, 2014, the Confederated Salish and Kootenai Tribes sued Robert and Judy Harms of Hot Springs and Wayne and Betty Stickel of Lonepine in northwestern Montana, within the Flathead Indian Reservation. In their lawsuit, the Tribes claim all water and land within the boundaries of the Reservation and thus challenge the validity of the original homesteaders’ patents—signed by the President—and seek to acquire those lands and their water rights. In addition, the Tribes challenge a federal law assigning primary responsibility for adjudicating and administrating water rights to State and not federal courts—the McCarran Amendment of 1952.
On July 3, 2014, the Harms and Stickels filed a motion to dismiss the case in its entirety. Other defendants in the matter also filed motions to dismiss. After the motions to dismiss were briefed, the federal defendants filed a motion to stay the proceedings on October 30, 2014. On November 13, 2014, the Harms and Stickels filed a response objecting to the motion to stay to which the federal defendants replied on December 4, 2014. On January 12, 2015, the Montana federal district court issued an order mandating that the parties file status reports addressing the effect of the Montana Legislature’s approval of the Flathead Indian Reservation Water Rights Compact, assuming it occurs, on the case. On January 26, 2015, the Harms and Stickels filed their status report. On May 18, 2015, the Montana federal district court granted the motion filed by the Harms and Stickels and dismissed the lawsuit.