A Crow tribal court judge has denied a petition for a temporary restraining order to halt a referendum asking Crow members to ratify the Crow Water Settlement Act of 2010. The judge said that any irreparable harm the petitioners may suffer will occur only after the act is ratified. By that time, however, the petitioners won’t be able to do anything about it.
Jonni Dreamer-Big Hair, associate judge of the Crow Tribal Court, denied the temporary restraining order (TRO) on March 16, three days before the scheduled March 19 referendum and a day after a group of eight Crow Nation citizens, who own reservation land held in trust for them by the Interior Department (allottees), filed the petition seeking a halt to the vote. The petitioners—Pius Real Bird, Earl Bear Crane, George Reed, Jr., Dennis Beaumont, Michael Hill, Sr., Richard White Clay, Patrick J. Hill, and Brenda Pretty Weasel—say the Water Settlement Act illegally includes a tribal-state water compact that was terminated twice, strips them of water rights they now hold, and was negotiated without their consent or input in violation of their due process rights. They name Crow Chairman Cedric Black Eagle, Vic Chairman Coolidge Jefferson, Secretary Scott Russell, and Vice Secretary Darren Old Coyote as respondents in the petition.
The petition and its denial are the latest actions in an ongoing controversy over water rights and the Crow Water Settlement Act of 2010, which was negotiated by Crow governments, the State of Montana, and the federal government over the past several years.
“I think the petition was denied based upon absolute stupidity,” said William Eggers, a Crow member, an allottee, and an attorney who is representing the allottees told Indian Country Today Media Network. “I pleaded a lot of existing irreparable damage going forward from 1999 to the present day, and there is immediate harm awaiting us if the Water Settlement Act is approved.”
The Crow Water Rights Settlement Act was passed as part of the Claims Settlement Act of 2010, which settled a number of claims against the United States. The act was passed by Congress in late November and signed by President Obama, but it will not be finalized until Crow citizens ratify it. If the act is ratified, the tribe will get 500,000 acre-feet per year of water from the Bighorn River and 300,000 acre-feet from Bighorn Lake. The act will also bring in $460 million from the federal government to design and construct a new water system, rehabilitate and operate the present irrigation system, operate and maintain a safe drinking-water system, and develop energy projects. However the petitioner/allottees say they are not interested in the money the tribe will receive, but in retaining their historic water rights.
In the order denying the petitioner’s request, Dreamer-Big Hair cited Crow law that says a TRO may be granted without notice to the adverse party “only if the facts shown in the verified complaint establish that immediate and irreparable harm to the petitioner will result before the adverse party can be heard in opposition.” No immediate and irreparable harm has been or “can be shown,” she said.
“Any harm which they may suffer will occur if, and only if, the water compact is ratified through the referendum vote,” Dreamer-Big Hair wrote in her denial order.
The allottees, however, listed a host of “irreparable harms” in their petition that they say have already occurred. They say the Crow-Montana Water Compact agreed to in 1999 was rescinded twice and therefore is included in the Water Settlement Act illegally. “The Compact of 1999 was unanimously disapproved by the Crow Tribal Council on or about July 14, 2000. On or about June 21, 2004, the Compact of 1999, by its own terms and conditions, was terminated a second time,” the petitioners write. They charge the officials with having “illegally claimed, asserted and assumed the right and authority to engage in Compact negotiations with the State” on their behalf without their participation or permission.
They assert that their water rights are rooted in the Fort Laramie Treaty of 1868, federal statutes and U.S. Supreme Court decisions that have given them “a reserved water right which is separate and exclusive from the Crow Tribe which Respondents, without authority or legal right, seek to terminate.”
The allottees also claim their due process rights were violated by being excluded from the negotiations between the tribe, the federal government and the state, and in particular by a “Release and Waiver Clause” in the Water Settlement Act that terminates not only their water rights but also their right to challenge the termination of their rights.
The allottees’ plan at the moment is to try to get out the vote and defeat the Settlement Act ratification, Eggers said. “If they’re successful, I’ll file a motion for a show cause hearing and then seek a preliminary injunction in Crow court. If (the Water Settlement Act vote) passes I think the case is moot. There’s nothing to be done. There is a release and hold harmless clause in the Water Settlement Act, which Cedric apparently negotiated on behalf of all the allottees, that waives and releases all claims and rights against everyone, whoever they may be, from the beginning of time to the end of time,” Eggers said. Once the Act has been ratified, “there’s nothing we allottees can do externally with the federal government or the state, and nothing we can do with the tribe. That’s it, folks, game over.”
Furthermore, adding an extra layer of frustration, Eggers said, is the fact that “Crow members who don’t own land will be voting against tribal members who do own land.”
Heather Whiteman Runs Him, co-counsel for the Crow Tribe, said the allottees’ fears are unfounded, according to a Billings Gazette report.
White Man Runs Him said the federal government, in its trust capacity, represented the allottees throughout negotiations. “There have also been allottees involved in that process,” she said.
She said the allottees’ fear about their water rights being reduced to “junior claim” status is unfounded, since Indian water users on trust land are not required to file claims with the state.
“That was done on their behalf by the federal government as trustee,” White Man Runs Him said. “Any water use on tribal trust land, whether individual or tribally owned, is protected as a senior water right as of 1868, and it’s specifically stated in the (1999) water compact as well as in the settlement.” She also said the Water Settlement Act says allottees are entitled to “a just and equal portion of the tribal water right.”
But neither the allottees nor Eggers are convinced that their water rights will be preserved.
“This whole case, this whole situation involving the Crow Water Compact, creates a new negotiating and resolution paradigm. That’s the problem that’s important to Indian country,” Eggers said. Not only did the tribal government assert itself on behalf of the allottees without their permission, but also the process did not include a Practicable Irrigable Acreage Study, and therefore the water on the reservation wasn’t quantified, so there is no basis upon which to calculate the value of each tribal member or allottee’s water right.
“Most other tribes took care of their tribal members, but a couple of Crow administrations here have thrown us away. We’re desirous of holding on to our water rights. We could be offered money, but we don’t want the money. We want the water,” Eggers said.