© 2020 Concerned Citizens of Western Montana
Missoula Independent May 2012 – Pat Pierre, the elder, says that during the past 150 years, the tribes have gradually acquired new weapons for self-defense; today, for example, they have a cadre of attorneys and hydrologists negotiating on their behalf. They’ll use them to ensure that coming generations of Salish, Kootenai and Pend d’ Oreille can draw sustenance from the waterways as they always have, he says. “We use your weapons of war to fight back now.”
As a followup to yesterday’s post The OTHER Off-Reservation Water Rights, we are reminded about the tribe’s 2014 litigation, “affectionately” referred to as the CSKT v. Everyone lawsuit.
After the failure to get the CSKT Compact passed in the 2013 legislative session, the CSKT upped the ante by filing a quiet title action to undermine the land patents on all privately owned lands within the historic boundaries of the reservation, and to seek a declaration by the courts of the tribes ownership of all of the water.
While the tribe’s goal was to “frighten” legislators and citizens into accepting their CSKT Compact crap sandwich, we believe either they made a tactical error by prematurely revealing their post compact plans, or the lawsuit itself was a legal strategy “fishing expedition.”
In February 2014, the CSKT filed a Complaint for declaratory and injunctive relief against
The United States Department of Interior Secretary Sarah “Sally’ Jewell; United States Bureau Of Indian Affairs; Jocko V Alley Irrigation District; Mission Irrigation District; Flathead Irrigation District; District Court For The Twentieth Judicial District Of Montana; Montana Water Court; Michael G. Mclatchy, Blanche Crepeau, and Alex Crepeau; Judy Harms And Robert Harms; Betty A. Stickel And Wayne D. Stickel; and An Unknown Number Of John Doe Defendants Claiming FIIP Irrigation Water as a Personal Water Right,
In March of 2014, Jon Metropoulos, attorney for the Irrigation Districts wrote a letter to Attorney General Tim Fox, asking the state to get involved in the lawsuit, saying:
……..Additionally, in the Complaint the CSKT assert claims that, if successful, could undermine all individual (member and nonmember) claims to water rights on the Reservation, as well as to the State of Montana’s sovereign ownership of all the waters in the State. See Mont. Const. Art. IX, Sec. 3(3). Additionally, taken to its logical end, they could also undermine the fee title of every person who owns real property on the Reservation by way of a patent from the United States. Moreover, it will render the State of Montana’s sovereignty on the Reservation a dead letter, at least as to the fundamental rights of equal and full access to the Courts, as my clients and many others will have been prevented from accessing the courts of this state to protect their property and rights, simply because the CSKT managed to persuade the federal courts that their preference for federal adjudication of their claims ought to prevail over my clients’ rights, not very subtly insulting the competence and impartiality of both the Water Court and the 20thJudicial District Court.
We must never lose sight of the fact that while an Indian water settlement is the vehicle being used to destabilize property rights and the economy of western Montana, the ultimate goal is to restore the tribe’s aboriginal territory and then some, back to the United States / tribes.
Mountain States Legal Foundation took on the case for two of the defendants in the lawsuit.
Because our recent article mentioned this issue of preclusion with respect to the tribe’s on and off reservation ceded lands in the Indian Claims Commission and Court of Claims lawsuits, we wanted to share with you their brief in support of the motion made to dismiss the tribe’s lawsuit. It gets to the heart of this issue.
In their brief, Mountain States made this argument in reference to the Court of Claims Docket 50233 mentioned in yesterday’s post:
RES JUDICATA BARS PLAINTIFFS FROM CLOUDING TITLE TO LANDS PATENTED TO LANDOWNERS’ PREDECESSORS.
Res judicata is the collective moniker for claim preclusion and issue preclusion (also known as collateral estoppel). Issue preclusion bars “‘successive litigation of an issue of fact or law actually litigated or resolved in a valid court determination essential to a prior judgment,’ even if the issue recurs in the context of a different claim.” Issue preclusion bars an issue from being relitigated if four requirements are met:
- there was a full and fair opportunity to litigate the issue in the previous action;
- the issue was actually litigated in that action;
- the issue was lost as a result of a final judgment in that action; and
- To the extent Plaintiffs ask this Court to declare the priority dates of their water rights,
…. The final judgment in Confederated Salish awarded Plaintiffs $6,066,668.78 in just compensation for the taking of lands by the United States, including all surplus lands patented to settlers. 473 F.2d at 485. Payment of just compensation occurred when Congress appropriated funds in satisfaction of the final judgment in Confederated Salish to the credit of Plaintiffs. 25 U.S.C. § 1251. Thus, Plaintiffs have been compensated for any taking that occurred as a direct result of the final judgment in Confederated Salish.
The payment of just compensation extinguished any remaining title Plaintiffs had to the lands patented to settlers. As the Supreme Court has repeatedly recognized, “‘The exclusive right of the United States to extinguish’ Indian title has never been doubted. And whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise, its justness is not open to inquiry in the courts.” United States v. Santa Fe Pac. R. Co., 314 U.S. 339, 347 (1941) (quoting Johnson v. M’Intosh, 21 U.S. 543, 586 (1823)).
By bringing a takings claim, Plaintiffs acknowledged that the United States had the power to take their lands through eminent domain. Confederated Salish, 437 F.2d at 468. Therefore, if title was not extinguished when the lands were patented to settlers, there is no question that any cloud on settlers’ title was extinguished when Congress appropriated money to pay just compensation to Plaintiffs. By accepting just compensation, Plaintiffs lost any remaining title to Landowners’ lands
A copy of the full brief can be found here: Harms Brief in Support of Motion to Dismiss
This lawsuit is a glimpse into the future of a post CSKT Compact world.. It was dismissed in 2015, but there is little doubt it could be dusted off before the ink is dry on the signing of the Daines S.3019 water compact legislation.
A copy of the amended complaint can be found here: CSKT First Amended Complaint