OPINION AND ORDER OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MONTANA IN THE YELLOWTAIL DAM SITE CASE, TOGETHER WITH CERTAIN OTHER MATERIALS PERTINENT TO S. J. RES. 12, 85TH CONGRESS, NOW IN CONFERENCE

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

United States of America, Plaintiff, vs. 5,677.94 acres of land, more of less, of the Crow Reservation, State of Montana; The Crow Tribe of Indians of Montana; William A. Wall, Chairman, James Real Bird, Vice Chairman, and Phillip Beaumont, Secretary, Crow Tribal Council, et al., and unknown owners, Defendants

Civil No. 1825

ORDER

For the reasons set forth in Opinion filed with this Order IT IS HEREBY ORDERED that the issue of whether the Big Horn River is a navigable or nonnavigable stream should be determined by the Court, and this issue is hereby set for trial before the Court in the Court Room in the United States Post Office Building, at Billings, Montana, on Tuesday, July 8th, at 10:00 o'clock A. M. Counsel are requested to serve and file trial memoranda on this issue not less than ten (10) days before the date of trial.

For the reasons set forth in Opinion filed with this Order IT IS FURTHER ORDERED that the issue of just compensation is hereby referred to three commissioners to be hereafter appointed by the Court, and they shall have the power and authority to hear and determine the issues herein as provided in Rule 71A and Rule 53 of the Rules of Civil Procedure for the District Courts of the United States.

IT IS FURTHER ORDERED that on or before June 16, 1958, each side shall serve and file a list of not less than four nor more than six names of persons proposed for appointment as commissioners, with a biographical sketch of each person recommended for appointment.

IT IS FURTHER ORDERED that on or before June 16, 1958, plaintiff shall serve and file a set of proposed instructions to be given the commissioners by the Court, together with a memorandum of authorities with respect to the elements of damage which should be considered in determining just compensation for waterpower value of the lands sought to be condemned, and any other elements of value to be considered; and that within 15 days thereafter defendants shall serve

and file any objections to said proposed instructions and proposed amendments and additions thereto, together with a memorandum of authorities on the elements of damage and value as hereinabove set forth.

IT IS FURTHER ORDERED that immediately after completion of the trial of the issue of navigability, a pretrial conference will be held to consider (a) appointment of commissioners, and (b) instructions to commissioners.

Done and dated this 15th day of May 1958.

W. J. JAMESON, United States District Judge.

IN THE DISTRICT COURT OF THE UNITED STATES
For the DISTRICT OF MONTANA

BILLINGS DIVISION

United States of America, Plaintiff, vs. 5,677.94 acres of land, more or less, of the Crow Reservation, State of Montana; The Crow Tribe of Indians of Montana; William A. Wall, Chairman, James Real Bird, Vice Chairman, and Phillip Beaumont, Secretary, Crow Tribal Council, et al., and unknown owners, Defendants

Civil No. 1825

OPINION

This opinion will consider (1) whether the United States has authority to condemn tribal lands of the Crow Tribe of Indians for the construction of Yellowtail Dam (presented by renewal of defendant's motion to dismiss); (2) whether waterpower value should be allowed in determining just compensation; (3) whether the issue of just compensation should be tried before a jury or commissioners (presented by plaintiff's demand for a jury trial); and (4) whether the question of the navigability of the Big Horn River should be determined by the court.

AUTHORITY OF UNITED STATES TO CONDEMN TRIBAL LANDS

Defendants' motion to dismiss was denied by the Honorable Charles W. Pray on January 8, 1957. Judge Pray's opinion is reported in 152 F. Supp. 861. While his decision is not res judicata, under the rule of comity it should be followed except "for the most cogent reasons". Plattner Implement Co. v. International Harvester Co., 8 Cir. 1904, 133 F. 378. After reviewing the authorities cited in the able briefs filed by counsel for both parties and, in particular, the cases decided subsequent to Judge Pray's opinion, I reach the same conclusion as Judge Pray, i. e., that the United States has the right to condemn the property in question and that the motion to dismiss should be denied. On this question this opinion is supplemental to Judge Pray's opinion of January 8, 1957.

Defendants rely upon the treaties between the United States and the Crow Tribe of Indians and particularly the provisions_of_the treaty of May 7th, 1868, confirming the aboriginal title of the Indians

and providing that certain lands of the Crow Indians were set aside for their absolute and undisturbed use and occupation. It is clear, and defendants do not contend otherwise, that the power of eminent domain may be exercised ever Indian tribal lands regardless of treaty provisions. Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641, 34 L. Ed. 295, 10 S. Ct. 965.2 The question is whether there is sufficient authorization-general or specific-for the condemnation of the particular tribal lands in question. In other words, are the statutary enactments subsequent to the execution and reaffirmation of the treaties with the Crow Tribe sufficient to manifest an intention of Congress to override the effect of those treaties and permit this condemnation?

