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1 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 1 of 50 Hertha L. Lund Breeann M. Johnson Lund Law PLLC 662 S. Ferguson Ave., Unit 2 Bozeman, MT Telephone: ( Facsimile: ( Lund@Lund-Law.com Johnson@Lund-Law.com Elizabeth A. Brennan Brennan Law & Mediation, PLLC 516 W. Mountain View Drive Missoula, MT Telephone: ( Facsimile: ( Beth@BrennanLawandMediation.com Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION CROW ALLOTTEES ASSOCIATION, a Montana nonprofit corporation; ERMA JEAN FIGHTER MOCCASIN; CLAUDIA E. FLATMOUTH; KATHLEEN L. FLATMOUTH; LEON B. FLATMOUTH; REBECCA K. FLATMOUTH; RONALD J. FLATMOUTH; CARLSON GOES AHEAD; MICHAEL HILL; FLOYD HORN; BEVERLY GREY BULL HUBER; STEPHEN D. HUBER; HENRY OLD HORN; SHARON S. PEREGOY; LYNNA SMITH; and, FRANCIS JOE WHITE CLAY, Cause No. CV BLG-SPW-CSO FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY,INJUNCTIVE, AND OTHER RELIEF, AND REQUEST FOR JURY TRIAL First Amended Class Action Complaint Page 1

2 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 2 of 50 v. Plaintiffs, UNITED STATES BUREAU OF INDIAN AFFAIRS; UNITED STATES DEPARTMENT OF THE INTERIOR; SALLY JEWELL, in her official capacity as United States Secretary of the Interior, KEVIN WASHBURN, in his official capacity as Assistant Secretary of the Interior for Indian Affairs; the MONTANA WATER COURT CHIEF JUDGE RUSSELL McELYEA, and ASSOCIATE WATER JUDGE DOUGLAS RITTER, Defendants. COME NOW Plaintiffs Crow Allottees Association, a Montana nonprofit corporation; Erma Jean Fighter Moccasin; Claudia E. Flatmouth; Kathleen L. Flatmouth; Leon B. Flatmouth; Rebecca K. Flatmouth; Ronald J. Flatmouth; Carolson Goes Ahead; Michael Hill; Floyd Horn; Beverly Grey Bull Huber; Stephen D. Huber; Henry Old Horn; Sharon S. Peregoy; Lynna Smith; and Francis Joe White Clay (collectively, the Named Plaintiffs, by and through undersigned counsel, and pursuant to F.R.Civ.P. 15(a(1(B, and as a matter of right file this First Amended Class Action Complaint. The Named Plaintiffs bring this class action on behalf of themselves and all other similarly situated owners of individual Indian First Amended Class Action Complaint Page 2

3 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 3 of 50 trust allotments on the Crow Indian Reservation ( Allottees. Defendants are the United States Department of the Interior, Sally Jewell (in her official capacity as United States Secretary of the Interior, the United States Bureau of Indian Affairs, Kevin Washburn (in his official capacity as Assistant Secretary of the Interior for Indian Affairs, and the Montana Water Court Chief Judge Russell McElyea and Associate Water Judge Douglas Ritter. For their cause of action, Named Plaintiffs state as follows: INTRODUCTION 1. This is a class action for declaratory, due process, statutory, mandamus and injunctive relief to compel the United States Department of Interior ( United States and its officials who, in their official capacities, are responsible for providing independent legal representation to the Named Plaintiffs and other similarly situated owners of individual Indian trust allotments on the Crow Indian Reservation: (1 in the protection and adjudication of the Allottees Winters Doctrine reserved water rights appurtenant to their trust allotments; (2 in water-rights settlement negotiations with the state of Montana, the United States, and the Crow Indian Tribe; and (3 in the negotiation, ratification, and implementation of the Crow Tribe - Montana Compact ( Crow Compact (Mont. Code Ann , et seq.. First Amended Class Action Complaint Page 3

4 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 4 of In addition, this class action seeks an order enjoining all proceedings in the following case currently pending in the Montana Water Court: In the Matter of the Adjudication of Existing and Reserved Rights to the Use of Water, Both Surface and Underground, of the Crow Tribe of Indians of the State of Montana, Case No. WC ( Water Court Case. PARTIES 3. Plaintiff Crow Allottee Association is a Montana nonprofit corporation with its principal place of business in Big Horn County, Montana. The Crow Allottee Association consists of members who are owners and beneficiaries of Indian trust allotments on the Crow Reservation. Many of the named plaintiffs in this action are members of the Crow Allottee Association. The mission of the Crow Allottee Association is to educate the public and its members regarding the laws of the State of Montana and the laws of the United States, and to protect and assert the property rights of the Allottees, including the Indian Winters Doctrine reserved water rights appurtenant to trust allotments. The Crow Allottee Association endeavors to foster, maintain and implement the trust relationship between the Allottees and the federal government, and to protect the Allottees lands and natural resources, including providing legal First Amended Class Action Complaint Page 4

