It took 35 years for the Blackfeet Nation to control its own water
Terri Hansen • May 10, 2017
In what the Blackfeet Nation is calling their most important development in a century, a majority of tribal members approved the Blackfeet Water Compact and Blackfeet Water Rights Settlement Act with Montana and the federal government, by a vote of 1,894 to 631.
Harry Barnes, Chairman of the Blackfeet Tribal Business Council, called it a “historic day for the Blackfeet people,” and well worth the time that Blackfeet staff and leaders had put into the effort the past four decades.
“My faith in the wisdom of the people’s vote has come to reality,” he said in a statement.
The history of the struggle between the tribes in Montana, and the State of Montana, over water rights began in the 1970s, when the federal government filed court water rights cases on behalf of all Montana tribes.
Montana filed competing water rights cases in state court. The U.S. and the tribes challenged Montana’s assertion that it had jurisdiction over Indian water rights on the reservation. What ensued was a history of court battles, meetings and negotiations that eventually led to the compact agreed to by Montana and the federal government. The last step was an April 20 vote by the Blackfeet membership.
The compact confirms the Tribe’s water quantity and rights, the Tribe’s jurisdiction and its authority to manage those rights on the reservation. Montana’s legislature ratified it in 2009, Congress approved the bill, and it was signed by President Barack Obama in January 2017.
The compact provides $422 million in federal funding for water-related projects on the reservation. Montana contributed an additional $49 million. The money will become available to the Tribe over a number of years.
“The funding will pay for such projects as installing municipal water systems to all communities on the reservation,” Jerry Lunak, the Blackfeet Water Resources Director told Indian Country Media Network. “We expect upgrades to existing irrigation systems on the reservation, and cost sharing for tribal members and others to upgrade irrigation on tribal and allotted lands.”
The main community on the Blackfeet Reservation is Browning, Montana. It happens to be the eastern entrance to Glacier National Park, with its incredible landscapes, alpine meadows, crystal-clear lakes and the glaciated mountain range—plus hordes of visitors. The park had about three million visitors last year, and although Browning hosts just one of four entrances, this presents opportunity for the Blackfeet Nation.
In a bid to attract those tourists to Blackfeet country, another project is slated to further develop and upgrade several campgrounds on the reservation. The settlement will also provide funding to upgrade their recreational lakes and improve their fisheries.
These projects mean jobs and benefits for tribal members on the rural reservation.
“The benefits of the water compact will be seen for generations to come,” Barnes said.
A long and sad opinion here, but a few things of note:
-as usual, Jay Treaty arguments are brushed aside.
-the State’s assumption that a claim of tribal membership is vague doesn’t mean ICWA might apply. And families might involve many tribes, from geographically diverse areas.
-there is or was a dedicated ICWA court or docket in Los Angeles County.
-the foster parents were not interested in helping with reunification in the slightest.
The case is captioned In re Estate of Big Spring (Mont. S. Ct.). Here is the brief: Blackfeet Amicus Brief.
An excerpt from the brief:
This case comes before this Court on the appeal of the Appellants from the decision of the Ninth Judicial District of Glacier County which ruled against a Motion to Dismiss by the Appellants based on the lack of subject matter jurisdiction over the estate of William Big Spring, II, an enrolled member of the Blackfeet Tribe, who, at the time of his death was a resident of the Blackfeet Reservation and whose estate consisted of both trust and fee land solely within the exterior boundaries of the Blackfeet Reservation. The District Court stated that there was concurrent jurisdiction over this property and that the District Court was therefore the proper forum for the probate of this Indian-owned fee land.
Appellants argue that the State District Court is without jurisdiction over the probates of resident enrolled members of the Blackfeet Tribe. Appellants further state that the probate of the trust land of such persons is vested in the Administrative Courts of the United States and that the probate of the fee land is vested, exclusively in the Blackfeet Tribal Court. That is also the view of the Blackfeet Tribe as seen in this Amicus Brief.
The Eighth Circuit’s decision that Matthew Stymiest is an “Indian” under 18 U.S.C. 1153(a) raises possible constitutional questions about due process and vagueness of a criminal statute, and it may be ripe for review by the Supreme Court as a circuit split.
Federal courts have adopted common law “tests” to determine whether a person charged under the statute is an Indian — they have to be in order to be convicted. The Eighth Circuit’s test lists a series of factors for a jury to consider in determining whether the defendant is an Indian.
Stymiest is a descendant of Leech Lake Band members, but he does not have the blood quantum to be eligible for membership himself. He often held himself out to be an Indian when it was to his advantage, such as when he was seeking Indian health clinic services, or in earlier criminal debacles where he probably thought it was to his advantage. But the local IHS people often asked him to produce some ID, which of course he never could. So is he an Indian? Hmmm.
And the wild thing about all of this is that under the statute, a jury of non-Indians (likely) will decide on these facts whether or not defendants like Stymiest are Indians beyond a reasonable doubt. As a matter of law, it is improbable that a jury can make a finding of “Indianness” under such a standard.
The Stymiest case likely conflicts in large part with the Ninth Circuit’s recent decision in United States v. Cruz. There, the court held that Christopher Cruz was not an Indian, despite being nearly quarter blood, although ineligible for tribal membership with the Blackfeet Nation. He worked for the BIA, spent several years of his childhood on the reservation, is eligible for some IHS and treaty hunting and fishing benefits, and was even once prosecuted in tribal court for a minor violation. In other words, Cruz is spectacularly similar to Stymiest.
Cruz isn’t an Indian under the Major Crimes Act, but Stymiest is. There’s a problem here.
Judge William Joseph Moran, Chief Justice of the Confederated Salish and Kootenai Appellate Court and Chief Judge of the Tribal Court, died at his home Wednesday. He was 65 years old.