Daniel J. Decker John T. Harrison …...Daniel J. Decker John T. Harrison Shane Morigeau CSKT Legal Department P.O. Box 278 Pablo, MT 59855 Ph: (406) 675-2700 ext. 1160 Fax: (406)

Daniel J. Decker John T. Harrison Shane Morigeau CSKT Legal Department P.O. Box 278 Pablo, MT 59855 Ph: (406) 675-2700 ext. 1160 Fax: (406) 675-4665 [email protected] [email protected] [email protected] James H. Goetz GOETZ, BALDWIN & GEDDES, P.C. 35 North Grand P.O. Box 6580 Bozeman, MT 59771-6580 Ph: (406) 587-0618 Fax: (406) 587-5144 email: [email protected] Attorneys for Confederated Salish and Kootenai Tribes

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA, MISSOULA DIVISION

CONFEDERATED SALISH AND KOOTENAI TRIBES,

Plaintiff,

v.

LAKE COUNTY BOARD OF COMMISSIONERS and LORI LUNDEEN,

Defendants.

Cause No. CV 19-90-M-DLC

CONFEDERATED SALISH AND KOOTENAI TRIBES’ BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Case 9:19-cv-00090-DLC Document 73 Filed 11/06/19 Page 1 of 39

mailto:[email protected]




i

TABLE OF CONTENTS

Page No. TABLE OF AUTHORITIES ................................................................................ iii INDEX OF EXHIBITS ....................................................................................... viii INTRODUCTION ................................................................................................ 1

A. The 1855 Treaty and the 1904 Flathead Allotment Act ....................... 1

B. The Establishment of Big Arm ............................................................ 2

C. Interior’s Withdrawal of the Southernmost Eighty Acres in the 1930s and the Balance in 1956 ....................................................................... 3

D. Existing Access to Fee and Leased Sites ............................................. 5 E. The Lundeen RV Proposal .................................................................. 6

ARGUMENT ......................................................................................................... 6

I. SUMMARY JUDGMENT IS APPROPRIATE—THE MATERIAL FACTS ARE UNDISPUTED ................................................................. 6

II. THERE IS NO AUTHORITY IN THE FAA FOR DIVESTING TITLE

TO STREETS, NOR IS THERE ANY PATENT DOING SO .............. 7 A. There is no patent to Lake County ...................................................... 7

B. There is no Congressionally-delegated authority for dedication of

streets to the County ........................................................................... 8

III. THE 1906 STATUTE DEMONSTRATES CONGRESS KNEW HOW TO DELEGATE AUTHORITY TO DEDICATE STREETS—IT DID SO FOR CERTAIN WISCONSIN TRIBES, IT DID NOT FOR THE FLATHEAD ........................................................................................ 10


ii

IV. LAKE COUNTY’S ATTEMPT TO APPLY MONTANA’S

DEDICATION LAW FAILS. FEDERAL LAW GOVERNS DISPOSITION OF INDIAN LANDS ................................................... 12

A. The laws of the United States alone control the disposition of title to its lands. ............................................................................................ 12

B. The 1872 Montana dedication law applied only to public lands town sites. Montana had no authority to extend its law to Indian Reservations. .................................................................................... 15

1. The public land laws town site acts ............................................. 15

2. The public land laws did not apply to the Flathead Reservation

because the Indian Reservation lands are not public land ............ 18

3. The procedures established by Section 17 of the FAA are different from those under the public land town site acts ........................... 19

V. COMMON LAW DEDICATION DOES NOT APPLY TO INDIAN LANDS ................................................................................................. 21

VI. THERE WAS NO COMPLIANCE WITH FEDERAL OR STATE

EASEMENT LAW ............................................................................... 22 CONCLUSION .................................................................................................... 27


iii

TABLE OF AUTHORITIES

Page No.

CASES: Albrecht v. United States 831 F.2d 196 (10th Cir. 1987) ...................................................................... 22 Anderson v. Bartels 7 Colo. 265, 3 Pac. Rep. 225 ........................................................................ 19 Anderson v. Liberty Lobby Inc. 477 U.S. 242 (1986) ...................................................................................... 6 Ash Sheep Co. v. U.S. 252 U.S. 159 (1920) .................................................................................... 18 Ashby v. Hall 119 U.S. 526 (1886) .................................................................................... 19 Boudette v. Barnette 923 F.2d 754 (9th Cir. 1991) ....................................................................... 11 Brooke v. Jordan 14 Mont. 375, 36 P. 450 (1894) ................................................................... 17 Crow Tribe of Indians v. Peters 835 F.Supp.2d 985 (D. Mont. 2011) ...................................................... 14,18 Crow Tribe of Indians v. United States 657 F.Supp. 573 (D. Mont. 1985) .................................................................. 4 Davis v. Wiebbold 139 U.S. 507 (1891) .................................................................................... 17 Dick v. United States 208 U.S. 340 (1908) .................................................................................... 18


iv

Deffenback v. Hawke 115 U.S. 392 (1885) .................................................................................... 17 Edwards v. Tracy 2 Mont. 49 (1874) ....................................................................................... 17 Gibson v. Chouteau 80 U.S. 92 (1871) ..................................................................................... 7,20 Imperial Granite Co. v. Pala Band of Mission Indians 940 F.2d 1269 (9th Cir. 1991) ........................................................................ 9 Lone Wolf v. Hitchcock 187 U.S. 553 (1903) ....................................................................................... 1 McFarland v. Kempthorne 545 F.3d 1106 (9th Cir. 2008) ............................................................... 5,9,13 Ming v. Foote 9 Mont. 201, 23 P. 515 (1890) ................................................................. 16,19 Montana Mine Lands Holdings v. U.S. Department of Agriculture No. CV-17-65-M-CCL, 2018 WL 1640866 (D. Mont. Apr. 5, 2018) ........... 22 Montana Power Co. v. Rochester 127 F.2d 189 (9th Cir. 1942) ....................................................................... 15 Nebraska v. Parker _ U.S. _, 136 S.Ct. 1072 (2016) .................................................................. 12 Oneida Indian Nation v. County of Oneida 414 U.S. 661 (1974) .................................................................................... 14 Peasley v. Trosper 103 Mont. 401, 64 P.2d 109 (1936) ........................................................ 25,26