5 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 5 of 50 support on behalf of the Allottees. 4. Plaintiff Erma Jean Fighter Moccasin is an enrolled member of the Crow Tribe and holds a majority interest in Allotment Nos and Ms. Fighter Moccasin has fractional interests in several other trust allotments on the Crow Reservation. Ms. Fighter Moccasin has a beneficial interest in at least acres that are irrigated or irrigable on her allotted lands. 5. Plaintiffs Claudia E. Flatmouth, Kathleen L. Flatmouth, Leon B. Flatmouth, Rebecca E. Flatmouth, and Ronald J. Flatmouth (collectively referred to as Flatmouths are enrolled members of the Crow Tribe and allottees who have majority interests in Allotment Nos. 831A acres; 923A 160 acres; 923-B acres; 970B 27.5 acres; acres; 1960F 140 acres. The Flatmouths have fractional interests in several other allotments on the Crow Reservation. 6. Plaintiff Carlson Goes Ahead is an enrolled member of the Crow Tribe and holds fractional interests in several allotments on the Crow Reservation. 7. Plaintiff Michael Hill is an enrolled member of the Crow Tribe and has a majority interest in Allotment No. 1833, consisting of 720 acres. Mr. Hill also holds fractional interests in several other allotments on the First Amended Class Action Complaint Page 5

6 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 6 of 50 Crow Reservation. 8. Plaintiff Floyd Horn is an enrolled member of the Crow Tribe and holds fractional interests in several allotments on the Crow Reservation. 9. Plaintiff Beverly Grey Bull Huber is an enrolled member of the Crow Tribe and holds interests in several trust allotments on the Crow Reservation. Ms. Huber has a beneficial interest in at least acres that are irrigated or irrigable on her allotted lands. 10. Plaintiff Stephen D. Huber is an enrolled member of the Crow Tribe and holds a majority interest in Allotment No. 3444C. Mr. Huber has a beneficial interest in at least 120 acres that are irrigated or irrigable on his allotted lands. 11. Plaintiff Henry Old Horn is an enrolled member of the Crow Tribe and holds interests in several trust allotments on the Crow Reservation. Mr. Old Horn has an interest in at least 71.7 acres that are irrigated or irrigable on his allotted lands. 12. Plaintiff Sharon Peregoy is an enrolled member of the Crow Tribe and holds interests in 194 trust allotments, totaling 22,854 acres within the boundaries of the Crow Reservation. 13. Plaintiff Lynna Smith is an enrolled member of the Crow Tribe First Amended Class Action Complaint Page 6

7 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 7 of 50 and has a majority interest in Allotment No. 3203, which consists of 720 acres, and Allotment No. 3317B, which consists of 160 acres. 14. Plaintiff Francis Joe White Clay is an enrolled member of the Crow Tribe and holds fractional interests in several allotments on the Crow Reservation. 15. Defendant United States Department of Interior is the federal agency charged with administering the Bureau of Indian Affairs. 16. Defendant Secretary of the Interior Sarah Sally Jewell is the federal official responsible for proper administration of the Bureau of Indian Affairs, and is the principal official responsible for upholding the federal government s fiduciary duties as trustee over tribal and American Indian resources. 17. Defendant Bureau of Indian Affairs is an agency of the United States Department of Interior and is the primary federal agency charged with carrying out the United States trust responsibility to American Indians. 18. Defendant Assistant Secretary of the Interior for Indian Affairs Kevin Washburn is the federal official directly responsible for the administration of the Bureau of Indian Affairs and for upholding the federal government s fiduciary duties and trust obligations with respect to First Amended Class Action Complaint Page 7

8 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 8 of 50 American Indian trust assets. 19. Defendants described in paragraphs 11 through 14 shall be referred collectively to herein as the United States, or the Government. 20. Defendant Montana Water Court Chief Judge Russell McElyea and/ or Associate Water Court Judge Douglas Ritter of the Montana Water Court are currently exercising jurisdiction over the exclusively federal subject matter of this Complaint: whether the Allottees rights have been upheld and protected in the Crow Compact and the Settlement Act. See In the Matter of the Adjudication of Existing and Reserved Rights to the Use of Water, Both Surface and Underground, of the Crow Tribe of Indians of the State of Montana, Case No. WC On July 30, 2014, Chief Judge Russell McElyea issued an Order that reached a final conclusion on issues related to whether the Allottees were adequately represented by the United States and dismissing the Allottees from the case pending before the Montana Water Court. JURISDICTION AND VENUE 21. This suit is for declaratory, due process, injunctive, and mandamus relief. 22. Federal question jurisdiction exists under 28 U.S.C Jurisdiction also exists under the Declaratory Judgment Action, First Amended Class Action Complaint Page 8

9 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 9 of U.S.C Jurisdiction for providing judicial review of federal agency action exists under the Administrative Procedure Act, 5 U.S.C. 701, et seq. 25. Jurisdiction for mandamus relief compelling an officer or agency of the United States to perform a duty owed to Named Plaintiffs exists under 28 U.S.C The Allottees have exhausted all administrative remedies available to them and they have been dismissed from the pending related case before Montana Water Court. 27. Venue is proper in this Court under 28 U.S.C. 1391(e(1(B because a substantial part of the events or omissions giving rise to the claims herein occurred within this judicial district and because a substantial part of the real property that is the subject of this action is situated in this judicial district. CLASS ACTION ALLEGATIONS 28. This class action is brought by Named Plaintiffs, on their own behalf and on behalf of others similarly situated, under F.R.Civ.P Named Plaintiffs represent a class (the Allottee Class or the Class consisting of all persons who have a beneficial interest in Indian trust allotments on the Crow Indian Reservation (the Allotted Land and First Amended Class Action Complaint Page 9

