The Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation v. Thomas Ralph Adsit

668 F.2d 1080 The NORTHERN CHEYENNE TRIBE OF the NORTHERN CHEYENNE INDIAN RESERVATION, et al., Plaintiffs-Appellants, v. Thomas Ralph ADSIT, et al., Defendants-Appellees. Nos. 79-4887, 80-3028, 80-3032, 80-3038, 80-3040 to 80-3042, 80-3044, 80-3045 and 80-3061 to 80-3063. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 15, 1981. Decided Feb. 22, 1982. Thomas Pacheco, Dept. of Justice, Washington, D. C., for U. S. Jeanne S. Whiteing, John E. Echohawk, Boulder, Colo., Calvin Wilson, Busby, Mont., for Cheyenne Tribe. R. Anthony Rogers, John Michael Facciola, Glenn P. Sugameli, Wilkinson, Cragun & Barker, Washington, D. C., Thomas J. Lynaugh, Lynaugh, Fitzgerald, Schoppert & Skaggs, Billings, Mont., for Crow Tribe and The Confederated Salish & Kootenai Tribes. Reid Peyton Chambers, Sonosky, Chambers & Sachse, Washington, D. C., for Assiniboine and Sioux Tribes, intervenors. Steven L. Bunch, Montana Legal Services Ass'n, Helena, Mont., for Bowen. Helena S. Maclay, Deirdre Boggs, Bruce McEvoy, Missoula, Mont., Bert W. Kronmiller, James E. Seykora, Douglas Y. Freeman, Hardin, Mont., for State of Mont. Cale Crowley, Crowley, Haughey, Hanson,…

The United States government and various Montana Indian tribes appeal the dismissal of consolidated actions brought to adjudicate federal and Indian water rights in Montana. The federal court actions were dismissed in favor of state court proceedings. Dismissal was predicated on the Supreme Court’s decision in Colorado River Conservation District v. United States, 424 U.S. 800 , 96 S.Ct. 1236 , 47 L.Ed.2d 483 (1976) (hereinafter “Akin”). Because Akin was erroneously applied to the facts of the Montana litigation, we reverse.

1. PROCEDURAL HISTORY.

In January, 1975, the Northern Cheyenne Tribe brought suit in United States District Court for the District of Montana to adjudicate water rights in the Tongue River and Rosebud Creek in Montana. Jurisdiction was alleged under 28 U.S.C. § 1362 . 1 In March, 1975, the United States brought suit pursuant to 28 U.S.C. § 1345 2 for the same purpose, in its own right and as fiduciary on *1083 behalf of the Northern Cheyenne and other reservation tribes. In July, 1975, the Montana Department of Natural Resources and Conservation (“DNR”) filed petitions in state court for a determination of all existing rights to those waters in accordance…

dissenting:

I dissent from the Court’s holding that the disclaimer clauses in the Montana Statehood Act and in the State Constitution deprive the state courts of jurisdiction to establish and adjudicate reserved water rights of the United States held by it in trust for the Indians. On this issue I agree with Jicarilla Apache Tribe v. United States, 601 F.2d 1116 (10th Cir.), cert. denied, 444 U.S. 995 , 100 S.Ct. 530 , 62 L.Ed.2d 426 (1979).

The disclaimer clauses disclaim all right and title to Indian lands. But no one here lays any claim to Indian lands or water rights. The Statehood Act disclaimer provides that Indian lands “shall be and remain subject to the disposition of the United States, and * * * shall remain under the *1091 absolute jurisdiction and control of the Congress of the United States.” 25 Stat. 676 (1889). But no one here disputes that Congress has always had jurisdiction and control over land owned by the United States and held by it in trust for Indians and that such lands always remained subject to disposition by Congress. Indeed, in enacting the McCarran Amendment, 43 U.S.C. § 666 , Congress exercised its plenary control over Indian lands to authorize the…