v

Pedersen v. Dawson County 2000 MT 339, 303 Mont. 158, 17 P.3d ........................................................ 26 State ex rel. Hicklin v. Webster 28 Mont. 104, 72 P. 295 (1903)................................................................ 17,21 Solem v. Bartlett 465 U.S. 463 (1984) ................................................................................... 8,9 Superior Oil Co. v. U.S. 353 F.2d 34 (9th Cir. 1965) ......................................................................... 22 United States v. 10.69 Acres of Land, More or Less, in Yakima County 425 F.2d 317 (9th Cir. 1970) ....................................................................... 23 United States v. Celestine 215 U.S. 278 (1909) .................................................................................... 18 United States v. Mountain State Telephone and Telegraph Company 434 F.Supp. 625 (D. Mont. 434 1977) ......................................................... 26 U.S. v. Gates of the Mountains Lakeshore Homes, Inc. 732 F.2d 1411 (9th Cir. 1984) ...................................................................... 13 United States v. Oklahoma Gas & Electric Co. 127 F.2d 349 (10th Cir. 1941) ................................................................ 23,24 United States v. Oklahoma Gas & Electric Co. 318 U.S. 206 (1943) .................................................................................... 24 United States v. Oregon 295 U.S. 1 (1935) ........................................................................................ 13 United States v. Webb 219 F.3d 1127 (9th Cir. 2000) ....................................................................... 9 Utah Power & Light Co. v. United States 243 U.S. 389 (1917) ............................................................................... 13,20


vi

Wilcox v. Jackson 38 U.S. 498 (1839) ........................................................................................ 7 Wilson v. Omaha Indian Tribe 442 U.S. 653 (1979) ............................................................................... 14,18 FEDERAL LEGISLATION: Act of March 2, 1867, 14 Stat. 541, ch. 177 .................................................. 15-18,20 Act of March 3, 1901, 31 Stat. 1058, ch. 832 ................................................ 23,25,26 Act of March 4, 1915, Pub. L. No. 63-310, 38 Stat. 1188, ch. 161 ............................ 25 Act of May 23, 1844, 5 Stat. 657, ch. 17 ................................................................. 15 Act of June 21, 1906, 34 Stat. 325, ch. 3504 ................................................... 2,10,11 Act of July 1, 1864, 13 Stat. 343, ch. 205 ................................................................ 15 Dawes Act (General Allotment Act, 24 Stat. 388, ch. 119) ..................................... 1 Flathead Allotment Act, Pub.L.No. 58-159, 33 Stat. 302 (1904) ............ 1,2,8,9,17,20 Indian Reorganization Act of 1934...................................................................... 4,23 Montana Enabling Act, Act of February 22, 1889, 25. Stat. 676 ........................ 14,15 MONTANA CODE: 1872 Mont. Laws 547, 548 §§ 3,4 .......................................................................... 16 1895 Montana Political Code 457, 459 § 5105 ........................................................ 17 1907 Revised Codes of Montana 1031, 1034 § 3519 ............................................... 17


vii

UNITED STATES CODE: 25 U.S.C. § 311 ..................................................................................................... 23 25 U.S.C. §§ 323-328 ............................................................................................ 23 25 U.S.C. § 1777 (Nonintercourse Act) ................................................................... 9 25 U.S.C. § 5101 et seq. ............................................................................................ 4 TREATIES: Hell Gate Treaty of 1855, 12 Stat. 975 ................................................................. 1,17 OTHER AUTHORITY: 21 Federal Register 6625 (September 5, 1956) ........................................................ 5 2A Sutherland Statutory Construction, § 47.23 (5th ed.) ..................................... 11 3 Tiffany Real Prop. § 949 (3d ed.) ......................................................................... 7 Simpson v. Rocky Mountain Regional Director 37 I.B.I.A. 182 (3/27/2002) ........................................................................ 25


viii

INDEX OF EXHIBITS

Exhibit No. Description 1 [Reserved for Lake County’s copy of Lee-Kenney Report—copy

not included] 2 Plat of the Townsite of Big Arm, Montana, Situated in Section 33,

Township 24 North [T24N], Range 21 West [R21W], approved September 4, 1913 (CSKT0000336)

3 Act of June 21, 1906, 34 Stat. 325 at 354 (“Flathead Allotment Act Amendment”) (CSKT 0000068–128)

4 Revised Statutes of the United States (Washington, DC: GPO, 1875), Section 2381 (CSKT0000022–26)

5 Photos of Big Arm Townsite from NARA-Denver, April 28, 1911 (CSKT0001859, CSKT0001860)

6 Letter from Flathead Agency Superintendent Charles E. Coe to the Commissioner of Indian Affairs, November 12, 1929 (CSKT0000401)

7 Letter from General Land Office Commissioner C. C. Moore to the Secretary of Interior, December 8, 1930 (CSKT0000417–418)

8 1913 Big Arm plat showing the location of the 80 acres eliminated from the townsite in December 1930 (CSKT0001876)

9 Federal Register, vol. 21, 6681–82, September 5, 1956 (CSKT0000451–452)

10 1913 Big Arm Townsite plat showing lots restored to CSKT ownership by 1956 order (CSKT0001877)

11 Geo-referenced historic aerial photographs of Big Arm dated in 1946, 1953, 1958, and 1977 (CSKT0001878–1881)

12 Tables showing patents issued for individual lots in the Big Arm Townsite in 1914–1927 and 1941–1953

13 Map of Big Arm showing lots patented in 1914–1919, 1922, 1927, and 1941–1953 (CSKT0001882)

14 Act of March 2, 1867, 14 Stat. 541 (CSKT0000010–12). 15 Laws, Memorials, and Resolutions of the Territory of Montana,

Chapter LVII, 1872 (CSKT0000014–20) 16 Revised Codes of Montana of 1907, Chapters VI and VIII (CKST

0000164–190) 17 Map of “County Roads, S ½, T24N, R21W, PMM, Lake County,


ix

Montana” (CSKT0001664) 18 Act of March 3, 1901, Section 4, 31 Stat. 1058 at 1084

(CSKT0000027–55 at CSKT0000054) 19 Regulations of the Indian Office, Effective April 1, 1904

(CSKT0000056–58) 20 “Public Roads Over Indian Lands,” February 21, 1911

(CSKT0000220–221) 21 Act of March 4, 1915, 38 Stat. 1188 (CSKT0000370–372) 22 Correspondence dated 1909–1911 between Flathead County and

