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Western Foundation Defends Non-Indians Sued By Montana Tribes

May 21, 2014 | by William Perry Pendley

DENVER, CO.  A western nonprofit, public-interest legal foundation with decades of experience dealing with issues involving American Indians and western water rights, today announced that it will defend two families sued by Montana Indian Tribes.  Mountain States Legal Foundation (MSLF) represents Robert and Judy Harms of Hot Springs and Wayne and Betty Stickel of Lonepine in northwestern Montana, within the Flathead Indian Reservation, who were sued by the Confederated Salish and Kootenai Tribes in Montana federal district court on February 27, 2014.  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.

“Our clients’ land was open for entry for 105 years, and in private hands for much of that time,” said William Perry Pendley, president of MSLF.  “The water rights appurtenant to those lands were owned fully by our clients and their predecessors for decades.  We will vigorously defend those rights.”

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.

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

For more information:  Confederated Salish and Kootenai Tribes v. U.S. Department Of The Interior