IN THE SUPREMECOURT 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 SALISHAND KOOTENAI TRIBES OF THE FLATHEAD RESERVATION, THE CROW TRIBE OF INDIANSOF THE CROW RESERVATION, THE NORTHERN CHEYENNE TRIBE OF THENORTHERN CHEYENNE RESERVATION, and THENORTHERN CHEYENNE RESERVATION, and THEUNITED STATES OF AMERICA,


### . ,.-- %. Individuallyand as Trustee for the Blackfeet IndianNation of the Blackfeet Reservation, the Chippewa-Cree Tribes of the ~ocky BOY'SReservation, the Confeder# ' 

# FILED
ated Salish and Kootenai Tribes of the Flathead Reservation, The CrowTribe of

,, 

### JAN2

## 31986 the Crow Reservation, the GrosVentre, Sioux andAssiniboine Tribes of the Fort 

# ?flJ,ln i.t*:4*n CLERKOF SCIPXEf8: .r\T Belknap and Fort Peck Reservations, the ~TATE OF R~LIL rni.A Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, and the Turtle Mountain Chippewa Tribe,aNorth Dakota Tribe with allotments to land in the State ofMontana, Respondents.

ORDER 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: San Carlos Apache, 463 U.S. at 564. 

# - The Court 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 San Carlos Apache, as 

## - follows: San Carlos Apache, 463 U.S. at 564. The 

# - Courtdid not, however,rule upon whether the Amendment has removed state limitations, such as Montana' s constitutional disclaimer. (2) Page 13,line 6 aeads: people." inArt. I,Mont. Const. 1972. The period following "people" shall be deleted so that this line reads: people" inArt. 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 shallbe 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 aprotected 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 aprotected level. (9) Page 17, second full paragraph, last citation is to R. Collins, IndianAllotment Water Rights, 20 Land a.ndqater Law Review 421, 426 fn. 20 (1985). The explanatory information in the parenthesis reads: (decreeofwater with "immemorialdate ofpriority" to Gila River Tribes, whose members have been irrigators before European contact;decree ofwater with reservation priority to Apaches, who had not previously irrigated.) This parenthetical note shallbe amended to read:

, b (decreeofwater with "immemorial date ofpriority" to Gila River Tribes, whose members had been irrigators before European contact;decree ofwater with reservation priority to Apaches, who had not previously irrigated).(10) Page 19, line 9 reads: The Supreme Court held that, under .the This line shallbe amended toread: The Supreme Court has alsoheld thatunder the (11) Page 20, second full paragraph, third sentence reads: Itmay be argued thatthese statutesmight allowan improper limitation on Indian reserved rights result inabandonment fornonuse. An "or" shall be inserted after "rights" so that this sentence reads: Itmay be argued thatthese statutesmight allowan improper limitation on Indian reserved rights or resultinabandonment fornonuse. (12) Page 23, lastparagraph, second sentence reads: Although federal water rights can be reserved by implication, like Indian reserved rights under Winters, they arenotbased upon treaties. The firstcomma shallbe deleted tothatthis sentence reads: Although federal water rights can be reserved by implication like Indian reserved rights under Winters, they arenotbased upon tre,aties. 

## M DATED thisz13~ 

# -day of January, 1986.

Justices rNo. 84-333 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

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 UNITED STATES OF AMERICA, Individually and as Trustee forthe Blackfeet IndianNation of theBlackfeet Reservation, theChippewa-Cree Tribes of the Rocky Boy's Reservation, the Confederated Salish and Kootenai Tribes of the Flathead Reservation, The CrowTribe of the Crow Reservation, theGros Ventre, Sioux and Assiniboine Tribes of theFort Belknap and Fort Peck Reservations, the Northern Cheyenne Tribe of theNorthern Cheyenne Indian Reservation, and theTurtle Mountain Chippewa Tribe, a North Dakota Tribewith allotmentsto land inthe State of Montana, Respondents.

ORIGINAL PROCEEDING: COUNSEL OF RECORD: For Petitioners: Hon. Mike Greely

## ,Attorney General, Helena., M.ontana Clay R. Smith argued, Asst. Atty. General, Helena Hon. W. W. Lessley argued, Chief Water Judge, Bozeman, Montana ;SarahArnott argued, Water Master, Bozeman For Respondents: Goetz, Madden & Dunn; James H. Goetz argued for Confederated Salishand Kootenai Tribes, Bozeman, Montana : also, Daniel F. Decker argued, Pablo, Montana Byron H. Dunbar, US Attorney, Billings, Montana WilliamP. Horn, Under Secretary US Dept. of the Interior, Washington, DC Patrick Barry, Division of Indian Lands and Natural Resources, US Dept. of Justice, Washington, DC Allen E. Rowland, President, Northern Cheyenne Tribal Council, Lame Deer, Montana Norman Hollow, Chairman, Fort Peck Tribal Executive Board, Poplar, Montana (continued, nextpage)(Respondents,continued)