U.S. officials regarding the opening of public roads on the Flathead Indian Reservation (CSKT0000194, CSKT0000195, CSKT0000196, CSKT0000199, CSKT0000210, CSKT0000214–215, CSKT0000229–230)

23 Letter from Assistant Commissioner of Indian Affairs F. H. Abbott to Flathead Indian Superintendent Fred C. Morgan, August 9, 1911 (CSKT 0000236–238)

24 Letter from Billings Field Solicitor Roy F. Allan to Billings Area Director, January 9, 1957 (CSKT0000614)

25 Letter from Flathead Agency Superintendent Forrest R. Stone to State Highway Commission Land Agent A. C. Swaney, January 15, 1957 (CSKT0000616)

26 Letter from Billings Area Office Acting Area Director Ned O. Thompson to Richard A. Baenen, July 7, 1970 (CSKT0000617)

27 Letter from Flathead Agency Superintendent to Glen D. Park, March 11, 1986 (CSKT0000618–619)

28 Excerpt from Lee-Kenney Report filed in Court of Claims case no. 50233 (CSKT0000702–706)

29 Early 1870s patents issued to probate judges in Lewis and Clark, Missoula, and Gallatin Counties for public-land townsites (CSKT0000013, CSKT0000021, CSKT0001574)

30 Letter from Flathead Agency Superintendent Charles E. Coe to the Commissioner of Indian Affairs, August 24, 1931 (CSKT0000421)

31 Examples of patents issued for individual lots in the Big Arm Townsite, 1914–1953 (CSKT0001179, CSKT0001249, CSKT0001274)


CSKT’s Brief in Support of Motion for Summary Judgment 1

INTRODUCTION

A. The 1855 Treaty and the 1904 Flathead Allotment Act

“A ‘measurement’ of land means a robbery of the Indians” -Peter Ronan, quoting Tribal Leaders, 1892

By the Hell Gate Treaty of July 16, 1855, 12 Stat. 975, the Confederated

Salish and Kootenai Tribes (“CSKT” or “Tribes”) ceded to the United States a

vast area of aboriginal land located within the present borders of the States of

Montana and Idaho. Article II of the Treaty reserved some 1,245,000 acres in

northwestern Montana for the exclusive use of the Tribes.

In the late 1800s, pushed largely by covetous non-Indians, Congress enacted

the Dawes Act (General Allotment Act, 24 Stat. 388, ch. 119). That Act provided

for the allotment of Reservation lands to Tribal members and subsequent opening

of “surplus” lands to non-Indian homesteaders. The Tribes strenuously resisted

allotment and the Dawes Act was not applied to the Flathead Reservation.

SmithDecl.¶2.1.C-L.

Later, however, Congress breached its covenant in the Hell Gate Treaty by

passing the Flathead Allotment Act of 1904, Act of April 23, 1904, ch. 1495, 33

Stat. 302 (1904) (the “FAA”)—again, over the forceful objections of the Tribes.1

1 The FAA was passed shortly after the decision in Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), in which the Court declared that the “plenary power of the U.S.



It was again breached in 1906 when Congress added Section 17 to the Flathead

Allotment Act by ch. 3504, 34 Stat. 325, 354 (1906), authorizing the creation of

“townsites” within the Flathead Reservation. SmithDecl.¶2.2.A,Ex.3,pp.354-55.2

B. The Establishment of Big Arm

The Department of Interior caused a town site to be surveyed at the site of

Big Arm, a point on the western shore of the Flathead Lake, 9.5 miles northwest of

Polson, Montana. The plat was filed on September 4, 1913. Ex 2. Even before that,

non-Indian squatters, disregarding the treaty and without legal authorization,

developed property at Big Arm. SmithDecl.¶2.3.C.Ex.5(1911 photos of Big Arm

properties).

Section 17 of the Flathead Allotment Act authorized sale of individual lots

but did not authorize conveyance of streets, alleys, or parks. SmithDecl.¶2.2.A-B.

Over the years after the Big Arm plat was filed, some lots were conveyed in fee, but

most stood vacant. With respect to those lots sold, the President issued patents to

the purchasers. SmithDecl.¶2.3.I. The patents were silent on access to the lots.

Congress gave it authority to abrogate, unilaterally, its obligations under Indian Treaties.” 2 This brief is primarily supported by expert historian Ian Smith. See SmithDecl.,Doc.67. Unless otherwise indicated, referrals to exhibits (“Ex.”) are to the exhibits attached to the Smith Declaration.



Lake County now takes the position that the sheer filing of the plat

constituted a dedication of the streets and alleyways to the County. But the Tribes

demonstrate below that only Congress has the authority to divest Indian tribes

of title, and Congress has not done so in this case.

In the 1930s, Federal Highway 93 was developed on the north side of Big

Arm, close to Flathead Lake. Id.,¶3.3.I. The fee sites, most of which were sold prior

to Highway 93, are largely clustered around the north side of the site. There is a

smattering of Tribal lease sites in Big Arm, also largely on the north end. The bulk

of the Big Arm site remains largely open lands. There is one site to the south of the

schoolhouse where a lessee pioneered his own access road south of “E Street.”

DavisDecl.,¶8,Doc.70.

C. Interior’s Withdrawal of the Southernmost Eighty Acres in the 1930s and the Balance in 1956

In 1929, the Superintendent of the Flathead Agency discussed a

recommendation that “80 acres of the town site be abandoned and made available

for allotment”:

I might add that Big Arm is almost deserted. O.A. Knox has a general merchandise store, there is one small Indian Curio shop and a Dance Hall. The elevator and Hotel has been closed for several years and nearly all the residents have moved away and the homes are nearly all deserted. A fire last summer burned several of the houses.



SmithDecl.Ex.6.

In the early 1930s, the Department of Interior, due to lack of demand,

vacated eighty acres of the proposed town site so that the southern half was

released for Indian allotment. Id.,¶2.4.F,Ex.7.3 Those eighty acres remain

undeveloped, except for one site that is now leased by the Tribes to a Tribal

member. DavisDecl.,¶9,Doc.70.

