In 1986 the Joint Board took exception to the BIA's new 

 operating strategy that provided greater protection for 

 tribal fisheries by ensuring minimum streamflow and minimum 

 reservoir levels. The Joint Board brought a suit for 

 injunctive relief (in essence arguing for an eguitable 

 sharing of the water) , and this time the Tribes intervened. 

 The Federal District Court issued a temporary restraining 

 order against the BIA and after a hearing issued a prelimi- 

 nary injunction enjoining the BIA from continuing to deliver 

 water according to the new operating strategy. The Federal 

 District Court counseled that the BIA must be guided by the 

 principle of "just and equal distribution" of " all waters of 

 the reservation." On appeal the Ninth Circuit Court of 

 Appeals reversed the District Court, holding that "just and 

 equal distribution" applied by a certain federal statute only 

 where all of the parties derived their rights from the same 

 source and all showed the same priority date, but did not 

 apply on the Flathead Reservation to the extent the Tribes 

 exercised the aboriginal fishing rights and where treaty 

 language clearly preserved those rights and the water needed 

 for them. The Ninth Circuit Court ruled: 



...it was error, therefore, for the 

 district court to hold that water claimed 

 under potentially prior tribal fishing 

 rights must be shared with junior appro- 

 priators, and that the requirement of 

 equitable sharing could be imposed 

 without addressing the Tribes' claim of 

 aboriginal fishing water rights. 



The Ninth Circuit concluded that because any aboriginal 

 fishing rights secured by treaty are prior to all irrigation 

 rights, neither the BIA, nor the Tribes are subject to a duty 

 of fair and equal distribution of reserved fishery waters. 

 Only after the fishery waters are protected does the BIA have 

 a duty to distribute fairly and equitably the remaining 

 waters among irrigators of equal priority. 



It is important to note that this case did not amount 

 to an adjudication of the Tribes' water rights. It did, 

 however, give credence to those claimed rights and sought to 

 protect them. The extent of those rights remains to be 

 concluded, either in a compact or an adjudication through 

 Montana's general stream adjudication. 



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