I seek advice regarding the Supreme Court's decision in Montana v.
United States (1981) which appears to contradict the "canons of treaty
construction" noted below: (a.) that treaty ambiguities must be resolved in
favor of the Indians, (b.) that treaties must be interpreted as the Indians
would have understood them, and (c.) 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.
Background:
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.
Montana became a state in ????.
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 Indians...it 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."
Further, "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. Unites
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:
1. Why was not the fact that the treaty was established prior to
the equal footing doctrine "legally" relevant in this case?
2. 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.
3. 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?
4. 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.
Nvwhtohiyada...Jordan