The federal policies of allotment and opening of “surplus” lands to non-

Indian homesteaders were reversed in 1934. That year, Congress enacted the

Indian Reorganization Act (IRA), 25 U.S.C. § 5101 et seq. Under Section 3 of the

IRA, 25 U.S.C. § 5103(a) (previously § 463(a)), the Secretary of Interior was

authorized to restore to Tribal ownership “the remaining surplus lands of Indian

reservations opened before June 18, 1934…” Crow Tribe of Indians v. United States,

657 F.Supp. 573, 576 (D. Mont. 1985). SmithDecl.¶ 2.4.H.

Eventually, given the continuing lack of demand, the Secretary of the

Interior restored4 to Tribal ownership all undisposed lots within the town site in

3 By letter of August 24, 1931, the Flathead Superintendent notified the Commissioner of Indian Affairs that this south half “has been selected (for allotment) by a qualified Indian and an application for the same will be forwarded to the Office within the near future.” Ex.30. 4 “Restored” is not quite the correct term because unsold lots never left Tribal ownership.



1956. 21 Fed.Reg. 6625, 6681-82 (September 5, 1956). SmithDecl.¶2.4.N,Ex.9.

This restoration was authorized by §§ 3 and 7 of the IRA. Id.

D. Existing Access to Fee and Leased Sites

Over the years, patentees, and the previous squatters, carved out access to

their sites, some of which roughly followed the streets depicted on the plat, but

many of which did not. The Tribes do not challenge existing access to present sites

in Big Arm, but consider such access as a private license, much like the access of

early homesteaders. See McFarland v. Kempthorne, 545 F.3d 1106 (9th Cir. 2008):

McFarland contends that he is the holder of an easement implied from existing use, created at the time of the land patent under the Homestead Act…McFarland attempts to bolster this argument by pointing to the Homestead Act’s language recognizing a right “to enter” public lands to establish a homestead. However, Fitzgerald II [Fitzgerald Living Trust v. United States, 460 F.3d 1259 (9th Cir. 2006)] makes clear that this language does not create an implied easement….(“[T]he Homestead Act did not grant settlers a vested property right of access over public lands to their homesteads, but instead merely sanctioned the longstanding customary use of public lands by a settler.”).

**** Although the government has historically provided for access across federal land to reach privately owned inholdings, that access was granted in the form of a license. See Jenks, 129 F.3d at 1353-55.

Id., at 1112.



E. The Lundeen RV Proposal

Defendant Lundeen proposes to construct an RV park on her land that

borders the western edge of the Big Arm town site. She has received approval from

the relevant Lake County planning authorities to develop an access road over what

is demarked on the Big Arm town site plat as “E Street.” There is, however, no

developed street at the plat location of “E Street” (CarterDecl.Doc.29,¶8) and the

property remains in federal ownership in trust for the Tribes. Thus, if Ms. Lundeen

is to have access across that piece of property, she must request it from the Tribes.5

ARGUMENT

I. SUMMARY JUDGMENT IS APPROPRIATE—THE MATERIAL FACTS ARE UNDISPUTED.

The standard for summary judgment under F.R.Civ.P. 56 is well-known to

this Court. Further discussion is unnecessary. See Anderson v. Liberty Lobby Inc.,

477 U.S. 242 (1986).

5 Lundeen’s initial proposal specified two accesses, one through “H Street” and one through “F Street.” That was amended with the proposed single access through “E Street.” Lake County Subdivision Regulations, however, require two access/exit points. See Lake County Subdivision Regulations, Section X.I.7. Thus, while not an issue in this case, Lundeen’s proposal is not in compliance with Lake County regulations. Also, the County approval document is vague on sewage treatment, leaving the reader in the dark as to how the RV sewage is to be treated. See Doc.15-6 and Lundeen-produced documents LUNDEEN 00052-58.



In accordance with L.R. 56.1(a), the Tribes have submitted their statement

of undisputed facts. Doc.72.

II. THERE IS NO AUTHORITY IN THE FAA FOR DIVESTING TITLE TO STREETS, NOR IS THERE ANY PATENT DOING SO.

A. There is no patent to Lake County.

The seminal method for transfer of United States land title is through a

patent. “A patent is a document issued by the government to one to whom it has

transferred or agreed to transfer land, in order to vest in the transferee the

complete legal title, or to furnish evidence of the transfer.” 3 Tiffany Real Prop. §

949 (3d ed.). In Gibson v. Chouteau, 80 U.S. 92, 103 (1871), the Court stated:

For, as said in Bagnell v. Broderick, ‘Congress has the sole power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the Federal government in reference to the public lands declares the patent the superior and conclusive evidence of legal title. Until its issuance the fee is in the government, which, by the patent, passes to the grantee, and he is entitled to recover the possession in ejectment.’

See also Wilcox v. Jackson, 38 U.S. 498, 516-17 (1839) (“Congress has declared…a

patent is necessary to complete the title. But in this case, no patent has issued; and

therefore by the laws of the United States the legal title has not passed, but remains

in the United States.”).



The stark fact in this case is that there is no patent conveying title to the

streets, alleys, or public reserves of the Big Arm town site to Lake County.

B. There is no Congressionally-delegated authority for dedication of streets to the County.

Despite the fact that Lake County has no patent, it argues the sheer act of

filing the townsite plat amounts to a “dedication” which placed the roads under

County jurisdiction. Doc.39,¶6. However, only Congress can divest Indian tribes

of their property, and Congress did not do so here.

Section 17 of the FAA says nothing about streets and alleys, and does not

authorize a dedication of them. It simply authorizes the Secretary of Interior to

survey and plat potential townsites and, once such plat is filed, to sell individual

lots to qualified bidders.

The Court said in Solem v. Bartlett:

[O]nly Congress can divest a reservation of its land and diminish its boundaries. Once a block of land is set aside for an Indian Reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.

465 U.S. 463, 470 (1984); see also Nonintercourse Act, 25 U.S.C., § 1777 (declaring

void any claim or title to Indian land “unless the same be made by treaty or

convention entered into pursuant to the Constitution”).



Section 17 of the Flathead Allotment Act authorizes the laying out of town

sites and authorizes the Secretary of the Interior to sell individual platted lots in

those town sites. It does not authorize dedication of streets and alleys in the town

sites. The Constitution gives Congress, and only Congress, the general power over

lands of the United States. U.S.Const. Art. IV, § 3, Cl.2.