While general acts of Congress do not apply to Indians unless so expressed as to clearly manifest an intention to include them (Elk v. Wilkens, 112 U. S. 94, 28 L. Ed. 643, 5 S. Ct. 41), general legislation is sufficient to override the provisions of an Indian treaty where the intention of Congress to do so is clear.3

Section 9 (c) of the Flood Control Act of December 22, 1944 (58 Stat. 887), directed that the reclamation and power developments of the Missouri River Basin project, which includes Yellowtail Dam, be governed by the Federal Reclamation Laws, i. e., Act of June 17, 1902, and Acts amendatory thereof or supplementary thereto (32 Stat. 388, 43 U. S. C. A. sec. 371 et seq.). The continued prosecution of the Missouri River Basin project was reaffirmed in the Acts of July 24, 1946 (60 Stat. 641, 653), and of May 17, 1930 (60 Stat. 163, 184). The Reclamation Act was construed in Henkel v. United States, 237 U. S. 43, 59 L. Ed. 831, 35 S. Ct. 536, where it was held that reclamation projects under the Reclamation Act "must necessarily include much territory which is included in Indian reservations", and the court could not doubt in view of the broad authority conferred by the Act that it "was the purpose of Congress to give the Secretary of the Interior the right to acquire" such lands, when necessary for reclamation, either by purchase or by condemnation. Basic authority for condemnation is also contained in the general condemnation act of August 1, 1888 (25 Stat. 357, 40 U. S. Č. A. sec. 257). See Judge Pray's opinion and cases there cited (152 F. Supp. at 863).

Moreover, "the statutory authorization to procure real estate may be evidenced by the making of an appropriation as well as by a specific authorization to acquire". Polson Logging Co. v. United States, 9 Cir. 1947, 160 F. 2d 712, 714. See also Judge Pray's opinion and cases therein cited. Subsequent to the authorization legislation, Congress appropriated for preconstruction work on Yellowtail Dam for five consecutive years-1947 (60 Stat. 348, 368), 1948 (61 Stat. 460, 478), 1949 (62 Stat. 1112, 1129), 1950 (63 Stat. 765, 789), and 1951 (64 Stat. 595, 686). Under a general appropriation bill (Public Works Appropriation Act, 1956, 69 Stat. 354, 357) Congress appropriated $4,000,000 for initiation of construction work on Hardin unit (Yellowtail Dam).

1 See Fort Laramie Treaty of September 17th, 1851 (11 Stat. 79, Vol. II, Kappler, Indian Affairs, Law and Treaties. p. 594) and the Treaty of May 7th, 1868 (15 Stat. 649: Vol. II, Kappler, p. 1008).

See also Lone Wolf v. Hitchcock, 187 U. S. 553, 47 L. Ed. 299, 23 S. Ct. 216; Henkel v. United States, 237 U. S. 43, 59 L. Ed. 831, 35 S. Ct. 536; United States v. Carmack, 329 U. S. 230, 91 L. Ed. 209, 67 S. Ct. 252; and The Seneca Nation of Indians v. Wilber M. Brucker, Secretary of the Army, et al., D. C., Civil No. 2202-57, decided March 24, 1958.

See Spalding v. Chandler, 160 U. S. 394, 40 L. Ed. 469, 16 S. Ct. 360; Cherokee Nation v. Hitchcock, 187 U. S. 294, 47 L. Ed. 183, 23 S. Ct. 115, The Seneca Nation of Indians v. Wilber M. Brucker, etc., supra.

The authorization and appropriation measures and committee reports relating thereto lead inescapably to the conclusion that Congress knew and intended that tribal lands of the Crow Tribe of Indians would be required in the construction of Yellowtail Dam.

Two cases have been decided by other courts subsequent to Judge Pray's decision. In The Seneca Nation of Indians v. Wilber H. Brucker, Secretary of the Army, et al., Civil No. 2202-57, D. C. D. C. decided March 24, 1958, the Indian tribe contended that "general acts of Congress do not affect Indian Treaty rights" and that "ther (general acts of Congress) do not nullify previous special acts whether in the form of legislative enactments or treaties." The Court said: "A review of the authorities indicates that the test is not whether the Congress has acted by general legislation or special acts, but whether, whatever the form of the legislation, Congress has manifested an intention to include Indian treaty rights in the legislation." It was held in that case that an appropriation act of Congress earmarking one million dollars for the construction of the project for which the Indian land was sought to be condemned "manifested a clear Congressional intention to authorize the construction of the project."4

In the other recent case-United States v. 9005.32, acres of land, more or less, situate in Corson County, South Dakota, and Sioux Indians of Standing Rock Reservation, et al., Civil No. 722, N. D., decided March 10, 1958-the District Court of the Northern District of South Dakota recognized the authority of Congress to exercise the right of eminent domain over Indian tribal lands, but held that Congress had not exercised its authority in that case and granted the defendant's motion to dismiss. The project in that case was prosecuted by the War Department pursuant to section 9 (a) of the Flood Control Act of 1944 and prior enactments and not by the Department of the Interior pursuant to the Reclamation Act of 1902 as amended. While the case is also distinguishable in some other respects (and was distinguished from Judge Pray's prior opinion by the court there) it does support defendants' position here.

