Contrary Jurisprudence: Tribal Interests in Navigable Waterways Before and After Montana v. United States

Authors

Russel Lawrence Barsh
James Youngblood Henderson

Abstract

In 1974 the Crow Tribal Council enacted a resolution restricting reservation hunting and fishing to tribal members. No distinction was made between lands owned by the tribe or its members and the nearly thirty percent of the reservation area held in fee simple by non-members and the State of Montana. The resolution also purported to govern the Big Horn River, the bed of which the tribe claimed under its 1868 treaty with the United States. The State of Montana refused to recognize the tribe's jurisdiction to enact and enforce this restriction and continued to license non-member hunting and fishing within the reservation. As record owner of Indian land on the Crow reservation "in trust" for the tribe, the United States filed suit in 1975 to quiet title to the riverbed and to establish exclusively federal and tribal authority to regulate hunting and fishing on the reservation. Crow claims to the bed of the Big Horn River were first considered in 1976 in United States v. Finch. The Ninth Cicuit upheld federal title to the riverbed "in trust" for the Crows, but its judgment was vacated by the Supreme Court on unrelated grounds the following year. When the same issues of title were renewed in United States v. Montana, the Ninth Circuit reaffirmed its holding in Finch. Both Ninth Circuit decisions noted similarities to the Supreme Court's 1970 opinion in Choctaw Nation v. Oklahoma. Like the Choctaws, the Crows relied on a treaty that described their territory in metes and bounds enclosing the contested waterway. The United States promised the Choctaws "virtually complete sovereignty" over their territory; the Crows were to enjoy "absolute and undisturbed use and occupation" of theirs. If anything, the Crows' case was stronger. The Choctaws emigrated from the southeast to resettle on lands patented to them in fee by the United States, while the Crows' territory was original and never had been subject to the power of the United States to dispose of lands by patent. The Choctaws' treaty subjected their government to federal preemption, while the Crows relinquished legislative jurisdiction only over the allotment of lands in severalty to consenting tribal members.

First Page

627

Recommended Citation

Russel L. Barsh & James Y. Henderson, Contrary Jurisprudence: Tribal Interests in Navigable Waterways Before and After Montana v. United States, 56 Wash. L. Rev. 627 (1981).
Available at: https://digitalcommons.law.uw.edu/wlr/vol56/iss4/11