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In the Supreme Court of the United States No. 15-779 In the Supreme Court of the United States CROW ALLOTTEES, ET AL., PETITIONERS v. UNITED STATES OF AMERICA, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA BRIEF FOR THE UNITED STATES IN OPPOSITION DONALD B. VERRILLI, JR. Solicitor General Counsel of Record JOHN C. CRUDEN Assistant Attorney General JOHN L. SMELTZER Attorney Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217 QUESTION PRESENTED Whether the Montana Supreme Court correctly affirmed the Montana Water Court’s order dismissing petitioners’ objections to the Crow Tribe-Montana Water Rights Compact. (I) TABLE OF CONTENTS Page Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 1 Statement ...................................................................................... 1 Argument ..................................................................................... 13 Conclusion ................................................................................... 26 TABLE OF AUTHORITIES Cases: Arizona v. San Carlos Apache Tribe of Ariz., 463 U.S. 545 (1983)........................................................ 14, 15 Big Horn Cnty. Elec. Coop., Inc. v. Adams, 219 F.3d 944 (9th Cir. 2000) ................................................. 3 Cappaert v. United States, 426 U.S. 128 (1976) .................... 3 Colorado River Conservation Dist. v. United States, 424 U.S. 800 (1976).................................................... 4, 14, 15 Colville Confederated Tribes v. Walton, 752 F.2d 397 (9th Cir. 1985), cert. denied, 475 U.S. 1010 (1986) ........... 21 Crow Water Compact, In re, 364 P.3d 584 (Mont. 2015) ......................................................................... 12 Hodel v. Irving, 481 U.S. 704 (1987) ...................................... 3 Montana v. Crow Tribe, 523 U.S. 696 (1998) ........................ 5 Montana v. United States, 450 U.S. 544 (1981) ............... 2, 3 Northern Cheyenne Tribe of N. Cheyenne Indian Reservation v. Adsit, 721 F.2d 1187 (9th Cir. 1983) ......... 4 Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ........... 23 State ex rel. Greely v. Confederated Salish & Koote- nai Tribes of Flathead Reservation, 712 P.2d 754 (Mont. 1985) ........................................................................... 4 United States v. Adair, 723 F.2d 1394 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984) ........... 21 (III) IV Cases—Continued: Page United States v. Jicarilla Apache Nation, 131 S. Ct. 2313 (2011) ..................................................................... 17, 22 United States v. New Mexico, 438 U.S. 696 (1978) ............ 20 United States v. Powers, 305 U.S. 527 (1939) ..... 2, 23, 24, 25 United States v. Preston, 352 F.2d 352 (9th Cir. 1965) ...................................................................... 21 United States v. Sioux Nation of Indians, 448 U.S. 371 (1980).................................................. 17, 23, 25 Winters v. United States, 207 U.S. 564 (1908) .......... 3, 18, 20 Treaty and statutes: Treaty of Fort Laramie of May 7, 1868, 15 Stat. 649 ........... 2 Arizona Water Settlement Act, Pub. L. No. 108-451, 204, 118 Stat. 3502-3503 ..................................................... 18 Crow Allotment Act of 1920, Ch. 224, 41 Stat. 751 ............... 2 Crow Tribe Water Rights Settlement Act of 2010, Pub. L. No. 111-291, 124 Stat. 3097: § 402(1), 124 Stat. 3097.................................................. 6, 7 § 402(2), 124 Stat. 3097...................................................... 6 § 403(7), 124 Stat. 3098...................................................... 9 § 403(7)(A), 124 Stat. 3098 .............................................. 16 §§ 405-406, 124 Stat. 3100-3104 ........................................ 8 § 405(c)(2), 124 Stat. 3100 ................................................. 8 § 407(a), 124 Stat. 3104.......................................... 6, 17, 25 § 407(a)(1)-(3), 124 Stat. 3104 ......................................... 17 § 407(b)(1), 124 Stat. 3104 ................................................. 6 § 407(c), 124 Stat. 3104 ...................................................... 6 § 407(d)(1), 124 Stat. 3104 ..................................... 7, 22, 25 § 407(d)(2), 124 Stat. 3105 .......................... 7, 17, 22, 24, 25 § 407(d)(3), 124 Stat. 3105 .......................... 7, 18, 22, 24, 25 § 407(d)(5), 124 Stat. 3105 ................................................. 7 V Statutes—Continued: Page § 407(d)(6), 124 Stat. 3105 ................................................. 