INDIANS: County lacks jurisdiction to grant proposed RV park access over street in the former Big Arm townsite on Flathead Reservation… Christensen.
Lori Lundeen owns 40 acres bordering the western boundary of the former Big Arm townsite, which she hopes to develop as an RV park. With the blessing of Lake Co. Board of Commissioners she began constructing a road through Big Arm, connecting a gravel road, 7th St., with her property. She has asserted that an alternate route from a private road outside the townsite — Walking Horse Lane — is financially infeasible. Her road follows the rough contours of E St. as it was platted in 1913. E St. borders Blocks 17 & 30. Block 17 is the site of the former Big Arm school, patented to the County in 1918. No lots in Block 18 were sold, so the entire block was restored to the Confederated Salish & Kootenai Tribes. Lundeen applied to the County for a permit. Although Tribal representatives raised concerns about access to the RV park through Big Arm, the Board issued its conditional approval of Wild Horse RV Resort Subdivision in 5/18, and Lundeen began advertising for the RV park and commenced construction of the road. On 5/13/19 the Tribes placed a gate blocking access to her lot from 7th St. and BIA issued a notice of trespass to Sandry Const. The Tribes brought this action seeking a declaratory judgment “quieting [their] beneficial interest to the real property, including streets, alleys, and public reserves (held in trust by the United States for the benefit of the [Tribes]) in the Big Arm Townsite and determining that Defendants have no right, title, or interest in or to the real property or any public right of way.”
I. Title was not transferred.
The Tribes’ primary argument is that there was no transfer of title to the roadways. Defendants argue that the County holds title to the roadways depicted on the 1913 plat — or at minimum, that the Tribes no longer hold title. Thus the Court considers whether title is retained by the US in trust for the Tribes or was transferred through the Flathead Allotment Act or the 1906 appropriations bill rider. There is no question that from the time of the Hell Gate Treaty in 1855 through the platting of Big Arm, title was held by the US in trust for the Tribes and that the US remained trustee throughout the period of allotment. Indeed, the Flathead Allotment Act provides that “the United States shall act as trustee for said Indians to dispose of said lands and to expend and pay over the proceeds received from the sale thereof only as received.” Because the US had no obligation to sell reservation lands under the Flathead Allotment Act, there could be no transfer of title with the passage of that law. And the majority of the lots in Big Arm were never sold. If title to the Big Arm roadways had been transferred, the transfer must have occurred when the plat was issued in 1913. Indeed, this is the crux of Defendants’ argument — that because Congress authorized the sale of individual lots, it also authorized the dedication of the streets to public use, and such dedication actually occurred when the townsite was platted — “to hold otherwise would be illogical because nobody would purchase a lot in a townsite without access.” However, tribal lands cannot be divested by implication. “The whole purpose of trust land is the protection of land from unauthorized alienation.” Imperial Granite (9th Cir. 1991). Thus “only Congress can divest a reservation of its land and diminish its boundaries.” Solem (US 1984). “Once a block of land is set aside for an Indian Reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.” Id.
The Flathead Reservation was not diminished by the Flathead Allotment Act or the related 1906 townsite-specific legislation. Solem explored the distinction between “those surplus land acts that diminished reservations and those acts that simply offered non-Indians the opportunity to purchase land within established reservation boundaries.” Congress must “clearly evince an ‘intent to change boundaries’ before diminishment will be found.” Id.; Kneip (US 1977).
Although “explicit language of cession and unconditional compensation are not prerequisites for a finding of diminishment,” they are the most important factors. Id. Neither is found here. The Flathead Allotment Act provides that the US was to remain as trustee and had no obligation to sell the surveyed lands. Compensation was not “unconditional” but was tied to sale of lots; if the lots did not sell there was no transfer of land and money. Congress did not clearly intend to diminish the Reservation, and creation of the 1913 plat did not by itself remove the lands from tribal control.
II. Lake Co. does not have jurisdiction to unilaterally construct a new road in Big Arm.
The County and Lundeen argued that the County has jurisdiction over the roadways, even if it does not have title. Their position relies heavily on letters between Interior officials discussing jurisdiction over roads throughout Indian country. They contend that the agency materials nearly unanimously demonstrate “the ‘general rule of law’ that ‘approval of a townsite plat by the Secretary of the Interior, in accordance with law and sale of lots thereunder constitutes a dedication to public use of the streets and alleys shown on the plat without the necessity of special words of dedication on the plat.'” It is true that administrators’ “manner in dealing with unalotted lands” “has some evidentiary value.” Solem. However, Defendants’ reliance on such materials is misplaced for several reasons.
First, the materials do not constitute factual evidence. The officers repeat, often verbatim, the same general legal opinion that a platted street is dedicated to public use, but they give no attribution for that opinion outside of other Interior letters and memoranda. The Court cannot accept this ipse dixit simply because it appears to have been popular among many Interior officials in the early and mid-20th Century. What is more, some of the statements are plainly incorrect. For example, one letter states that “when an area is platted and recorded, the streets, alleys, and other public use areas are no longer considered property of the United States or subject to the administrative jurisdiction of the Secretary of the Interior.” But we know that this cannot be true in Big Arm because the US remained as trustee and had no obligation to sell lands under the Flathead Allotment Act.