10 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 10 of 50 who have an appurtenant right to water already developed on these lands and/ or an appurtenant right to water for the acreages susceptible to irrigation on their Allotted Lands, as well as sufficient water to ensure a permanent home and abiding place on their lands. Excluded from the Class are Defendants, all local and state governments and their agencies, the Water Judges overseeing the proceedings sought to be enjoined in the Montana Water Court, and any judge overseeing this case. 30. The United States, by waiving and releasing Named Plaintiffs and the Allottee Class s water rights by entering into the Crow Compact and enacting the Crow Tribe Water Rights Settlement Act of 2010, P.L ( Settlement Act, without providing Named Plaintiffs and the Allottee Class with the legal representation to which they are entitled as trust allotment beneficiaries, has violated its fiduciary duty to Named Plaintiffs and Allottees under the Winters Doctrine, the Constitutions of the United States and Montana, its treaties with the Crow Tribe, and the laws of the United States, including the Indian Civil Rights Act and 25 U.S.C An injunction of the complained-of lawsuit pending in the Montana Water Court is necessary to prevent the Montana Water Court, now exercising exclusive jurisdiction over the federal issues underlying whether the Crow Compact has complied with federal law and whether First Amended Class Action Complaint Page 10

11 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 11 of 50 Name Plaintiffs rights were upheld, from permanently and irreversibly denying Named Plaintiffs and Allottees property and reserved water rights. 32. Named Plaintiffs may bring this action as representatives of the Allottee Class because: a. As beneficiary interest holders of trust allotments on the Crow Reservation, they are entitled to independent representation of their interests by the United States government under the Winters Doctrine. The government has failed in its fiduciary duty to provide such representation by waiving and releasing Allottees rights in the Crow Compact and by enacting the Settlement Act. The Montana Water Court s proceedings will adversely affect Named Plaintiffs and the Allottee Class s interests without them having been provided the required representation; b. Named Plaintiffs claims are typical of the claims of the other members of the Allottee Class; and c. Named Plaintiffs will fairly and adequately represent the interests of the Allottee Class. Named Plaintiffs have no interests adverse to the interests of the Class, and counsel selected by Named Plaintiffs are experienced in handling class actions and other complex First Amended Class Action Complaint Page 11

12 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 12 of 50 litigation and will fairly and adequately represent the interests of all Allottees. 33. The Allottees are so numerous that joinder of all is impractical. Although the exact number of Class members is unknown at this time, it is estimated that there are 5,000-6, While common questions of law will predominate in this class action, there are also questions of fact common to the Allottee Class, and those questions predominate over questions affecting any individual Allottees. Common questions of fact include, but are not limited to: a. Whether the United States represented or failed to represent the Allottees rights during negotiations of the Crow Compact; b. Whether the United States failed to represent the Allottees rights in enacting the Settlement Act; c. Whether the United States has failed to represent the Allottees rights in the Montana Water Court proceedings; d. Whether the United States negotiated and concluded the Crow Compact without the participation or informed consent of Named Plaintiffs and the Allottee Class; e. Whether the United States failed to allocate, quantify, or First Amended Class Action Complaint Page 12

13 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 13 of 50 provide a ratable share of Named Plaintiffs or the Allottee Class s individual water rights when negotiating and approving the Crow Compact; f. Whether the United States made any effort to ensure that any Named Plaintiffs or Allottees would receive enough water to irrigate all practically irrigable acreage within the Allotted Land and to have a permanent home and abiding place, as is their right; g. Whether the United States provided Named Plaintiffs and the Allotted Class with legal representation; h. Whether the United States provided Named Plaintiffs and the Allotted Class with independent legal representation; i. Whether the United States failed to ensure that Named Plaintiffs and the Allotted Class received due process in the Compact negotiations; approval of the Settlement Act; and, before the Montana Water Court; j. Whether the United States violated its trust duties to Named Plaintiffs and the Allotted Class. 35. There are questions of law common to the Allottee Class, and those questions predominate over questions affecting any individual Allottees. Common questions of law include, but are not limited to: First Amended Class Action Complaint Page 13

14 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 14 of 50 a. Whether the United States has an obligation to provide independent legal representation for the Named Plaintiffs and the Allotted Class during negotiations of the Crow Compact; b. Whether the United States had an obligation to provide independent legal representation for the Named Plaintiffs and the Allotted Class during ratification of the Settlement Act; c. Whether the United States has an obligation to provide independent legal representation for the Named Plaintiffs and the Allotted Class during proceedings before the Montana Water Court; d. Whether the United States violated its trust duties to Named Plaintiffs and the Allotted Class. e. The nature and extent of the Named Plaintiffs and Allotted Class s Winters Doctrine water rights on the Allotted Lands; f. Whether the Named Plaintiffs and Allotted Class must give their informed consent to the Crow Compact before any waiver of their rights can be effectuated; g. The nature and extent of the Named Plaintiffs and the Allotted Class s due process rights related to the negotiations of the Crow Compact, the ratification of the Settlement Act, and the proceedings before the Montana Water Court; First Amended Class Action Complaint Page 14