In McFarland, supra, the Ninth Circuit emphasized that federal land grants

are construed in favor of the government so that nothing passes by implication:

“In a public grant, nothing passes by implication, and unless the grant is explicit with regard to the property conveyed, a construction will be adopted which favors the sovereign…” Albrecht v. United States, 831 F.2d 196, 198 (10th Cir. 1987)

Id., at 1112; see also United States v. Webb, 219 F.3d 1127, 1132 (9th Cir. 2000)

(“‘[i]t must always be remembered that the various Indian tribes were once

independent and sovereign nations, and that their claim to sovereignty long

predates that of our own Government,’ [cases deleted].”); Imperial Granite Co. v.

Pala Band of Mission Indians, 940 F.2d 1269, 1272 (9th Cir. 1991) (“[T]he portion

of the road in control of the Pala Band lies on trust land to which the naked title is

in the United States and beneficial ownership is in the Band. The whole purpose of

trust land is the protection of land from unauthorized alienation.”).

In 1957, the DOI Field Solicitor wrote:



There is nothing in [the 1906 Act] by which the Congress has authorized the title in the United States in the streets, roads, etc. in unincorporated townsites…on the Flathead Reservation to be transferred to anyone. It would, therefore, appear that the legal title to such streets and roads is in the United States in trust for the Flathead Indians, subject, however, to the customary easement for the public use of said streets and roads.

SmithDecl.¶3.3.Y,Ex.24. In short, Congress has not conveyed title to the streets in Big Arm—they

remain in Tribal ownership.

III. THE 1906 STATUTE DEMONSTRATES CONGRESS KNEW HOW TO DELEGATE AUTHORITY TO DEDICATE STREETS—IT DID SO FOR CERTAIN WISCONSIN TRIBES, IT DID NOT FOR THE FLATHEAD.

The 1906 amendment adding Section 17 to the FAA was part of a larger

Congressional appropriations measure which addressed various Indian tribes.

SmithDecl.¶2.2.A,E,Ex.3. As noted above, Section 17, dealing specifically with the

Flathead Reservation, has no language authorizing the Secretary of Interior to

dedicate streets and alleys.

Tellingly, the same Act does authorize the Secretary of Interior to dedicate

streets and alleys with respect to a different town site. The Act provides for

creation of an “Indian town site” on the La Pointe Reservation of Wisconsin and it

authorizes the Secretary of Interior:



… to cause the lands described to be surveyed and platted into suitable lots, streets, and alleys, and to dedicate said streets and alleys and such lots or parcel[s] as may be necessary to public uses…

Act of June 21, 1906, 34 Stat. 325, at 381 (emphasis added).

(SmithDecl.¶2.2.E,Ex.3,p.381)

Thus, in the same Act, Congress authorized the dedication of streets and

alleys to “public uses” on the Wisconsin reservation, but not on the Flathead

Reservation. This constitutes an explicit expression of Congressional intent to

provide for dedication in one instance, but not the other, and is governed by the

maxim expressio unius est exclusio alterius. Boudette v. Barnette, 923 F.2d 754, 756-57

(9th Cir. 1991) (“…when a statute designates certain persons, things, or manners

of operation, all omissions should be understood as exclusions.”). The doctrine is

particularly applicable where, as here, the differing features are found in the same

statute. 2A Sutherland Statutory Construction, § 47.23 (5th ed.) (“The force of

the maxim is strengthened where a thing is provided in one part of the statute and

omitted in another.”).

Given that only Congress can divest Indian tribes of their land, and given this

contrasting language in the same statute, the conclusion follows that, in the platting

of the Big Arm town site, there was no dedication of the streets and alleys. See

Nebraska v. Parker, __ U.S. __, 136 S.Ct. 1072, 1080 (2016) (“Petitioners have



failed at the first and most important step. They cannot establish that the text of

the 1882 Act evinced an intent to diminish the reservation.”)

IV. LAKE COUNTY’S ATTEMPT TO APPLY MONTANA’S DEDICATION LAW FAILS. FEDERAL LAW GOVERNS DISPOSITION OF INDIAN LANDS.

Lake County relies on a section of state law that provided that streets and

alleys were dedicated to public use upon the filing of a plat. Doc.39,¶¶59-60. This

reliance on state law is mistaken.

There are two separate reasons why Lake County’s attempt to apply state

law fails:

1. Jurisdictionally, the U.S. Constitution vests sole authority in Congress to dispose of Indian trust lands. Unless Congress expressly incorporates state law, a state may not arrogate that authority to itself.

2. As a matter of statutory law, Section 17 of the FAA does not refer to or incorporate Montana law. Moreover, Montana’s dedication law applies only to public land town sites, not to Indian Reservation town sites.

A. The laws of the United States alone control the disposition of the title to its lands.

Section 17 of the FAA contains no incorporation or reference to Montana

law—it is purely federal. Accordingly, the issue of whether title to the streets and

alleys of the Big Arm town site was conveyed to Lake County is governed solely by

federal law.



“The scope of a grant of federal land is, of course, a question of federal law.”

U.S. v. Gates of the Mountains Lakeshore Homes, Inc., 732 F.2d 1411, 1412 (9th Cir.

1984). See United States v. Oregon, 295 U.S. 1, 27-28 (1935):

The laws of the United States alone control the disposition of the title to its lands. The states are powerless to place any limitation or restriction on that control [cases omitted]. The construction of grants by the United States is a federal, not a state, question [cases omitted].

See also Utah Power & Light Co. v. United States, 243 U.S. 389, 404 (1917) (“[T]he

power of Congress is exclusive, and…only through its exercise…can rights in land

belonging to the United States be acquired.”). See also McFarland v. Kempthorne,

supra.

In Wilcox v. Jackson, supra, the Court held that the question whether federal

title has passed is a question of federal law:

We hold the true principle to be this, that whenever the question in any Court, state or federal, is whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States….

In Crow Tribe of Indians v. Peters, 835 F.Supp.2d 985, 990 (D. Mont. 2011),

the court held that because the United States holds title to the minerals for the

benefit of the Crow Tribe, federal law controls. Id. at 999. Judge Ostby stated:

This case is analogous to Wilson v. Omaha Indian Tribe, 442 U.S. 653, 670…(1979), in which the Court held:



Here, we are not dealing with land titles merely derived from a federal grant, but with land with respect to which the United States has never yielded title or terminated its interest…. The United States continues to hold the reservation lands in trust for the Tribe…. In these circumstances, where the Government has never parted with title and its interest in the property continues, the Indians’ right to the property depends on federal law…. It is rudimentary that “Indian title is a matter of federal law….