Second, the record is not “unanimous.” For example, Defendants rely on statements by Field Solicitor Roy Allan in 1960. But he also wrote in 1957: “There is nothing in the [Flathead surplus land acts] by which the Congress has authorized the title in the United States in the streets, roads, etc., in unincorporated townsites and villa sites on the Flathead reservation to be transferred to anyone.” And that opinion was repeated in other agency materials throughout the years. Where administrative materials are “rife with contradictions and inconsistencies,” they can “be of no help to either side.” Solem.
Third, the materials do not hold the meaning attributed to them by Defendants. It is not merely the platting of a townsite that dedicates the roadways to public use, but the platting and subsequent sale of lots. The officials’ approach is functional, tying jurisdiction over public use areas to residents’ status as tribal members or non-Indian county residents. For example, the author of a 1960 letter directed toward “restoration to tribal ownership of streets, alleys and public reserves” in 2 other Flathead Reservation townsites explained that owners of lots adjacent to the roadways must petition under Montana law for abandonment of the roadways. Defendants claim that these letters support Court jurisdiction over the roadways in Big Arm, but they say only that a county road remains a county road unless and until the appropriate legal procedures are followed to abandon it.
The opinions in Defendants’ exhibits are indifferent to the precise question here — jurisdiction to build a previously undeveloped road through what is today tribal land. Tellingly, one letter includes language (ignored by Defendants) puzzling through that issue: “Restoration of unused dedicated areas to tribal ownership simultaneous with the restoration of undisposed lots would, if possible, be desirable.” Another official wrote that “when [platted roads] are no longer used for [a public purpose], they revert to tribal jurisdiction.” Like the other Interior communications, they are not particularly persuasive but they show that even this relatively weak authority does not support Defendants’ position.
In more practical terms, it hardly makes sense that a 100+-year-old plat, which marks long-abandoned plans and a rightfully discarded assimilationist policy, can give a county authority to unilaterally approve a new road through tribal land today. The parties do not discuss extensively the effect of the restoration of most of the lots in Big Arm to tribal ownership, but withdrawal of lots from the townsite in 1930 and 1956 is significant. Solem (considering “on a more pragmatic level,” “who actually moved onto opened reservation lands”).
Lake Co. and Lundeen argue that it defies logic to open up lots for sale to non-Indians but not authorize local road construction. The Court does not necessary disagree. Here, though, their logic works against them because the adjacent lots have been restored to tribal control; if a county has jurisdiction over roads in a non-Indian townsite, then surely the tribal government is entitled to the same treatment. In fact, it is highly unlikely that Lake Co. truly wants jurisdiction over the roadways in Big Arm to the degree that jurisdiction brings attendant governmental responsibilities — which by all accounts the tribal government is performing. All Lake Co. appears to want is to allow Lundeen to build an access road in the location most convenient for her business.
If Defendants seek to build a road in Big Arm, there is a procedure through which individuals and state and local governments may petition to develop roadways through Indian country. “The Secretary of the Interior is authorized to grant permission, upon compliance with such requirements as he may deem necessary, to the proper State or local authorities for the opening and establishment of public highways through any Indian reservation.” 25 USC 311. Today, a state or local government must submit a thorough application to BIA to establish a road under §311. 25 CFR 169.102. While the “requirements deemed necessary” have changed over the years, there is no dispute that the US has not given permission to Lake Co. and/or Lundeen to construct E St. In fact, she does not even seek permission from the US or the Tribes. There may have been a time when Lake Co. (or its predecessor Flathead Co.) could have developed E. St. However, assuming that it once had that authority, it did not develop the roadway during that time. The question now is whether Lundeen and Lake Co. can build a road through tribal lands today without first filing a petition to the US or even seeking permission from the Tribes. The statutes, administrative materials, and historical record give a clear answer: No.
Although the determination that Lake Co. lacks jurisdiction over E St. is dispositive, the Court considers the balance of Defendants’ arguments, and concludes that the Hell Gate and Lame Bull treaties do not give the County an unrestricted right to build roads through the Reservation and the Tribes’ win in a 1971 Court of Claims case in which they were compensated $6,066,668.78 for the Big Arm townsite does not foreclose this litigation under principles of claim preclusion, issue preclusion, estoppel, and payment/accord & satisfaction.
Confederated Salish & Kootenai Tribes v. Lake Co. Board of Commissioners and Lundeen, 44 MFR 223, 4/16/20.
James Goetz (Goetz, Baldwin & Geddes), Bozeman, and Daniel Decker, John Harrison, and Shane Morigeau (CSKT Legal Dept.) for CSKT; Dep. Lake Co. Atty. Walter Congdon and Deana Bennett, Spencer Edelman, and Luke Holmen (Modrall Sperling), Albuquerque, for the Commissioners; J.R. Casillas & Jenna Lyons (Datsopoulos, MacDonald & Lind), Missoula, for Lundeen.
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