15 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 15 of This case presents an actual controversy within this Court s jurisdiction and there is an important need for this Court to declare the rights and other legal relations among the parties interested in the matters herein. The Uniform Declaratory Judgment Act accords courts the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. The Act is remedial and it is to be liberally construed and administered to permit courts to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. 37. Named Plaintiffs, on behalf of themselves and all similarly situated Allottees, respectfully request that this Court enter a judgment declaring the following: a. All water on the Crow Reservation was reserved for the Tribe and Allottees pursuant to the Winters Doctrine; b. Federal law governs ownership and use of all waters on the Crow Reservation; c. The priority date for the Crow Tribe s, Named Plaintiffs, and Allottees water rights should be September 17, 1851; d. As a matter of law, an Allottee is entitled to a ratable share of the reserved water right, which is a just and equal distribution of water; First Amended Class Action Complaint Page 15

16 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 16 of 50 e. As a matter of law, an Allottee does not lose entitlement to use water due to non-use; f. As a matter of law, when tribal land is allotted, the Allottees succeed to the tribe s Winters rights for that land; g. As a matter of law, an Allottee has a right to use of water for all practicably irrigable acreage within their Allotment; h. As a matter of law, an Allottee has a right to the use of water for all historic and cultural uses, including uses that may be domestic, for stock, and hunting and fishing purposes, appurtenant to their allotted lands; i. As a matter of law, an Allottee has a right to the amount of water needed to provide a permanent home and abiding place on their lands; j. Whether, as trustee and under its treaties with the Crow Tribe and the Indian Winters Doctrine, the United States owes Named Plaintiffs and the Allottee Class a fiduciary duty in representing Named Plaintiffs and the Allottee Class s interests in water rights appurtenant to the Allotted Land; k. Whether the United States violated such fiduciary duty, if owed, to Named Plaintiffs and the Allottee Class; First Amended Class Action Complaint Page 16

17 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 17 of 50 l. Whether the United States violated its duty to provide Named Plaintiffs and the Allottee Class legal representation of their interests in water rights appurtenant to the Allotted Land under 25 U.S.C. 175; m. Whether the United States owes Named Plaintiffs and the Allottee Class a fiduciary duty to provide independent legal representation if representation of Named Plaintiffs and the Allottee Class s interests by the United States would conflict with the United States own interests or its representation of the Crow Tribe s interests; n. Whether the United States violated Named Plaintiffs and the Allottee Class s rights to due process under the United States or Montana Constitutions by waiving and releasing, without consent and over objections, Named Plaintiffs and the Allottee Class s rights to water rights appurtenant to the Allotted Land in negotiating the Crow Compact and enacting the Settlement Act; o. Whether the United States must pay reasonable attorneys fees for undersigned counsel s independent legal representation of Named Plaintiffs and the Allottee Class s reserved water rights in lieu of the United States providing such representation, as it was required First Amended Class Action Complaint Page 17

18 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 18 of 50 to do as trustee and under 25 U.S.C. 175; p. Whether an injunction of the Water Court Case is necessary to prevent serious and irreparable harm to Named Plaintiffs and the Allottee Class s reserved water rights. 38. The prosecution of separate actions by individual Allottees would create the risk of inconsistent or varying adjudications with respect to individual Allottees, which would establish incompatible standards of conduct for the United States, and which would, as a practical matter, be dispositive of the interests of the Allottees not parties to those adjudications, substantially impairing or impeding their ability to protect their interests. 39. The United States and the Montana Water Court have acted on grounds generally applicable to the Class, thereby making appropriate declaratory and injunctive relief with respect to the Class as a whole. 40. Named Plaintiffs maintain a class action because questions of fact and law common to Class members predominate over any questions affecting only individual Class members, and a class action is a superior method for the fair and efficient adjudication of the controversy. A class action is superior to other available methods because: a. Named Plaintiffs and the Allottee Class do not seek in this First Amended Class Action Complaint Page 18

19 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 19 of 50 action to determine or quantify the volume of any individual water rights of the Allottees or of any person or legal entity who may assert a claim to water rights on or off the Crow Indian Reservation; b. The expense and burden of individual litigation would effectively make it impracticable for individual Allottees to seek redress for the wrongs alleged in this Complaint; c. This action will foster an orderly and expeditious resolution of this dispute, including economies of time, effort, and expense, and uniformity of decision; d. Failure to permit this matter to proceed as a class action would be contrary to the public policy encouraging the economies of judicial, attorney, and litigant time and resources; and e. Public policy and judicial precedent favor class actions for the purpose of, inter alia, providing judicial relief for small, individual claims with a common basis. FACTS 41. The United States Congress ratified the Crow Compact in 2010 by passing the Crow Tribe Water Rights Settlement Act of 2010 ( Settlement Act. Pub. L. No , 124 Stat (December 8, President Barack Obama signed the Settlement Act on December 8, First Amended Class Action Complaint Page 19