Id. (citing Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 677…(1974)).

Peters, 835 F.Supp.2d at 998-999. That language is particularly apt here—the United

States has never “yielded title.” As these cases indicate, any state law attempt to

force a dedication would be ineffective because federal law controls.

Finally, as to the jurisdictional issue, the Montana Enabling Act, Act of

February 22, 1889 (25 Stat. 676), is significant. It provides that “until the title

thereto shall have been extinguished by the United States, the same shall be and

remain subject to the disposition of the United States, and said Indian lands shall

remain under the absolute jurisdiction and control of the Congress of the

United States…” Section 4 (emphasis added); see Montana Power Co. v. Rochester,

127 F.2d 189, 192 (9th Cir. 1942).



In short, federal law controls on disposition of federal lands. Consequently,

Montana’s dedication statutes do not apply.

B. The 1872 Montana dedication law applied only to public lands town sites. Montana had no authority to extend its law to Indian Reservations.

1. The public land laws town site acts

The various homestead statutes enacted by Congress provided a way for

farmers and ranchers to obtain ownership of large parcels of public domain land of

the United States by occupying and using the land for agricultural purposes.

However, in many cases, settlers who were not farmers or ranchers created

settlements by building streets, houses, and other buildings on public domain land

of the United States. In 1867 Congress enacted “An Act for the Relief of the

Inhabitants of Cities and Towns upon the Public Lands,” Act of March 2, 1867, ch.

177, 14 Stat. 541 (1867). 6

The federal 1867 public lands town site law expressly incorporated state (or

territorial) law. The Act provided that the county judge was to dispose of the

streets under “such rules and regulations as may be prescribed by the legislative

authority of the state or territory.” It authorized the judge to enter the land in trust

6 There were previous federal town site laws, such as the Act of May 23, 1844 (ch. 17, 5 Stat. 657, 657) and the Act of July 1, 1864, ch. 205 (§ 5, 13 Stat. 343, 344), not relevant here.



for the benefit of the occupants. The judge would receive from the U.S. a patent for

the entire proposed town site and then dispose of individual lots in accordance

with state law.

Responding to the invitation in the federal 1867 Act, in 1872, the Montana

Territorial Assembly enacted a “town-sites” measure. Montana’s 1872 law was

explicit that it was enacted pursuant to the 1867 federal town site act. It authorized

the judge of the probate court to accept a petition and enter a town site plat “under

the provisions of the Act of Congress entitled ‘an act for the relief of the

inhabitants of cities and towns upon the public lands’ approved March 2, 1867.”

See e.g. Ming v. Foote, 9 Mont. 201, 23 P. 515, 517 (1890). 7 The Montana law

required townsites to be surveyed into blocks, lots, streets, and alleys, and provided

the streets would be dedicated to public use. 1872 Mont. Laws 547, 548, §§ 3,4. A

similar dedication measure carried over into the 1895 and 1907 Montana laws. 1895

Montana Political Code, 457, 459 § 5105; 1907 Revised Codes of Montana, 1031,

1034 §3519.8

7 For unincorporated towns, the relevant official was the county judge. There was a slightly different procedure for incorporated towns. 8 The 1895 and 1907 Political Codes required a separate “certificate of dedication” and provided the required language for such dedication. 1895 Montana Political Code § 5005; 1907 Revised Codes of Montana § 3470.



Well before the FAA, this public land town site procedure was widely used

in Montana to establish towns on public lands. For example, town sites were

established in Bozeman, Edwards v. Tracy, 2 Mont. 49 (1874); Helena, Brooke v.

Jordan, 14 Mont. 375, 36 P.450 (1894) and Ming, supra; Missoula, State ex rel.

Hicklin v. Webster, 28 Mont. 104, 72 P.295 (1903); and Butte City, Davis v.

Wiebbold,139 U.S. 507 (1891). The same is true for the famous frontier town of

Deadwood, South Dakota. Deffenback v. Hawke, 115 U.S. 392 (1885).9

For the forty years after the federal Act of 1867, while town sites were

springing up on public lands, there was no federal town site on the Flathead

Reservation. Indeed, the Hell Gate Treaty continued to provide that the lands were

reserved for the exclusive use of the CSKT. It was not until 1904, with passage of

the FAA, that the Reservation was opened to allotment and homesteading. And, it

was not until the amendment to the FAA in 1906 that a procedure for town sites on

the Flathead Reservation was enacted.

9 The land, formerly reserved for the Sioux Nation, was opened to “settlement and occupation” by the Treaty with the Sioux Indians of February 8, 1877. Id. at 393.



2. The public land laws town site acts did not apply to the Flathead Reservation because the Indian Reservation lands are not public land.

The 1867 public land town site law applied only to public lands. It did not

apply to Indian reservations: “[T]he provisions of this act shall not apply to

military or other reservations heretofore made by the United States.” 14 Stat. at

542 (emphasis added). Indian reservation lands are not “public land.” Ash Sheep

Co. v. U.S., 252 U.S. 159 (1920).10 For that reason, the Montana dedication laws

did not apply to the Flathead Indian Reservation, and the issues here continue to be

governed by federal law. Peters, supra; Wilson, supra.

Unlike the FAA, the public land town site act of 1867 provided that once a

town site was certified and petitioned for in the General Land Office, a patent was

10 In United States v. Celestine, 215 U.S. 278, 287-88 (1909), the Court cited a case dealing with land that had formerly been part of the Nez Percé Reservation but was later ceded to the U.S. After discussing the history of cession to the U.S. of the relevant part of the Nez Percé Reservation, the Court discussed the Dick case:

Dick v. United States, 208 U.S. 340…does not conflict with these views, for there the place of the offense was the village of Culdesac, which although within the boundaries of the Nez Percé Reservation, as at first established, was located upon lands passed by patent from the United States under the town site laws to the probate judge of Nez Percé county, and by the town site act such location could only be on public lands. Rev. State. § 2380, U.S. Comp. Stat. 1901, p. 1455.

(emphasis added).



issued to the county probate judge for the entire town site. SmithDecl.¶2.2.I. 11

Through this procedure, the entirety of the platted townsite was patented to the

county probate judge, who, in turn, ultimately sold individual lots according to

specified procedure. Because the entirety of the town site was patented, the lands

underlying streets, alleys, and parks were conveyed, in trust, to the local judge.

