Legal foundation defends non-Indians sued by tribes

The Mountain States Legal Foundation announced recently that it will defend two families sued by the Confederated Salish and Kootenai Tribes in Montana federal district court in February. 

Robert and Judy Harms of Hot Springs and Wayne and Betty Stickel of Lonepine, who both own property on the Flathead Indian Reservation, were sued by the tribes in an effort to reclaim the land for the reservation. 

In their lawsuit, the tribes claim all water and land within the boundaries of the reservation, and thus challenge the validity of the original homesteaders’ patents and seek to acquire those lands and their water rights. In addition, the Tribes challenge a federal law assigning primary responsibility for adjudicating and administrating water rights to state and not federal courts — the McCarran Amendment of 1952.

The Mountain States Legal Foundation, based in Denver, is a nonprofit, public-interest legal foundation with decades of experience dealing with issues involving American Indians and Western water rights. 

“Our clients’ land was open for entry for 105 years, and in private hands for much of that time,” said William Perry Pendley, president of the foundation. “The water rights appurtenant to those lands were owned fully by our clients and their predecessors for decades.  We will vigorously defend those rights.”

Established by the Treaty of Hellgate in July 1855, the Flathead Indian Reservation is located mostly in Lake County, but also in Sanders, Missoula, and Flathead counties and contains part of Flathead Lake. 

In 1904, Congress, with the Flathead Allotment Act, required allotment of Reservation lands to tribal members and provided that the unallotted lands could be free for settlement and entry under the homestead laws. In 1905, Montana passed a law to make “it easier for the United States to proceed with its valuable work of reclamation and improvement of land.” In 1908, Congress created the Flathead Irrigation Project for all landowners and provided for repayment of construction and operation/maintenance costs.  In 1909, President Taft opened the reservation to settlement by non-Indians.

In 1926, Congress compelled creation of irrigation districts under Montana law, leading to three districts: the Flathead, the Jocko Valley, and the Mission. In 1985, Montana’s Supreme Court held the state’s water law was adequate to adjudicate federal and Indian reserved water rights.