Filed: 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 BlakeA. Watson argued,Land & Natural ResourcesDiv., Washington,DC Reid Peyton Chambers; Sonosky,Chambers & Sachse, Washington,DC FrancisX. Lamebull, Harlem,Montana FranklinR. Perez,President, Fort Belknap Comm. Council-,Harlem,Montana JohnWindy Boy, Chairman,Chippewa Cree Tribe,Box Elder, Montana Richard LaFromboise,Chairman,TurtleMountain Chippewa.Tribe,Belcourt,North Dakota JosephFelsman, Chairman,Confederated Sa.lish& Kootenai Tribes,Pabl-o,Montana Earl Old Person,Chairman, BlackfeetTribe, Browning, Montana Joseph J. McKay,Browning,Montana CalvinWilson, Busby,Montana PhilipE. Ray,Browning,Montana ForAmicus Curiae: Jeanne S. Whiteing argued forNative 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 1111985 Decided: December 18, 1985



### DEC

## 1

## 81985

ClerkMr. 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. OnAugust 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) IsMontana'sWater 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 (9thCir. 1983), 721F.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 Indianand federal reservedwater rights. Following argumentbefore this Court en banc,we assumed original jurisdiction to exercise supervisory control over the Water Court and to determine three questions of firstimpression regardingwater 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 inMontana were designated as respondents. State

## - ex rel. Greely, 691P.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 'ofNorth Dakota

never respond.edto theseproceedings. On its ownmotion, the Court dismissed the TurtleMountain Chippewa Tribe as a.named respondent. The Confederated Salish and Kootenai, the Crow and the Northern Cheyenne Tribes later filed motions to be reinstated asparties to thisproceeding. Their motionswere granted pursuant to San Carlos Apache, 463 U.S. at 566 fn. 17. These fourMontana Indian tribes remain as individually named respondents. The United States of America, appears individually and as trustee for all the tribes with land in

, i > ,<,. Montana. State

# ex rel. Greely, 691. P.2d at 840, 41 St.Rep. at 2382. The issues for determinationare: 1. Is the Water Court ofMontana prohibited from exercising jurisdiction over Indian reserved water rights based

onArticle Iof the 1972Montana 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 reservedwater rights? We hold that Art. I, Mont. Const. 1972 does not bar state jurisdiction to adjudicate Indianreservedwater 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 rightsbased 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 February 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 controlof the congressof theUnited 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.idproposed states do agree and declare that they forever disclaim all right and title to 

# ...all lands 

# . . . owned or held by any Indianor 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." OrdinanceNo. 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. Coloradowas 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." 

## - San Carolos Apache, 463U.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 IndianWater Means 

### - To the West 58-61 (1982). 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 systemor other source,or (2) for the administrationof such rights,where it appears that theUnited 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),424U.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 constructionof the Amendment excluding those rights from itscoveragewould enerva.tetheAmendment's objective." Colorado River, 424U.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 inMontana "shall remain under the absolute juri.sdiction and control of the congress of the United States 

# ... until revoked by the consent of the United Statesand the people ofMontana." 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. VIIMontana 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 otherbeneficialuse, 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 apublic 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 asprovided 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 thepresent systemof local records. On June 6, 1972, the people of Montana ratified the constitution, as submitted to them by the ConstitutionalConvention. The new constitution became effectiveon 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 ofMontana 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 disclaimerwas intended tohave the same scope as the federal EnablingAct. He argues thatArt. 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. TheWater Court encourages this Court tobend to federal Indian policy and to avoid piecemeal adjudication of water rights by allowing the state court to adjudicate Indian reserved rights inMontana. The tribes argue that the disclaimer cannot be repealed by implication and that express language must be employed to change a constitutionalprovision. They assert that the most that the McCarran Amendmentmay 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 theWater 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 disclaimersof 1889 and 1972 recognize the federal government's exclusive jurisdiction over Indian lands within the state. The United States Supreme Courthas stated that:

[Wlhateverlimitation the Enabling Acts or federal policy may have originally placed on state-court jurisdiction over Indian water rights, those limitations were removed by theMcCarranAmendment. San Carlos Apache, 463 U.S. at 564. The Court did not, however, rule upon whether the Amendment had removed state limitations, such as Montana's constitutionaldisclaimer. [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, 463 U.S. at 561. Art. I,Mont. Const. 1972provides 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

'thepeople' as a shorthand reference to the citizens of theentire State of Montana." Anaconda-Deer Lodge County v. Lorello (1979), 181 Mont. 195, 197, 592 ~.2d 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 IndianReservation 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. Congresshad 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 280provides inpertinent part: The consentof theUnited States ishereby given to any 