20 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 20 of The Crow Tribe is a federally-recognized American Indian tribe located on the Crow Indian Reservation ( Crow Reservation in southeastern Montana. 43. The United States initially entered into three treaties with the Crow Tribe over a period of 43 years. 44. The first, Treaty with the Crow Tribe of 1825, asserted the United States right to regulate all trade and intercourse with the Crow Tribe; this treaty did not prescribe boundaries for Crow tribal territory. 45. The second, Treaty of Fort Laramie with Sioux, Etc. of 1851, was a treaty between the United States and several Indian nations, including the Crow Tribe. The Article 5 of the 1851 treaty established reservation of territories of the several Indian nations who were part of the treaty, including an area of approximately 38.5 million acres for the Crow Tribe. Article 5 of the 1851 treaty further protected the Indian nations rights to hunt and fish on, and travel over any of the land not included in their respective prescribed territories. 46. The third, also known as the Treaty of Fort Laramie, but concluded in 1868, was a further treaty between the United States and Crow Tribe. The 1868 treaty reduced the Crow Tribe s reserved territorial boundaries even further, to approximately 8 million acres. First Amended Class Action Complaint Page 20

21 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 21 of In 1891, via an act of Congress, the Crow Tribe ceded two million acres of land to the federal government, which paid the Tribe $940, Crow tribal members were permitted to hold trust allotments on the ceded portion that were issued pursuant to the 1887 Dawes Severalty Act, 24 Stat. 388, codified at 25 U.S.C , also known as the 1887 General Allotment Act or Dawes Act. 49. In 1904, the federal government reduced the size of the Crow Reservation to 2.3 million acres, its present size. 50. The 1920 Crow Allotment Act, 41 Stat. 751 (June 4, 1920 allocated Crow Reservation lands to enrolled members of the Crow Tribe as individual trust allotments, with the legal title held in trust by the United States. Tribal members were issued trust patents, unless they elected in writing to have them patented in fee. 51. As the holder of title in trust for the benefit of individual allottees, the United States has a fiduciary responsibility to protect and assert Indian Winters Doctrine reserved water rights appurtenant to allotments held in trust by the United States. If the United States has a conflict of interest in its trust duties, it is obligated to ensure that the trust beneficiaries in this case, the Allottees have independent legal counsel. First Amended Class Action Complaint Page 21

22 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 22 of Although Indian Winters Doctrine reserved water rights appurtenant to trust allotments have been the subject of water rights adjudication proceedings and settlement negotiations since 1975, and the Allottees lack the financial resources required to retain counsel to protect and assert their water rights, the United States has never provided legal counsel to represent the Allottees as required by 25 U.S.C. 175 ( In all States and Territories where there are reservations or allotted Indians the United States attorney shall represent them in all suits at law and in equity. 53. The Allottees seek a declaration that the Crow Compact and/or the Settlement Act do not comply with Allottees rights pursuant to the treaties, Constitution, and laws of the United States. 54. The reason the Allottees seek to enjoin the Montana Water Court proceedings (Cause No. WC is that the United States and the Crow Tribe are attempting to complete the Crow Compact process prior to this Court determining whether Allottees rights have been violated pursuant to federal law. 55. If the Crow Compact is finalized in the Montana water rights adjudication process, Allottees property, due process, and other rights will be irreversibly violated. First Amended Class Action Complaint Page 22

23 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 23 of The Allottees do not seek in this case to quantify a volume of any water rights of the Allottees or any person or legal entity who may assert a claim to water rights on or off the Crow Indian Reservation. 57. The United States Supreme Court has concluded that state courts have a solemn obligation to follow federal law when adjudicating the pervasive reserved water of allottees and Tribes. San Carlos Apache Tribe v. Arizona, 463 U.S. 545, 571 ( The Allottees have water rights for all practically irrigable acreage ( PIA on their allotted lands, whether they have historically irrigated all of that acreage or not. Arizona v. California, 373 U.S. 546 (1963; see also Colville Confederated Tribes v. Walton, 647 F.2d 42, 47 (9th Cir ( Walton II. 59. Further, the Allottees have water rights sufficient to sustain traditional hunting, fishing, and ceremonial practices and to ensure a permanent home and abiding place on their lands. In re Gila River, 35 P.3d 68 (Ariz When the Crow Reservation was created, an implied reservation of water rights for within the exterior boundaries of the reservation was also reserved. These rights should carry a priority date of September 17, 1851 and are not subject to abandonment. Winters v. U.S., 207 U.S. 564 First Amended Class Action Complaint Page 23

24 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 24 of 50 (1908 and Arizona v. California, 373 U.S. 546 ( The United States Supreme Court has concluded: a. That water is essential to Allottees ability to productively irrigate their land; b. That the 1851 and 1868 Fort Laramie Treaties contemplated ultimate settlement by individual Indians upon designated tracts where they could make homes with exclusive right of cultivation for their support and with expectation of ultimate land ownership; c. That the Secretary of Interior has the authority to prescribe rules and regulations deemed necessary to secure just and equal distribution of water among Indian residents on the reservation; d. That lands outside the Crow Irrigation District are entitled to an equal and just distribution of water; e. That patented lands maintain their Winters rights. United States v. Powers, 305 U.S. 517 ( The Ninth Circuit has clarified that there are three key aspects of the Allottees reserved water rights: a. Allottees are entitled to a ratable share of the Tribe s First Amended Class Action Complaint Page 24

