MONTANA WATER COURT'S DEPRIVATION

Montana Water Court’s astounding deprivation of due process | 

by Lawrence A. Kogan Esq.

The United States (“USG”) lacks standing under Article III of the U.S. Constitution to affirmatively represent the Confederated Salish and Kootenai Tribes interests at the Montana Water Court’s still current CSKT Tribal Water Right adjudication proceedings (Case No. WC-0001-C-2021). The United States, along with the State of Montana and the Tribes, had initially petitioned the Water Court to commence such proceedings on March 15, 2022. The USG lacks such standing because there is no special common law fiduciary (i.e., private trust) Federal-Indian trust relationship evidenced in the Hellgate Treaty of 1855 explicitly requiring the USG to take affirmative steps to secure, quantify, prioritize and protect the Tribal Water Right recognized in the CSKT Water Compact. And since the USG lacks such standing, the Montana Water Court lacks the requisite subject matter jurisdiction to continue its CSKT Tribal Water Right adjudication proceedings. However, the Montana Water Court, on Thursday, during the first of the two-day oral hearings it is now convening following its Order of Oct. 18, refused to let non-lawyer Objectors to the CSKT Water Compact who had previously filed requests for Oral Argument on Oct. 4, raise these critically important issues on the judicial record, even though they arise from three recent U.S. Supreme Court landmark decisions. These Objectors had initially filed their Request for a Hearing along with the Statement of Objections to the CSKT Water Compact it filed on February 9, 2023 (attached), based on the U.S. Supreme Court’s June 29, 2022, decision in Oklahoma v. Castro Huerta (Dkt. No. 21-429), and the U.S. Supreme Court’s likely rulings in two then pending cases – Haaland v. Brackeen (Dkt Nos. 21-380, 21-376, 21-377, 21-378) and Arizona v. Navajo Nation (Dkt. Nos. 21-1484, 22-51). The U.S. Supreme Court, thereafter, issued its decisions in Brackeen and Navajo Nation, respectively, on June 15, 2023, and June 22, 2023. Together, these three landmark Supreme Court decisions substantially changed federal Indian law, resulting in the USG’s current lack of Article III standing to maintain their petition before the Water Court on behalf of the CSKT in these Tribal Water adjudication proceedings. In Castro Huerta, the Supreme Court majority rejected the Court’s prior view, expressed in its 1832 opinion in Worcester v. Georgia, that the United States owes a special common law fiduciary trust obligation of protection to Indian tribes and their members, because Indians are dependent wards of the Nation and are a separate and distinct political community requiring protection from States and their nontribal citizens. Since the CSKT are neither dependent wards of the Nation nor a separate and distinct political community requiring special protection from the State of Montana and its citizens, the USG does not owe to the CSKT a special common law fiduciary trust obligation of protection. In Castro Huerta, the Supreme Court majority also held that “Indian country” (18 U.S.C. § 1151), including Indian reservations, are not separate from States, but rather, are part of the States in which they are located. Since the Flathead Reservation lands and the waters that flow through it and along its exterior boundaries which the CSKT Water Compact refers to as Tribal “reserved” water rights are now considered part of the State of Montana, they are now subject to concurrent state and federal jurisdiction. This means that the CSKT’s right to occupy Flathead Reservation lands and the CSKT’s rights to the use of such waters are each considered a stick in the bundle of state- and federal-recognized property rights that makes up the Flathead Reservation, and ultimately subject to the U.S. Constitution. Significantly, this also means that CSKT tribal members are both Montana state and U.S. federal citizens entitled to all the rights, privileges and immunities to which other American and state citizens are entitled, including due process of law and equal protection under the law. In Brackeen, the Supreme Court majority held that Congress’s plenary powers over Indian affairs, no matter whether they derive from the U.S. Constitution’s Commerce Clause (Art. I, § 8, cl. 3), Treaty Clause (Art. II, § 2, cl. 2), Property/Territory Clause (Art. IV, § 3, cl. 2), or the Federal-Indian trust relationship, are nevertheless subject to foundational constitutional constraints — a conclusion which even dissenting Justice Alito agreed with! This means that the CSKT Water Compact (SB262, 2015) that Congress and former President Donald Trump enacted into federal law as Division DD (“Montana Water Protection Act”) of the Consolidated Appropriations Act of 2021 (P.L. 116-260, Dec. 27, 2020) (134 Stat. 3008), is subject to foundational constitutional limitations. Therefore, to the extent the federalized CSKT Water Compact converts private irrigator state-appropriated water use rights into federal “reserved” water rights without providing Objectors with an adequate opportunity to be heard (due process of law) and equal protection under the law, it is manifestly unconstitutional. In Navajo Nation, the Supreme Court majority rejected the claims of the Navajo Nation that the express language of the U.S.-Navajo Nation treaty imposed upon the USG a special common law fiduciary trust obligation to affirmatively take steps to make a “reserved” water rights claim and to secure water on behalf of the tribe from the Colorado River. The Court had apparently relied, in part, on the USG brief filed in that action which argued that the USG owed no enforceable trust obligation to the Navajo Nation to make a “reserved” water rights claim and to secure water for the tribe from the Colorado River. According to the Court, there is only a general trust relationship between the USG and Indian tribes. It is my observation that the Navajo Nation treaty language the Supreme Court considered in Navajo Nation relating to the tribe’s land and water rights is substantially similar to the Hellgate Treaty language concerning the CSKT’s land and water rights. Consequently, the express language of the Hellgate Treaty, like the express language of the Navajo Nation treaty, does not impose a special common law fiduciary trust obligation on the USG to take the affirmative steps recognized in the CSKT Water Compact to secure, quantify, prioritize and protect the CSKT’s claimed Tribal Water Right against claims made by Montana or its nontribal citizens. In sum, based on the U.S. Supreme Court’s landmark decisions in Castro Huerta, Brackeen and Navajo Nation, the USG is compelled to establish that it now possesses the requisite Article III standing to maintain its previously filed petition with the Water Court, on behalf of the CSKT, seeking the adjudication of the Tribal Water Right. Because the USG will be unable to establish that it possesses such standing, the Water Court has no choice but to dismiss these CSKT Tribal Water Right adjudication proceedings at once. That the Water Court went out of its way to unlawfully deny only the non-lawyer Objectors to the CSKT Water Compact the opportunity to raise these critically important threshold issues at Thursday’s oral hearing is truly astounding, if not profoundly offensive to the notion of due process of law. It also is especially disappointing, since a party had recently raised the very same threshold issue before the New Mexico federal district court on Oct. 4, during its adjudication of the Jemez River in the case of United States v. Abousleman, No. 6:83-cv-01041, and the district court responded on Nov. 12 with an order providing all interested parties with the opportunity to file responsive briefs. 

Lawrence A. Kogan, Esq, is managing principal of the New York City-based Kogan Law

From: https://missoulian.com/opinion/column/montana-water-court-s-astounding-deprivation-of-due-process-lawrence-a-kogan/article_ea2ec4f6-a30a-11ef-bf75-f719863ac2b4.html#tncms-source=login   11/17/2024