I. INTRODUCTION 



In 1908, the U.S. Supreme Court first enunciated the 

 doctrine of an implied reserved water right for Indian reser- 

 vations. U.S. V Winters. 207 U.S. 564 (1908). Not until 

 much later, however, did the Supreme Court establish a 

 standard by which to quantify the federal reserved water 

 rights for Indian reservauons. In 1963, die Supreme Court 

 adopted the "practicably irrigable acreage" (PIA) standard 

 for Indian reservations established for agricultural purposes. 

 Arizona v. Cijifomia. 373 U.S. 546 (1963). The PIA stan- 

 dard was most recendy applied by the state courts of Wyo- 

 ming and affirmed by the United Sutes Supreme Court. 

 Wyoming v. U.S.. 109 S.Cl 2994 (1989). The analyses 

 employed by the staff of the Compaa Commission, and 

 reported in this document, constitute a modified PIA analy- 

 sis, which we refer to as a feasibly irrigable lands (FIL) 

 analysis. 



A- Background of Negotiations 



The Northern Cheyenne Tribe was among the first 

 tribes in Montana to agree to participate in negotiations to 

 setde water rights issues between the Tribe and the State. In 

 a letter dated February 28, 1980, Allan Rowland, President 

 of the Northern CheyenneTribal Council, informed Henry 

 Loble, Chairman of the Compact Commission, that the 

 Council had appointed a team of tribal council members 

 and tribal anomeys to represent them in discussions with the 

 Compact Commission. 



At die dme, federal courts had ruled that federal and 

 Indian reserved rights in Montana were to be quantified in 



the state's adjudication-negotiation process. In 1975 the 

 Northern Cheyenne Tribe had requested Montana's federal 

 distria court to adjudicate water rights in the Tongue River 

 and Rosebud Creek' . The same year, the United Sutes filed 

 a federal suit on its own behalf and as fiduciary for theTribe^. 

 The cases were stayed pending the United States Supreme 

 Court's determination whedier Indian reserved rights were 

 to be adjudicated in federal or sute coun. Colorado River 

 Water Conservation District v. United States. 424 U.S. 800 

 (1976). 



In 1979, based on Colorado River. Montana's federal 

 district courts dismissed the Tribal suits in favor of the state 

 forum. This ruling was ultimately upheld by the United 

 States Supreme Coun in Arizona v. San Carlos ApacheTribe. 

 463 U.S. 545 (1983)^ While San Carlos was pending, die 

 Tribe and the BIA on behalf of die Tribe filed eleven claims 

 for water rights with the Montana Water Court, although 

 filing is statutorily suspended while negotiations are in 

 progress. Section 85-2-217, Montana Code Annotated 



For over two years, discussions were held between the 

 State and Tribe on a wide range of issues related to both the 

 process of negotiations and the substantive issues involved in 

 the Northem Cheyenne claims to water in the Tongue and 

 Rosebud drainages of sou theastem Montana. The Commis- 

 sion staff acquired a considerable amount of data and began 

 analyses of the land and water resources of the reservation. At 

 the same time, the United States Bureau of Reclamation and 

 the Montana Department of Natural Resources and Con- 

 servation were engaged in feasibility studies for rehabilitating 

 the Tongue River Dam. 



' Northern Chevenne Tritx v. Tongue River Water Users' Ass'n. 484 F. Supp 31 (D. Mont. 1979). 



2 United States v. Tongue River Water Users' Ass'n. No. CV-75-20 (D. Mont, filed March 7, 1 975.). The United States also filed suit on 

 behalf of the Crow Tnbe. United States v. Rip Horn low line Canal. No. CV-75-34 (D. MonL filed April 17. 1975). 



' The supreme Court reversed and remanded to the Ninth Circuit, which had held in fiivor of the federal forum. Northem Chevenne Tnbc 

 V. Adsit. 668 F.2d 1080 (9th Cir. 1982). On remand, the Ninth Circuit stayed all proceedings in the Montana federal actions pending die 

 outcome of the state court proceedings. Northem Chevenne Tnbe v. Adsit. 721 F.2d 1 187 (9th Cir. 1983). 



For a compreher^ive discussion of this issue. See Maclntvie. Ouanrificadon of Indian Reserved Water Right in Montana: ."jgic g, rcli Grwlv 

 in the Footsteps of San Carlos Apache Tnbe. 8 Public Land Law Review 33 (1987). SfiSJllifl. Maclntyre, The Adjudication of Montana's 

 Water — A Blueprint for Improving the Judiaal Structure, 49 Mont. Law Rev. 21 1, 229 (1988). 