25 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 25 of 50 reserved water right; b. Allottees have a priority date which is the same as the Tribe s; c. Allottees do not lose their share of the tribal water right through non-use. Walton II, 647 F.2d 42 (9 th Cir The Montana Supreme Court has declared that state courts have a solemn obligation to follow federal law when adjudicating Indian reserved water rights. State ex rel. Greely v. Confederated Salish and Kootenai Tribes, 219 Mont. 76, 98, 712 P.2d 754, 768 ( The Allottees seek this declaration of their legal rights to frame the federal law under which the Crow Compact will be adjudicated and quantified in a proper general inter sese water rights adjudication under the Montana Water Use Act that satisfies the McCarran Amendment, 43 U.S.C Pursuant to the 1887 Dawes Severalty Act, 24 Stat. 338, and the Crow Allotment Act of 1920, 41 Stat. 751 (June 4, 1920, the United States Congress authorized the conveyance of tribal trust lands on the Crow Reservation in Montana to tribal members as individual trust allotments. 66. The priority date of Indian Winters Doctrine reserved water First Amended Class Action Complaint Page 25

26 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 26 of 50 rights appurtenant to allotments on the Crow Reservation is no later than September 17, 1851, the date of the 1851 Treaty of Fort Laramie. 67. The Crow Tribe, the United States, and the State of Montana negotiated the Crow Compact over a period of nearly thirty years. 68. The Crow Compact was ratified in 1999 by the Montana Legislature, and amended in Mont. Code Ann , et seq. 69. The Crow Compact creates different priority dates for Allottees other than the Tribe s priority date. 70. Pursuant to the Crow Compact, Allottees who have used water prior to 1999 outside of the Crow Irrigation Project have rights that are not quantified and are not defined by location or type of use. 71. Pursuant to the Crow Compact, Allottees who have put water to use outside of the Crow Irrigation Project will have rights that will be junior in priority to pre-1999 state-based water rights (recognized under Montana law and the pre-1999 uses of the Crow Tribe s water right. 72. Pursuant to Sec. 410(a(2 of the Settlement Act, upon the publication by the Secretary pursuant to Sec. 410(e of the Act of a notice in the Federal Register that all requirements have been met and establishing the enforceability date of the Crow water rights settlement, the United States will have waived all claims for water rights within the Crow First Amended Class Action Complaint Page 26

27 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 27 of 50 Reservation and the ceded strip that the United States, acting as trustee for the Allottees, asserted, or could have asserted, in any proceeding, including the State of Montana stream adjudication, prior to and including the enforceability date, except to the extent that such rights are recognized in the Crow Compact and the Settlements Act. 73. The Secretary, as trustee, executed a document purporting to waive and release all claims for Indian Winters Doctrine reserved water rights appurtenant to trust allotments on April 27, 2012 ( Waiver and Release of Claims by the United States Acting in its Capacity as Trustee for Allottees, which will become effective on the enforceability date. 74. Section 407 of the Settlement Act provides that it is the intent of Congress to provide that each allottee benefits that are equivalent to or exceeds the benefits allottees possess as of the date of enactment of this Act. 75. On May 24, 2012, the Crow Tribe passed LR No protesting the Secretary of Interior s waiver of the Allottees water rights. 76. On October 24, 2012, the United States, State of Montana and Crow Tribe moved the Montana Water Court to issue a Final Decree of the Crow Tribe s Water right 77. The Crow Compact is pending before the Montana Water Court First Amended Class Action Complaint Page 27

28 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 28 of 50 for entry of a final decree confirming the Crow Tribe s water rights recognized by the state of Montana. The Montana Water Court issued a Notice of Entry of the Crow Tribe Compact Preliminary Decree and Notice of Availability on January 9, Case No. WC The Preliminary Decree issued by the Montana Water Court failed to set forth a list of existing uses ( Current Use List of the Crow tribal water right, as required by the Crow Compact at Article IV.E The Current Use List is to list all current uses of the Tribal Water Right, including uses by Tribal members, existing as of the date this Compact has been ratified by the Montana Legislature. Article IV.E.2, Crow Compact (emphasis added. 80. Shortly after the Montana Water Court issued the Preliminary Decree, the United States, State of Montana, and the Crow Tribe entered into a Process Agreement for finalizing the Current Use List of the Crow tribal water right. This is the same list of current uses that was supposed to be incorporated into the Crow Compact, pursuant to Article IV.E.2, and incorporated by the Water Court in its Preliminary Decree. 81. Neither the Crow Compact nor the Settlement Act provide any authorization or precedent for the Process Agreement. 82. On June 24, 2013, the Water Court s objection period to the First Amended Class Action Complaint Page 28

29 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 29 of 50 Crow Compact closed. 83. Sometime in mid- to late July 2013, but by no later than July 25, 2013, public notice was to have been issued by the United States that the Current Use List was available for review and objection by Crow tribal members, including the Allottees. 84. The Process Agreement set forth the terms by which public notice of the Current Use List was to be accomplished. It is unclear if the United States, State of Montana or Crow Tribe adhered to the Process Agreement regarding public notice, especially to the Allottees. 85. The review and objection period to the Current Use List closed on January 21, 2014, nearly seven months after the Water Court s objection period closed on the Crow Compact, of which the Current Use List was allegedly incorporated, though the Current Use List had not been provided to the Allottees prior to the closing of the Water Court s objection deadline. 86. Further, the Current Use List was not publicly available until late July of 2013 (if it was in fact made publicly available at all. This was fully fourteen months after the Secretary of Interior waived all Allottee water rights, though the nature and extent of those rights was unknown to the Secretary of the Interior, the United States, the Crow Tribe, the State of Montana, the Montana Water Court, and the Allottees. First Amended Class Action Complaint Page 29

