United States District Court, D. Montana, Missoula Division
L. Christensen, Chief District Judge.
the Court are Plaintiffs Confederated Salish and Kootenai
Tribes' Motions to Dismiss the Counterclaims of
Defendants Lori Lundeen and Lake County Board of
Commissioners ("Lake County"). (Docs. 32 &
The Tribes seek dismissal of the Defendants'
counterclaims for lack of subject matter jurisdiction,
pursuant to Federal Rule of Civil Procedure 12(b)(1).
Although it notes that the practical effect of this Order is
limited, the Court grants the motions and dismisses the
Defendants' counterclaims in full.
Confederated Salish and Kootenai Tribes are a federally
recognized confederation of Indian tribes that once occupied
what is now western Montana and parts of Idaho, Wyoming, and
British Columbia. Today, the Tribes are headquartered in the
Flathead Indian Reservation, which encompasses 1.3 million
acres of western Montana, extending north of Missoula through
the lower half of Flathead Lake. See Hell Gate
Treaty of 1855, July 16, 1855, 12 Stat. 975, 1855 WL 10416
("Commencing at the source of the main branch of the
Jocko River; thence along the divide separating the waters
flowing into the Bitter Root River from those flowing into
the Jocko to a point on Clarke's Fork between the Camash
and Horse Prairies; thence northerly to, and along the divide
bounding on the west the Flathead River, to a point due west
from the point halfway in latitude between the northern and
southern extremities of the Flathead Lake; thence on a due
east course to the divide whence the Crow, the Prune, the
So-ni-el-em and the Jocko Rivers take their rise, and thence
southerly along said divide to the place of
the Hell Gate Treaty, signed in 1855, the United States
agreed that the Reservation would be "set apart... for
the exclusive use and benefit" of the Tribes. Hell Gate
Treaty art. II. Non-Indian settlers could reside within the
Reservation's boundaries only with the Tribes'
permission. Id. And the Tribes agreed to relinquish
their claim to their historic territories, allowing "all
citizens of the United States to enter upon and occupy as
settlers any lands not actually occupied and cultivated by
said Indians at this time, and not included in the
[Reservation]." Id. Particularly relevant in
this litigation, the Hell Gate Treaty provides: "That if
necessary for the public convenience roads may be run through
the said reservation; and, on the other hand, the right of
way with free access from the same to the nearest public
highway is secured to them, as also the right in common with
citizens of the United States to travel upon all public
highways." Id. art. III.
1904, Congress passed the Flathead Allotment Act, which
forced the allotment of Reservation lands to individual
Indians. Act of April 23, 1904, Pub. Law No. 58-159, 33 Stat.
302 (1904). The 1904 Act provided that unallotted
agricultural and grazing lands would be distributed to
non-Indians by presidential proclamation following a survey
of the Reservation. Id. The United States would
"act as trustee for ... Indians" in opening up the
Reservation for non-Indian settlement and collecting and
expending any revenues received from the sale of land.
Id. at 305-06. The Act authorized the platting of
specific town sites and delegated authority to the Secretary
of the Interior to plat other as-yet undetermined town sites
within the Reservation. Act of Feb. 27, 1906, Pub. L. No.
59-258 § 17, 34 Stat. 325, 354 (1906).
Taft issued the ensuing proclamation on May 22, 1909, opening
up parts of the Reservation for settlement by interested
non-Indians. Proclamation of May 22, 2009, 36 Stat. 2494.
Following the Act and presidential proclamation, in 1910 the
U.S. General Lands Office ordered a plat for the Big Arm town
site in anticipation of non-Indian settlement. (Doc. 43 at
3.) Approved in 1913, the plat encompasses 206.66 acres of
Reservation land bordering the southwest shore of Flathead
Lake. (Doc. 43 at 3; 1-1.) Big Arm was never incorporated as
a town, and the actual development of the land does not
correspond closely to the 1913 plat. (Doc. 43 at 4.) In 1956,
in recognition of the lack of interest in non-Indian
settlement, the Department of the Interior gave notice that
much of Big Arm would be "restored to tribal
ownership." Notice: Restoring Lands to Tribal Ownership,
21 Fed. Reg. 6681-82 (Sept. 5, 1956).
present dispute relates to a small parcel of land within the
Big Arm town site. Defendant Lori Lundeen owns 40 acres of
land bordering Big Arm, which she is developing as an RV
resort. (Doc. 43 at 2.) Lundeen began developing a road
through Big Arm to access her property. She has asserted that
no other access route is feasible. At issue is her right to
develop and use this road.
early 2018, Lundeen applied for a permit for her proposed
development to Lake County. (Doc. 43 at 4.) At a Lake County
Board of Commissioners meeting held on April 11, 2018, the
Tribes' representative to the Board raised concerns about
Lundeen's ability to access the property, as no developed
road reached Lundeen's acreage. (Doc. 43 at 4.) Her
concerns were echoed by a Big Arm resident attending the
meeting. (Doc. 1-5.) The Board recognized that there was not
a developed road leading to the property and noted that the
proposed access road would run through the Big Arm town site
in rough alignment with the roads proposed in the 1913 plat.
(Doc. 1-5.) According to the minutes of the meeting,
"The situation [regarding the road] was discussed
further, and people agreed it was messy." (Doc. 1-5 at
7.) Despite the concerns raised at the meeting, the Board
voted 7 to 3 in favor of recommending preliminary approval of
the subdivision. (Doc. 1-5 at 8.)
quickly began to plan for and advertise the resort. (Doc. 16
at 10.) The Lake County Board of Commissioners issued its
conditional approval of Lundeen's Wild Horse RV Resort
Subdivision on May 16, 2018. (Doc. 43 at 5.) The final
subdivision plat was to be recorded only after: (1) Lundeen
and the County's Planning Department investigated legal
access; and (2) Lundeen confirmed that the county considered
access to be legal. (Doc. 43 at 5; Doc. 1-6.)
13, 2019, the Tribes placed a gate at the end of the
developed road Lundeen had been using to access the emerging
road and her property. (Doc. 43 at 5.) The Bureau of Indian
Affairs issued a notice of trespass to the construction
company hired by Lundeen to make improvements to the
property. It reads:
This letter is to notify you that we have determined you are
trespassing on Indian trust land. . . .
On April 16, 2019 the Tribal Lands Department inspected and
took photos of heavy equipment in the Big Arm Townsite,
Blocks 15, 16, 18, 29 & 30, located in Section 33,
Township 24 North, Range 21 West, P.M.M., Flathead
While inspecting the area on May 13, 2019, the Field
Technician additionally observed heavy equipment constructing
and improving a new road on tribal trust lands in Blocks 15,
16, 18, 29 & 30 of the Big Arm Townsite, a portion of
tribal tract T 6001, without a valid grant ...