Ashby v. Hall, 119 U.S. 526, 529-30 (1886) (Helena). This procedure is explained in

Ming, supra:

‘The government, instead of issuing patents to the several claimants, and instead of granting the tract to the territorial organization, transferred the title of the entire tract to the judge of the probate court of Arapahoe county, in trust for the parties entitled to conveyances.’

23 P. at 520 (emphasis added) (citing Anderson v. Bartels, 7 Colo. 265, 3 Pac. Rep.

225).

3. The procedures established by Section 17 of the FAA are different from those under the public land town site acts.

Unlike the federal township act of 1867, Section 17 of the FAA did not

authorize conveyance of the entire town site. Instead, the Secretary of Interior,

following specified procedures, sold and patented lots individually to individual

11 See, e.g., copies of the original patents for the town sites of Helena and Bozeman signed by President Ulysses S. Grant on June 15, 1872 and for the City of Missoula on the 10th day of March, 1875. Ex.29.



patentees. Smith Decl.2.3.I. Although individual lots were patented, the streets,

alleys, and public reserves were not. Therefore, title to the streets and alleys

remained with the federal government, in trust for the CSKT.

It continues to be clear that, unless a federal statute says otherwise, a State

lacks the authority to apply its laws to federal land. See Utah Power, supra; Gibson,

supra. As these cases indicate, any state law attempt to force a dedication would be

ineffective because federal law controls. Thus, it is important that, unlike the 1867

public land town site law, Section 17 of the FAA did not incorporate state law.

The removal of the southern half of the Big Arm town site in the early 1930s

provides a graphic illustration of the difference between the public land laws and

those dealing with Indian town sites. Because there was no demand, in the 1930s,

the Secretary of Interior withdrew the entire south half of the town site and

restored it to Tribal trust status. In 1956, the Secretary did the same for all unsold

lots in the north half. See Sec. C above. If the Big Arm town site had been

established under the public land town site laws, where the entire town site is

patented to the local authority, the Secretary would have lacked the authority to

withdraw the lands from further sale. For example, in Hicklin, supra, the court

addressed a portion of public land that had not been surveyed into blocks, lots,

streets, and alleys, but had been conveyed to the probate judge as part of the



Helena town site. The court stated: “What, then, is to be done with this land not

occupied or improved? To whom is it to go? Clearly, not to the general

government, for its title has ceased by the issuing of the patent…” 72 P. at 296

(emphasis added).

As noted, Lake County’s theory is that the filing of the plat in 1913 results in

the dedication of streets. If correct, the entirety of the withdrawn eighty acres, now

open lands, is, oddly, subject to Lake County’s ownership of the “streets”, based

solely on virtual lines on a map. Equally as odd, the virtual lots between the virtual

streets belong to the Tribes.

In sum, the Montana law providing for dedication of streets does not apply to

Indian town sites.

V. COMMON LAW DEDICATION DOES NOT APPLY TO INDIAN LANDS.

Although unclear, Lake County may rely on general property law to support

its claim that the filing of the plat constitutes dedication of streets. To the extent

that argument is made, it is wrong with respect to the Flathead Reservation

because, as made abundantly clear above, any conveyance of federal Indian lands

must be made by Congress, not by common law, and it must be explicit, not

implied.



VI. THERE WAS NO COMPLIANCE WITH FEDERAL OR STATE EASEMENT LAW.

What is said above regarding land ownership—that only Congress can divest

tribes of their trust land titles—applies equally to the creation of easements within

the Reservation. In Montana Mine Lands Holdings v. U.S. Department of Agriculture,

No. CV-17-65-M-CCL, 2018 WL 1640866 (D. Mont. Apr. 5, 2018), the court flatly

said: “The fact that a road is drawn on the plat cannot provide an implied or

express easement, as a matter of law.” Judge Lovell went on to state:

…the rules regarding easements over lands of the United States are substantially different from the rules applicable to private property. “In a public grant, nothing passes by implication, and unless the grant is explicit with regard to the property conveyed, a construction will be adopted which favors the sovereign…” Albrecht v. United States, 831 F.2d 196, 198 (10th Cir. 1987)…

Id. at *2.

Although federal law governs divestment of federal lands, in the case of

easements certain statutes explicitly incorporate state law. This concept is

discussed in Superior Oil Co. v. U.S., 353 F.2d 34 n.4 (9th Cir. 1965):

Since the Constitution gives Congress general power over lands of the United States, see U.S.Const. Art. IV, § 3, Cl. 2, and since the lands through which the claimed easement passes are owned by the United States, the extent of the easement is given by federal law unless there is a federal statute which makes state or local law applicable.



United States v. Oklahoma Gas & Electric Co., 127 F.2d 349, 352 (10th Cir. 1942), affirmed 318 US. 206…(1943)).

(emphasis added);

The applicable Act of Congress providing for the creation of public roads on

Indian reservations is the Act of March 3, 1901, ch. 832, 31 Stat. 1058, 1084, §4, 25

U.S.C. § 311 (hereinafter “1901 Act”).12 Section 4 of the 1901 Act gave the

Secretary of Interior authority to grant permission, upon compliance with

conditions he deems necessary, for the “opening and establishment of public

highways, in accordance with the laws of the State or Territory in which the

lands are situated, through any Indian reservation…” Id.,¶3.1.A,Ex.18,p.1084

(emphasis added).

The 1901 law was addressed in United States v. Oklahoma Gas & Electric Co.,

127 F.2d 349, 352 (10th Cir. 1942):

In the first instance, the authority to open and establish a state highway across Indian land allotted in severalty to restricted Indians is derived from the federal statute, section 4 of the 1901 Act, and the extent to which that power may be exercised is subject to the limitations placed upon it by the Act itself. Its interpretation and construction is peculiarly within the competence of the

12 Congress, in 1948, adopted 25 U.S.C. §§ 323-328, which originated as §§ 3 and 4 of the 1901 Act. See United States v. 10.69 Acres of Land, More or Less, in Yakima County, 425 F.2d 317 (9th Cir. 1970). Section 324 provides that the consent of “the proper tribal officials” is required for any right-of-way “across any lands belonging to a tribe organized under the [Indian Reorganization Act]”.



federal courts, uninfluenced by any state notions of its meaning and purpose. State or local laws are applicable only to the extent to which they are made applicable by the federal statute, and the extent to which they are made applicable by the federal statute is also a federal question [cases omitted]….