30 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 30 of Allottees seek to enjoin the Water Court from issuing a final decree prior to the determination of the Allottees rights pursuant to federal law. 88. Once the Water Court enters its final decree, Montana will recognize all Indian trust water rights within the Crow Reservation as belonging exclusively to the Crow Tribe. It will not recognize any water rights as belonging to individual Allottees. 89. Once the Water Court enters its final decree, Allottees real property rights in the Indian Winters Doctrine reserved water rights appurtenant to trust allotments will be extinguished and expropriated for the benefit of the state of Montana, non-indian water users with priority dates later than 1851, and the Crow Tribe. 90. Upon information and belief, the market value of these water rights exceeds an estimated $1 billion. 91. The Crow Compact and Settlement Act obligate the Secretary of the Interior to administer and enforce the tribal water right. 92. The Crow Compact closes several basins to further appropriation after the Crow Compact is ratified, with one exception. The Montana Department of Natural Resources and Conservation ( DNRC may issue certificates of water rights or permits for use on fee land for First Amended Class Action Complaint Page 30

31 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 31 of 50 appropriations of groundwater via a well or developed spring with a maximum appropriation of 35 gallons per minute or less, not to exceed 10 acre-feet per year unless the appropriation is a combined appropriation from the same source from two or more wells or developed springs exceeding the limitation. This exception mirrors the language of Montana s exempt well statute, M.C.A (3(a(iii. 93. The DNRC has interpreted the phrase combined appropriation to mean only appropriations that are physically manifold into the same system. A.R.M (13. In other words, individual wells, no matter the number, are allowed, regardless of the total quantity of water they produce, as long as they are not physically manifold. The practical effect of this provision is to allow unlimited individual exempt wells to appropriate groundwater, even in a closed basin. 94. Throughout the long history of the adjudication of Indian Winters Doctrine reserved water rights appurtenant to allotments, and the negotiation of this Crow Compact, the United States has told the Allottees that their interests were fully and adequately represented by the United States. 95. On November 16, 2009, the Crow Allottees Association sent a letter to the Assistant Secretary of Indian Affairs Larry Echo Hawk, stating: First Amended Class Action Complaint Page 31

32 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 32 of 50 As you are no doubt aware, the Crow Tribal allottees of land on the Crow Reservation have a well established legal water right that is distinguishable and mutually exclusive to that of the Tribal water right.... CAA allottees have an individual right to be represented in the negotiation of a water settlement agreement which seeks to include Crow Tribal member allottees. CAA and its members do not wish to be represented by the Tribal Administration in connection with water quantification, allocation, and the negotiation of allottees water rights. (Emphasis in original. The Regional Director of the Bureau of Indian Affairs (BIA for the Rocky Mountain Region (in which the Crow Tribe is situated has stated that the BIA has a trust responsibility over the natural resources of the tribes within this region. It has been our experience the BIA will neither aid nor assist CAA members in negotiations on the Crow Water Rights Settlement Act of CAA s memberships water rights represents millions of dollars. Most CAA members are in forma pauperis. CAA requests that the Secretary of Interior provide CAA with adequate funds for CAA and or its individual members to employ a water rights lawyer of their choice, because the BIA has a conflict of interest in representing the federal government s water rights while simultaneously living up to its fiduciary responsibilities to Crow Tribal members claiming water rights. See Exhibit A, attached, November 16, 2009 letter from Crow Allottees Association to Larry Echohawk, Assistant Secretary of the Interior, Bureau of Indian Affairs. 96. On February 5, 2010, Alletta Belin, Counselor to the Deputy Secretary, responded to the Crow Allottee Association s letter and stated: Your letter raises a number of difficult questions. At the outset, it is important to explain that the Department is aware of the unique right of allottees and how those rights might be impacted by the Compact entered into by the Crow Tribe and the State of Montana pending legislation before Congress to approve and ratify the Compact. The Department intends to continue working with Congress and the Tribe First Amended Class Action Complaint Page 32

33 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 33 of 50 to ensure that allottee interests are appropriately addressed in any legislation approving the Compact. The role to be played by individual allottees or allottee associations in settlement negotiations is complicated. I have been informed that there are thousands of allottees holding interests in trust lands on the Crow Reservation. Obviously, negotiating with this many people is a practical impossibility. See Exhibit B, February 5, 2010 letter from Alletta Belin, Counselor to the Deputy Secretary, to the Crow Allottees Association. 97. The Director of Indian Affairs has the discretion and right to appoint independent legal representation for Indians when a conflict of interest exists that would impinge upon the United States fiduciary obligations to those Indians. 25 U.S.C. 2; State of New Mexico v. Aamodt, 537 F.2d 1102, 1107 (10 th Cir Approximately 94% of the Crow Reservation was allotted pursuant to the 1887 Dawes Act and the 1920 Crow Allottment Act. As a result of sales, approximately 35% of the Crow Reservation consists of fee lands held primarily by non-indians. Allottees continue to hold 45% of the Crow Reservation as trust allotments, and the Crow Tribe holds only 20% of the Crow Reservation as tribal trust lands. 99. The United States has never provided the technical assistance to the Allottees required to determine the full extent of their Indian Winters First Amended Class Action Complaint Page 33

