2

Most critical at the moment are the contracts which the

Bureau of Reclamation has entered into with the above named companies

However, a

and others, for the sale of the Big Horn River water. Memorandum of Understanding between the Secretary of the Interior and the Secretary of the Army, dated February 24, 1975, for the sale of water, has brought into focus the issue of Indian rights to the use of

Footnote 1 continued:

in the case of Winters v. United States, 207 U.S. 564 (1908) that
Montana's Fort Belknap Tribe had retained, when it ceded lands to
the United States, rights to the use of water in the Milk River,
then a major tributary of the Missouri. That occurred when its
Reservation was established by the Treaty of 1855 and by the Tribe's
later Agreement of May 1, 1888 with the United States.

Adhering to the principles of the Winters Doctrine as announced
by the Supreme Court, the Court of Appeals for the Ninth Circuit
in the year 1908, declared that Montana's Blackfoot Tribe had
likewise reserved for itself rights to the use of water in Birch
Creek, a tributary source of water in the Upper Missouri River
Basin. That decision, Conrad Investment Company v. United States,
161 Fed. 829 (CA9, 1908), emphasized that the Blackfoot Tribe had
retained in accordance with the rationale of the Winters Decision -
did not grant away
rights to the use of water sufficient to
meet its present and future water requirements.

In regard to Montana's Crow Indian Tribe, the Supreme Court in United States v. Powers, 305 U.S. 537 (1939), reaffirmed the Winters Doctrine, declaring that Crow Indian Tribe by its 1868 Treaty with the United States had reserved rights to the use of water in the Little Big Horn River, a tributary of the Big Horn River which is likewise a tributary source in the Upper Missouri River Basin.

In the above referred to 1972 North Dakota Law Review, there is set forth in detail the applicability of the Winters Doctrine in regard to the numerous Indian Reservations in the Upper Missouri River Basin. Particular reference is made to the seizure or serious impairment of the Indian rights on the principal tributary streams in Wyoming, Montana, North and South Dakota by the Bureau of Reclamation and the United States Army Corps of Engineers. (See page 634, footnote 90)

In the above referred to 1974 North Dakota Law Review, there is analyzed the immunity of the Indian Winters Doctrine rights to the use of water from State laws. Particular reference is made to the Enabling Acts and Constitutions of South Dakota, North Dakota and Montana.

3

water in the entire Upper Missouri River Basin. All citizens of the United States, particularly the American Indians in the arid and semiarid West must consider the critical decisions now being made in the vast area which the Upper Missouri River Basin encompases, with its virtually unlimited coal supply. The main stem of the Missouri River with the huge reservoir capacity constructed over the last thirty years, has seemingly an abundance of water. That, however, is untrue respecting the tributaries of the Missouri. It is to those tributary areas that these comments are primarily directed. There is an imperative need

that this Nation, its people and the Indian Nations and Tribes avoid in the Missouri River Basin the tragedy that has occurred in the Colorado River Basin and its tributaries, for example, the San JuanRiver Basin and the Lower Basin of the Colorado River which has been disastrously depleted both as to quantity and quality of water.

These comments do not purport to be and are not reflective

of the policies of the Department of the Interior. Rather, they are my own based upon personal investigations, research and knowledge over a period of years throughout the Upper Missouri River Basin and Western United States in general.

On the following page is a Bureau of Reclamation map which may be helpful in regard to geographical location in southern Montana

and northern Wyoming.

This statement directed to the Upper Missouri River Basin is supplementary to earlier Congressional Publications

Congress, by a publication entitled "Federal Encroachment

on Indian Water Rights And The Impairment Of Reservation Development"

4

2/ released January 18, 1970, by the Joint Economic Committee, first brought to focus the grave conflicts of interest within the Department of the Interior and the Department of Justice, with the resultant pattern of confiscation of Indian rights by the Bureau of Reclamation. That publication referred to in these comments as "Federal Encroachment on Indian Water Rights", was approved by and submitted to the Joint Committee by the Department of the Interior through the Commissioner of Indian Affairs. Chronicled in "Federal Encroachment on Indian Water Rights" are numerous examples of the seizure of Indian rights by the United States, both in and out of the Upper Missouri River Basin. Emphasized and documented in that publication is the

incongruity that those violations of Indian rights were carried out by the principal agents of the United States, Trustee for the American Indians

the Secretaries of the Interior acting through the Bureau of Reclamation, who frequently were aided by the Attorneys General, the chief law officers of the National Government.

"Federal Encroachment

Rather

on Indian Water Rights" and this supplement to it is not an attack upon the incumbent Secretary of the Interior or Attorney General. it demonstrates the contradictions in the law which have placed the chief administrator of natural resources and the chief legal officer of this Nation in the position of participating in the confiscation of Indian rights to the use of water. While thus engaged they are, of course, required by law to preserve, protect and defend those very same Indian rights to the use of water.

2/ "Federal Encroachment. On Indian Water Rights And The Impairment Of Reservation Development," 91st Cong., 1st Sess. A Compendium

of Papers Joint Economic Committee, Vol. 2, pp. 460 et seq.

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It is essential to note that "Federal Encroachment on Indian Water Rights" was used, among other sources, by the White House staff in preparing the President's Message of July 8, 1970, entitled "A New Indian Doctrine." Under a subheading of "Indian Trust Counsel Authority" the Message with accuracy outlined the long established principle that the United States "* * * acts as a legal trustee for the land and water rights of American Indians." Moreover, declares the "New Indian Doctrine" the Attorney General and the Secretary of the Interior are invested with power and authority to meet the legal obligations required to protect those rights. Fulfillment of those obligations requires performance by them "with the highest degree of diligence and skill." Irrespective of that obligation of agents for the Trustee United States, the President's Message states that those high officers frequently fail in their performance due to an "*** inherent conflict of interest." The Message then concludes that: "No self-respecting law firm would ever allow itself to represent two opposing clients in one dispute;, yet the Federal government has frequently found itself in precisely 3/ that position."

Senator Kennedy, Chairman of the Subcommittee on Administrative Practice and Procedure published on December 15, 1970, a paper entitled "Discharge of the Federal Trust Responsibility to Enforce Claims of Indian Tribes: Case Studies of Bureaucratic Conflict

of Interest." From "Federal Encroachment on Indian Water Rights"

3/ Congressional Record, Senate July 9, 1970, pp. 10894 et seq., Sec. 8, S. 10896 et seq.

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