(emphasis added).13

The 1901 Act’s implementing regulations (SmithDecl.¶3.1.B,Ex.19) provide

that local road authorities are required to make formal application to the Secretary

of the Interior with certain detailed showings and provide that the Indian agent is to

bring the matter to the attention of the affected Indians and/or Tribe and make a

report and forward the application to the Commissioner of Indian Affairs who then

must submit the application and his recommendation to the Secretary of Interior

for approval or disapproval. Id.,¶3.1.C,Ex.19,pp.122-23.

Looking, in turn, to the incorporated law of Montana, the 1907 Revised

Codes of Montana required a petition for opening a new road, appointment of

viewers, a viewers’ report, a hearing before the county commissioners with notice

13 In United States v. Oklahoma Gas & Electric Co., 318 U.S. 206 (1943), the Court cited this language in holding that the scope of the easement was governed by state (Oklahoma) law. The initial permission to establish a road across Indian lands, however, requires compliance with both the federal Acts and the laws of the relevant state.



to non-consenting landowners, and a formal order of the commissioners opening

the road. Sections 1390-1398. SmithDecl.¶.3.1.E.

A second public road law was passed in 1915, the Act of March 4, 1915, Pub.

L. No. 63-310, ch. 161, 38 Stat. 1188, 1189 (hereinafter “1915 Act”). The 1915 Act

is similar to the 1901 Act, but it applies specifically, in Section 2, to Montana Indian

Reservations. It supplemented, rather than supplanted, the 1901 Act.14

The procedures set forth in the 1915 Act are similar to those of the 1901 Act.

Section 2 allows Montana counties to lay out public roads on Montana Indian

reservations upon completion of a six-step process, pursuant to Montana law. 38

Stat. at 1189.

Lake County, including its predecessor Flathead County, did not comply

with the procedures of either Act and, therefore, there was never a public easement

established with respect to the streets of Big Arm. SmithDecl.¶3.3.H-I.

In Peasley v. Trosper, 103 Mont. 401, 64 P.2d 109, 112-113 (1936), the court

relied on both the 1901 Act and the 1915 Act in considering the question of whether

a road within the Flathead Reservation was properly deemed to be a public road.

The court noted that under the 1915 Act, “…a road across Indian lands in Montana

14 The relationship between the 1901 Act and the 1915 Act and related legislative history is discussed in a decision by the Interior Board of Indian Appeals, Simpson v. Rocky Mountain Regional Director, 37 I.B.I.A. 182 (3/27/2002).



is deemed a public road when it is opened and laid out by the legal authorities

charged with the duty of laying out and opening public roads under the laws of this

state…” The court noted the applicable state procedures had not been followed:

Chapter 143, sections 1635-1651, Revised Codes, contains our various statutory provisions with reference to the opening and laying out of public highways…It was agreed on the trial in open court that no attempt had been made to lay out or open this highway pursuant to these statutory provisions. Accordingly, the road has never been laid out or opened by the highway authorities in conformity with the laws of the state of Montana.

(emphasis added). This was followed in Pedersen v. Dawson County, 2000 MT 339,

¶¶ 20-22, 303 Mont. 158, 17 P.3d 393:

In Peasley…, even though the superintendent of Indian lands in Montana signed a consent form to create a public road, the court held that the statutory procedures must be followed. The court found that “the road had never been laid out or opened…in conformity with the laws of the state of Montana.” Peasley, 103 at 410…Therefore, we held that the road in question was not a public road.

Pedersen, ¶ 21.15

15Historically, Flathead and Lake County officials were fully apprised of the 1901 easement Act and its regulations and they abided by those regulations with respect to other roads within the Flathead Reservation, but not for Big Arm. SmithDecl.¶¶3.3.A-I. An example on the Flathead Reservation where there was compliance with the 1901 Act is United States v. Mountain State Telephone and Telegraph Company, 434 F.Supp. 625 (D. Mont. 434 1977), Judge Russell Smith noted that: “On June 5, 1916, the Superintendent of the Flathead Reservation approved a plat for a public road over reservation lands in Sanders County, Montana…[citing ‘the Act of March 3, 1901’].” Id. at 626-627.



In short, before a public road may be established within an Indian

reservation, formal steps were required, both under federal law and pursuant to

Montana state law. Lake County did not comply with the procedures with respect

to Big Arm, and the attempts to establish some kind of easement by implication do

not comply with these statutes. Again, only Congress may dispose of Tribal land,

and the required steps were not taken in this case.

CONCLUSION

Lake County has raised various defenses in its counterclaim based on the

Treaty, statements in various letters of lower-level Interior officials, and

compensation received by the Tribes through the Court of Claims. These have

been addressed in part in CSKT’s Motion to Dismiss Counterclaim, Doc.52.

Because of the word limitation in the local rules, responses to these arguments are

reserved for the Tribes’ reply. Suffice it to repeat—only Congress can divest

Tribes of their land—and Congress did not do so here.

In any event, the claim that the Tribes were compensated for streets and

alleys is belied by Lake County’s own pleadings:

The 126.66 acres that CSKT received payment for did not include the roads, alleys, and reserves within the Big Arm town site.

Doc.39,¶93 (emphasis added).



For the foregoing reasons, the Court should enter summary judgment in

favor of the Tribes.

Respectfully submitted this 6th day of November, 2019,

Daniel J. Decker John T. Harrison Shane Morigeau CSKT Legal Department

James H. Goetz GOETZ, BALDWIN & GEDDES, P.C. ATTORNEYS FOR CONFEDERATED SALISH AND KOOTENAI TRIBES /s/ James H Goetz James H. Goetz

CERTIFICATE OF COMPLIANCE



Pursuant to Local Rule 7.1(d)(2)(E), I certify that the foregoing document is

printed with proportionately spaced Equity Text A text typeface of 14 points; is

double-spaced; and the word count, calculated by Microsoft Word and excluding

the Caption, Table of Contents, Table of Authorities, Index of Exhibits, and this

Certificate, is 6,498.

Dated this 6th day of November, 2019,

/s/ James H. Goetz James H. Goetz


Documents

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