34 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 34 of 50 Doctrine reserved water rights based upon PIA as required for their participation in the ongoing water rights adjudication and settlement negotiations In spite of the lack of a tribal water court or tribal water right system, and in spite of the fact that the Allottees have beneficial interests in far more land on the Crow Reservation than does the Tribe, the Crow Compact allocates all of the reserved water rights on the Crow Indian Reservation to the Crow Tribe The Crow Compact does not allocate any water rights to the Allottees The Crow Compact neither requires nor provides for a tribal water code that recognizes and protects individual water right interests held by the Allottees The federal government has a fiduciary responsibility to individual Allottees for the protection of their allotments held in trust by the United States If the United States has a conflict of interest in its trust duties, it is obligated to ensure that the trust beneficiaries in this case the Allottees have independent legal counsel. // First Amended Class Action Complaint Page 34

35 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 35 of 50 COUNT I DECLARATORY JUDGMENT 105. Named Plaintiffs reallege and incorporate all prior allegations This case presents an actual controversy within this Court s jurisdiction and there is an important need for this Court to declare the rights and other legal relations among the parties interested in the matters herein. The Uniform Declaratory Judgment Act accords courts the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. The Act is remedial and it is to be liberally construed and administered to permit courts to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations Named Plaintiffs, on behalf of themselves and all similarly situated Allottees, respectfully request that this Court enter a judgment declaring the following: a. All water on the Crow Reservation was reserved for the Tribe and Allottees pursuant to the Winters Doctrine. b. Federal law governs ownership and use of all waters on the Crow Reservation. c. The priority date for the Crow Tribe s, Named Plaintiffs, and Allottees water rights should be September 17, 1851, pursuant to the first Fort Laramie Treaty of 1851, establishing a reserved First Amended Class Action Complaint Page 35

36 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 36 of 50 homeland for the Crow Indians. d. As a matter of law, an Allottee is entitled to a ratable share of the reserved water right, which is a just an equal distribution of water. e. As a matter of law, an Allottee is entitled to a priority date of 1851 for all legal uses of water pursuant to the Winters Doctrine. f. As a matter of law, an Allottee does not lose entitlement to use water due to non-use. g. As a matter of law, an Allottee has a right to use of water for all practicably irrigable acreage within their Allotment. h. As a matter of law, an Allottee has a right to the use of water for all domestic, stock uses, and hunting and fishing purposes appurtenant to their allotted lands. i. As a matter of law, an Allottee has a right to the amount of water necessary to ensure a permanent home and abiding place on their lands. COUNT II VIOLATION OF THE UNITED STATES FIDUCIARY DUTY TO NAMED PLAINTIFFS AND THE INDIAN ALLOTTEES, INCLUDING THE DUTY TO PROVIDE COUNSEL TO NAMED PLAINTIFFS AND THE ALLOTTEES 108. Named Plaintiffs reallege and incorporate all prior allegations. First Amended Class Action Complaint Page 36

37 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 37 of The United States holds Indian Winters Doctrine reserved water rights appurtenant to trust allotments for the benefit of all allottees including the Allottees in this case. As trustee, the United States has a fiduciary duty to the Allottees to protect their property rights The United States negotiated and concluded the Crow Compact without the participation or informed consent of the Allottees The United States, acting as trustee for the Allottees, failed to protect, allocate, quantify or provide a ratable share of Allottees individual water rights when negotiating and approving the Crow Compact. It failed to protect and assert Allottees trust water rights by not requiring actual adjudication of Allottees Winters water rights Further, the United States failed to communicate with the Allottees and failed to get their participation or consent during the course of the Crow Compact negotiations and Settlement Act ratification Also, the United States failed to protect Allottees reserved water rights or ensure that Allottees will receive a ratable share of water in a Crow tribal water system The United States failed to protect individual Allottees Winters water rights from depletion by allowing Montana Department of Natural Resource Conservation s definition of combined appropriations into the First Amended Class Action Complaint Page 37

38 Case 1:14-cv SPW Document 3 Filed 09/11/14 Page 38 of 50 Crow Compact The United States failed to ensure that the Allottees had the same priority date for all uses of their water consistent with the Crow Tribe s Winters right priority date The United States failed to ensure that the Allottees received enough water to irrigate all practicably irrigable acreage within their Allotment The United States failed to ensure that the Allottees received enough water for each Allottee to have a permanent home and abiding place on their lands Section 410(a(2 of the Settlement Act provides that the Allottees waive and release any claims they might have against the United States as trustee in return for recognition of the water rights of the Tribe This release of the Allottees claims in return for recognition of Tribe s water rights not the Allottees water rights fails as a matter of contract law. The Allottees are giving up a valuable right and are receiving no consideration in return The Allottees were not informed of their abdication of water rights or waiver of rights against the United States until after the fact The United States failure to protect the Allottees individual First Amended Class Action Complaint Page 38

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