7 § 407(e)(1), 124 Stat. 3105 ................................................. 7 § 407(f)(2)(C), 124 Stat. 3105 ............................................ 7 § 407(f)(2)(D), 124 Stat. 3105 ............................................ 7 § 407(f)(3), 124 Stat. 3106 .................................................. 7 § 409(a)(2), 124 Stat. 3108 ................................................. 8 § 409(a)(2)(A), 124 Stat. 3108 ......................................... 18 § 409(a)(2)(B), 124 Stat. 3108 ......................................... 18 § 410(a)(2), 124 Stat. 3109 ................................................. 8 § 410(a)(3), 124 Stat. 3110 ................................................. 8 § 410(a)(3)(D), 124 Stat. 3110 ......................................... 18 § 410(b), 124 Stat. 3111 ..................................................... 9 § 410(c)(1), 124 Stat. 3111 ................................................. 8 § 410(e), 124 Stat. 3112 ...................................................... 9 § 410(e)(1)(A), 124 Stat. 3112............................................ 9 § 410(e)(1)(A)(i), 124 Stat. 3112 ................................ 14, 16 § 411, 124 Stat. 3113-3116 ................................................. 8 § 414, 124 Stat. 3120-3121 ................................................. 8 § 415, 124 Stat. 3121 .......................................................... 9 General Allotment Act, ch. 119, 24 Stat. 388 ........................ 2 Indian Reorganization Act, ch. 576, 48 Stat. 984 .................. 3 McCarran Amendment, ch. 651, 66 Stat. 560 (43 U.S.C. 666)....................................................................... 4 Snake River Water Rights Act, Pub. L. No. 108-447, Tit. X, 118 Stat. 3431-3432, 3434-3435 .............................. 18 25 U.S.C. 348 ............................................................................ 3 25 U.S.C. 381 .................................................................. 4, 7, 25 25 U.S.C. 462 ............................................................................ 3 25 U.S.C. 463 ............................................................................ 3 43 U.S.C. 666 .......................................................................... 14 VI Statutes—Continued: Page Mont. Code Ann. (1979): § 85-2-212............................................................................ 4 § 85-2-232 (2009) ................................................................ 9 § 85-2-234 (2009) .............................................................. 16 § 85-2-235(1) (2009) ......................................................... 16 § 85-20-901 (1999) .............................................................. 5 Miscellaneous: Crow Tribe-Montana Water Rights Compact: Preamble ............................................................................ 5 Art. III ................................................................................ 5 Art. II.7 .............................................................................. 5 Art. II.28............................................................................. 5 Art. II.30........................................................................... 21 Art. IV.A.1 .......................................................................... 5 Art. IV.A.2.b....................................................................... 5 Art. IV.B.1 .................................................................... 5, 18 Art. IV.B.2 ...................................................................... 5, 6 Art. VII.B.2 ........................................................................ 5 App. 1 .................................................................................. 6 In the Supreme Court of the United States No. 15-779 CROW ALLOTTEES, ET AL., PETITIONERS v. UNITED STATES OF AMERICA, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the Montana Supreme Court (Pet. App. 1-20) is reported at 354 P.3d 1217. The opinion of the Montana Water Court (Pet. App. 21-52) is unre- ported. JURISDICTION The judgment of the Montana Supreme Court was entered on July 30, 2015. On October 22, 2015, Justice Kennedy extended the time within which to file a petition for a writ of certiorari to and including De- cember 14, 2015, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1257. STATEMENT The Crow Tribe-Montana Water Rights Compact (Compact) is a settlement of water rights on the Crow Indian Reservation in southeastern Montana. Follow- ing the Compact’s approval by the United States Con- (1) 2 gress, by the Montana legislature, and by the Apsaa- looke (Crow)
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