# ... State not having jurisdiction with respectto criminal offenses

## * * *, asprovided 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 FlatheadReservation by enactmentof a tribal ordinance. See McDonald, 159Mont. 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 disclaimeras follows: Ordinance I, Sec. 2 of the Montana Constitution simply provides that all Indian lands "shallremain under the absolute jurisdiction and control of thecongress of the United States." This requirement was imposedby the United States upon thepeople 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 constitutional amendment isnecessary 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. Statev. Paul,53Wash.2d 789, 337 P.2d 33 (1959); Makah Indian Tribev. 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 andMakah isnonethelesspersuasive. 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 jurisdictionby state courts over Indianscommitting 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 izo bearing on the presence or absence of state jurisdiction over Indian water rights. In fact,Public Law 280 specifically withheldfrom 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." inArt. 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 reservedwater rights. We hold thatArt. I,Mont. Const. 1972does not prohibit the Water Court of Montana from exercising jurisdiction over Indian reservedwater rights.I1 Is the Montana Water Use Act adequate to adjudicate Indianreservedwater rights? State appropriative water rights and Indian reserved water rights differ in origin and definition. See State ex

7 rel. Greely, 691 P.2d at 841-42, 41 St.Rep. 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 tobetter 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 ismade of the water. See S 85-2-404, MCA. Generally, an appropriator of astate-created rightmust divert, impound orwithdrawwater to appropriate. See SS 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 agreementwhich 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.tthe amount ofwater reserved must be sufficient to allow the Indians to become a "pastoraland civilizedpeople." The Indians had command of the lands and the waters-command of all their beneficialuse,whether kept for hunting, "and grazing roving herds of stock," or turned to agriculture and the arts of civilization. Winters, 207U.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.tionand statutory construction are governed by federal Indian law. The federal courtshave developed canons of construction in Indian law that recognize the federal trust responsibility to Indians. Although originallyapplied to interpretationof treaties, these judicial canons of construction have also been applied in the a.reaof statutory construction. NorthernCheyenne Tribe v. Hollotp~breast (1976),425 U.S. 649, 655 fn. 7; Squirev. 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 (9thCir. 1982), 665F.2d 951, 962,cert. denied 459 U.S. 977 (1982). Treatiesmust be interpreted as the Indians themselves would have understood them. Fishing Vessel Ass'n, 443 U.S. at 676; ChoctawNation 

### 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), 104F.2d 334, 337. Foremost among these federal Indian law principles is that "the treaty isnot a grant of rights to the Indians, but

a grant of rights from them 

## -- a reservation of those not granted." United States v. Adair (9thCir. 1983), 723 F.2d 1394, 1412-13, cert. denied 104 U.S. 3536 (19841, quoting IJnited States

### v. Winans (1905),198U.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 implicitlydiminish aboriginalholdings. Uninterrupted use and occupation of land can create "aboriginal title." See United States v. Kla.math Indians (1938), 304U.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 statutethat 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 reservedwater rights differently from state appropriative rights. See SS 85-2-224(3), 85-2-231(1)(c)

## , 85-2-234(4) & (6) and 85-2-701 through -705, NCA. TheAct recognizesand confirms "existingrights to the

use of any waters for any useful or beneficial purpose." Section 85-2-101(4), MCA. "Existingright1'means a right to the use ofwater 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 newuse ofwater. If the use forwhich the waterwas 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 tobe a

new use with an 1865 priority date). A different rule applies to tribal uses that existed before creation of the reservation. Where the existenceof apreexisting tribaluse 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 andWater Law Review 421, 426 fn. 20 (1985), discussing United States v. Gila Valley IrrigationDist., 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 ofwater 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'sTreaty of 1864 recognized tribal agriculture, hunting, fishing and gathering. The Ninth Circuit Court of Appeals held that irrigationwas a "newuse" and had a priority date of 1864. The latter purposes were based on tribaluses that existed before creation of the reservation. Water reserved forhunting and fishing purposes had apriority date of "time immemorial." Adair, 723 F.2d at 1412-15. TheMontana Water Use Act does not definepriority 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.etermininga proper priority date for each Indianreservedwater 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 waterwas 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 

### - v. California involved agricultural Indian reservations with Winters rights for irrigationpurposes. The Court noted thatpresent and future needs should be quantified with reference to the practicably irrigable acreage on each reservation. Individual Indian allotteeshave a right to use aportion ofwater reserved for agriculturalpurposes. United States v. Powers (1.939) 

## , 305 U.S. 527, 531. An Indian allottee may use water forpresent and future irrigationneedsbased on "the number of irrigable

acres he owns." Colville Confederated Tribesv. Wal-ton (9th Cir. 1981), 647 F.2d 42, 51. "[Tlhe full measure of thisrightneed notbe exercised immediately." Adair, 723 F.2d at 1416.The right to water reserved to preserve tribal hunting a.ndfishing 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.tlivable." Arizona 

### - v. California,373U.S. at 599-600 [decree entered, 376 U.S. 340, (1964)l. I'[I] ndian treaty rights to a na.tura1resource that once was thoroughly and exclusively exploited by the Indians secures somuch as,but

no more than, is necessary to provide the Indians with a livelihood

## -- that is to say,amoderate living." Washington

v. Fishing VesselAss'n, 443U.S. at 686. 

