United States District Court, D. Montana, Great Falls Division
ENROLLED MEMBERS OF THE BLACKFEET TRIBE aka Treaty Status Indians; RICHARD HORN; DUANE MANY HIDES; ROY INGRAM; ERNEST OLSON; LARRY M. REEVIS, Plaintiffs,
THEDUS CROWE; KEVIN K. WASHBURN; SALLEY JEWELL; BARACK OBAMA, Defendants.
FINDINGS AND RECOMMENDATIONS
Johnston United States Magistrate Judge.
Richard Horn, Duane Many Hides, Roy Ingram, Ernest Olson and
Larry M. Reevis have filed an Amended Complaint pro
se. (Doc. 29). Plaintiffs are all enrolled members of
the Blackfeet Tribe. The named Defendants consist of Thedus
Crowe, a Bureau of Indian Affairs Superintendent; Kevin K.
Washburn, Assistant Secretary of the Bureau of Indian
Affairs; Salley Jewell, Secretary of the Interior; and Barack
Obama, former President of the United States.
challenge the integrity of the Blackfeet Water Compact that
was executed by the Blackfeet Tribe, the State of Montana,
and the United States in 2009. (Docs. 1, 11-15, 29).
Plaintiffs allege that the Blackfeet Water Compact is invalid
for the following two reasons: 1) the Blackfeet Tribal
Business Council lacked the authority under tribal law to
negotiate and ratify the Compact on behalf of the Blackfeet
Tribe; and 2) the referendum election through which the
Tribal membership adopted the Compact violated Article IX of
the Blackfeet Constitution, given that less than one-third of
the eligible voters of the Blackfeet Tribe voted in the
election. (Doc. 29 at 2-3).
seek injunctive relief, monetary relief and mandamus relief.
Plaintiffs request that the Court transfer “legal title
to all natural resources on . . . the Blackfeet Indian
[R]eservation” to them. (Doc. 1 at 2). Plaintiffs
request that the Court stop the “illegal disposition of
the Blackfeet tribal property.” Id. Plaintiffs
request that the Court prohibit the state of Montana
“from exercising adjudicatory jurisdiction over the
Blackfeet Indian [R]eservation and Blackfeet [T]ribal Water
Right(s).” Id. Plaintiffs request that the
Court grant them “Title to all water ways originating
or passing through the Blackfeet Indian [R]eservation,
” and Plaintiffs seek “compensatory . . . damages
for the illegal capture and utilization of . . . Tribal Water
Right[s].” (Doc. 1 at 3).
have moved to dismiss this action under Fed.R.Civ.P. 12.
Defendants argue that Plaintiffs' Amended Complaint
should be dismissed for lack of subject matter jurisdiction,
and for failure to state a claim upon which relief may
court conducted a hearing on the Defendants' motion to
dismiss on August 22, 2018.
Blackfeet Tribe, the State of Montana, and the United States
executed the Blackfeet Water Compact in 2009. The Montana
legislature codified the Compact at Mont. Code Ann. §
85-20-1501. The stated purpose of the Compact was “to
settle for all time any and all claims to federal reserved
water rights for the Blackfeet Tribe within the boundaries of
the Blackfeet Indian Reservation.” Id. The
Compact quantifies the Blackfeet Tribe's federal reserved
water rights. Id. The Compact describes the terms
under which the Blackfeet Tribe may use, lease, contract, or
exchange portions of its water rights. Id. The
Compact protects the rights of non-Indian water users, and
the Compact provides for federal and state funding for water
related infrastructure projects on the Blackfeet Indian
Reservation. Id. The federal government has agreed
to contribute $422 million for water related infrastructure
projects on the Blackfeet Indian Reservation. The state of
Montana has agreed to contribute $49 million. (Doc. 33 at
United States Congress ratified the Compact under the
Blackfeet Water Rights Settlement Act, P.L. 114-322, 130
Stat. 1841, § 3701 et seq. in December of 2016.
The Blackfeet Tribe voted to approve both the Blackfeet Water
Compact (the state legislation) and the Blackfeet Water
Rights Settlement Act (the federal legislation) in April of
2017, in a referendum election conducted by the Blackfeet
Business Council. The Blackfeet Tribe approved the Blackfeet
Water Compact and the Blackfeet Water Rights Settlement Act
by a vote of 1, 894 in favor to 631 against. See
Blackfeet Tribal Resolution No. 152-2017.
Motion to Dismiss Legal Standard
complaint may be dismissed for lack of subject matter
jurisdiction under Fed.R.Civ.P. 12(b)(1). A motion to dismiss
for lack of subject matter jurisdiction may challenge the
sufficiency of the allegations of the complaint (a facial
challenge), or it may challenge the truth of the allegations
regarding the existence of subject matter jurisdiction (a
factual challenge). See White v. Lee, 227 F.3d 1214,
1242 (9th Cir. 2000).
the challenge to jurisdiction is a facial attack because the
Defendants contend that the allegations of jurisdiction
contained in the pleadings are insufficient on their face to
demonstrate the existence of jurisdiction. When reviewing a
facial challenge to jurisdiction, the Court must assume that
all material allegations in the complaint are ...