Defendants contend further that there are three specific statutory prohibitions against the Government's right to condemn; (1) the Crow Allotment Act of 1920 (41 Stat. 751) which provides in section 8 that "no additional irrigation system shall be established or constructed by the government for the irrigation of Indian lands on the Crow Reservation until the consent of the tribal council thereunto has been duly obtained"; (2) the 1926 Amendment (44 Stat. 658) which prohibited an irrigation system "unless and until" the Crow Tribe consented; and (3) the 1946 Act on Crow Matters (60 Stat. 333) which provided in section 9: "No further construction work on the Crow Indian Reservation shall be undertaken by the United States without the prior consent of (1) the Crow Tribe, **The consent of the Crow Tribe shall be obtained by a majority vote of the general council of the tribe expressed at a duly convened meeting."

*

Is Yellowtail Dam "an additional irrigation system" within the meaning of the Crow Allotment Act of 1920? In my opinion this

In a companion case, United States of America v. 21,250 acres of land, more or less, situate in Cattaraugus County, State of New York, The Seneca Nation of Indians, et al., D. C. W. D. N. Y., Civil No. 7278, decided January 11, 1957, the court had entered an order for the surrender of possession, pursuant to the provisions of 40 U. S. C. A. sec. 258a. The defendants moved the court to vacate the order for delivery of possession on the ground that the tribal lands of the Seneca Nation were not subject to condemnation. The court denied the motion, holding that the "power of eminent domain extends to Indian tribal lands, as it does to all lands privately owned within the United States."

question must be answered in the negative. Yellowtail Dam is a multipurpose project to impound waters for flood and silt control and power generation, as well as irrigation. It is a part of a comprehensive plan for the development of the Missouri River Basin for the benefit of the public and payment therefor will not be a charge against any tribal funds. It is not an irrigation system or additional irrigation system for the benefit of the Crow Indian land for which payment would be made from tribal funds.

With respect to the 1946 Act, the title and history of the Act are significant. The title is "To Provide for Adjustments in Connection with the Crow Irrigation Project, Crow Indian Reservation, Montana." It is accordingly apparent from the title itself that the Act was intended to apply to the existing irrigation projects. Section 9 would prevent new construction on the Crow project without prior consent. Congress had authorized construction of Yellowtail Dam at the previous session in 1944. The 1946 Act makes no reference to Yellowtail Dam, but does refer specifically to the Crow Irrigation Project. Moreover, it appears from the hearings before the House Committee on Indian Affairs in 1946 that the Crow Tribe was concerned primarily (1) with some settlement of the problem of charges for construction and maintenance of irrigation projects theretofore constructed; and (2) that no further or additional irrigation systems be constructed on the reservation which were not desired by the owners of the lands benefitted and which might result in similar assessments against their lands. In my opinion, the 1946 Act was not intended to apply to the construction of Yellowtail Dam.5

The Flood Control Act of December 22, 1944, authorizing the development of the Missouri River Basin, including Yellowtail Dam, after providing that reclamation and power development should be governed by the Federal Reclamation Laws, recites "except that irrigation of Indian trust and tribal lands, and repayment therefor, shall be in accordance with the laws relating to Indian lands". It appears to me that here again Congress recognized the distinction between the construction and development of reclamation and power projects, including Yellowtail Dam, and the construction and development of irrigation projects for the irrigation of Indian lands.

Conceivably a situation may later arise in connection with the construction of an irrigation system on the Crow Reservation where the 1946 Act may be applicable, and either consent of the tribe or further action by Congress might be required. It is unnecessary to determine that question at this time.

SHOULD WATERPOWER VALUE BE ALLOWED AS A PART OF JUST
COMPENSATION?

It is plaintiff's contention that United States v. Twin City Power Co., 1936, 350 U. S. 222, 76 S. Ct. 259, 100 L. Ed. 240, is controlling and that under that decision the just compensation which the fifth amendment requires to be paid does not include waterpower value.

Defendants contend that this case is distinguishable and has no application (1) because the Twin City decision rests on the ground that the river in question was a navigable stream, whereas the Big

See Memorandum Opinion of Solicitor of Interior Department, dated February 3, 1954 (M36148).

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