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 

ated 

~ocky 

Salish 

BOY'S 

and Kootenai Tribes 

Reservation, the 

of 

Confederthe ' FILED 

Flathead Reservation, The Crow Tribe of , , 

JAN 2 3 1986 

the Crow Reservation, the Gros Ventre, 

Sioux and Assiniboine Tribes of the Fort 

?fl J,ln i.t*:4 *n 

CLERK OF SCIPXEf8: .r\T 

Belknap and Fort Peck Reservations, the ~TATE OF R~LIL r 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. 

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 

Court did not, however, 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 19, line 9 reads: 

The Supreme Court held that, under .the 

This line shall be amended to read: 

The Supreme Court has also held that under the 

(11) Page 20, second full paragraph, third sentence reads: 

It may be argued that these statutes might allow an 

improper limitation on Indian reserved rights 

result in abandonment for nonuse. 

An "or" shall be inserted after "rights" so that this 

sentence reads: 

It may be argued that these statutes might allow an 

improper limitation on Indian reserved rights or 

result in abandonment for nonuse. 

(12) Page 23, last paragraph, second sentence reads: 

Although federal water rights can be reserved by 

implication, like Indian reserved rights under 

Winters, they are not based upon treaties. 

The first comma shall be deleted to that this sentence reads: 

Although federal water rights can be reserved by 

implication like Indian reserved rights under 

Winters, they are not based upon tre,aties. 

M 

DATED thisz13~ - day of January, 1986. 

Justices r 
No. 84-333 

IN THE 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 for the 

Blackfeet Indian Nation of the Blackfeet 

Reservation, the Chippewa-Cree Tribes of 

the Rocky Boy's Reservation, the Confederated Salish and Kootenai Tribes of the 

Flathead Reservation, The Crow Tribe of 

the Crow Reservation, the Gros Ventre, 

Sioux and Assiniboine Tribes of the Fort 

Belknap and Fort Peck Reservations, the 

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. 

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 ; Sarah Arnott argued, Water Master, Bozeman 

For Respondents: 

Goetz, Madden & Dunn; James H. Goetz argued for 

Confederated Salish and Kootenai Tribes, Bozeman, 

Montana : also, Daniel F. Decker argued, Pablo, 

Montana 

Byron H. Dunbar, US Attorney, Billings, Montana 

William P. 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, next page) 
(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 

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 

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 fn. 

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 

, i > ,<,. 

Montana. State ex 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 exercising 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 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 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." - San Carolos 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 

-- 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 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, 463 U.S. at 564. 

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, 463 U.S. at 561. 

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 ~.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 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 constitutional 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 izo bearing on 

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 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 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 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 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 SS 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 - v. California 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 - v. California, 373 U.S. at 599-600 

[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 

- v. Fishing Vessel Ass'n, 443 U.S. at 686. 

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 - 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 

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 . . . 

(~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.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~cludincj collecting 

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 - San Carlos Apache: 

[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-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 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 ~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. 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 reserves his opinion 

for a later time. .