### - The Winters Court held that reserved water on the Fort Belknap Reservation could be beneficially used for "acts of civilization"aswell as foragricultura.1purposes. Winters, 207 U.S. at 576. Itmay 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 reservedwater rights may include future uses. Arizona 

### - v. California, 373 U.S. at 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 for the Future 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 consumptiveuses. 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 Stateswhich have not yetbeen put touse." TheAct 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)thepurpose for which the water included.in the right is currently used,

### --- ifat all; (£1 the place ofuse and a description of the land, if

### any, towhich the right isappurtenant; 

### - (g) theplace andmeans ofdiversion,

### -- if any

# .. . (~mphasis supplied.) 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.tutesmight 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 reservedwater rights. Federal Indian law must be applied in these areas aswell. Several tribes have claimed that the involvementof the Department of Natural Resourceswith the Water Court prior to issuance of preliminary decreesmay violate the requirementsof 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 inwhich theWater 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 ofproceduraldue 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 reservationof futureuses 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.1law on Indianwa.terrights. We recognize tha.tthe Water Use Act ofMontana does not explicitly state that theWater Court shall apply federal law in adjudicating Indianreserved rights. However,we conclude that is not fatalto the adequacy of the Act on its face. We hold that state courts are required to follow federal law with regard.to thosewater 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 CarlosApache: Mere subjectionof 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 Governmenthas not abdicated any responsibility fully to defend Indian rights in state court, and Indian interestsmay be satisfactorily protected under regimes of state law. The Amendment in no way abridges anysubstantive 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." 401U.S., at 526. 463 U.S. at 551,quoting Colorado River, 424U.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

## - San CarlosApache: [Olur decision in no way changes the substantive law by which Indians rights in state water adjudications must be judged. State courts, asmuch 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. 463U.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 reservedwater rights? In order to construe the adequacy of the Act with reference to federal reserved rights, we must consider howfederal-ly-createdreserved 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. "Federalwater 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 federalpurpose. Quantification isnot 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 firstdistinction 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 ofwater in order to carry out the purpose for which tHe reservation ismade. 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 reservedwater 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 createdby and cannot predate the document that reserved the federal land from thepublic domain. Form ofownership is another distinction between federal and Indian reserved water rights. The United States is not the owner of Indianreserved 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 apublic trust argument might be made with reference to nationalparks andwilderness areas, the United States can lease, sell, quitclaim, release, encumber or convey its own federalreservedwater rights. Determination of the priority date of a reserved right is not based upon actual use by Indiansor the United States. The priority date of federal reservedwater 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 aright reserved by the federal government because there is no such thing as a.borigina1useby the government. The quantification standard for federal reserved water rights is a "minimal need" standard. "The implied-reservation-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 includewater for future needs and changes inuse, federalreserved 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 federalreserved 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 legislationauthorizing the reservation; determine theprecise 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 reservedwater 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, 438U.S. at 705 (original national forestpurpose not extended to aesthetic, recreational and fish-preservation purposes)

# . The purposes 

### of Indian reserved rights, on theother hand., are given broader interpretation in order to further the federal goal of Indian self-sufficiency. United States v. Finch (9thCir. 1976), 548 F.2d 822, 832,reversed on other grounds 433 U.S. 676 (1977); pyramid ~ake ~aiute 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. TheMonta.naWater Use Act recognizes the distinction between federal reserved rights and state-created appropriative rights. Sections 85-2-234(6), MCA, lists the information that shallbe 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 orpart of his appropriation right or ceases using his appropriation right according to its terms and conditions for a period of 10 successiveyears 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-oesnot 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, 463U.S. at 571. TheWater 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 rightwould 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-chedan identical conclusion with referenceto federalreserved rights in that state. See United States v. City and County of Denver (Colo. 1983), 656 P.2d 1,34-35. TheMcCarran Amendment altered federal procedural lawby permitting state courts to adjudicate federal reservedwater 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 federalwater rights in no way diminished the nature of those substantive rights. Based upon our analysis of the distinctions between federal reserved water rights, Indian reservedwater 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 federalreserved rights and challenges to the manner inwhich the Water Court adjudicates these rights turnsupon the factsof each adjudication, we reserve ruling onwhether 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.nkB. Morrison reserves his opinion for a later time. 

# .