Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 1 of 17
`
`Kelli J. Keegan
`Barnhouse Keegan Solimon & West LLP
`7424 4th Street NW
`Los Ranchos de Albuquerque, NM 87107
`Telephone: (505) 842-6123
`Facsimile: (505) 842-6124
`Email: kkeegan@indiancountrylaw.com
`
`Thomas E. Luebben
`Law Offices of Thomas E. Luebben PC
`21 Star Splash
`Santa Fe, NM 87506
`Phone: 505-269-3544
`Email: tluebbenlaw@msn.com
`Pro Hac Vice Pending
`
`
`Attorneys for Plaintiffs
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`
`
`
`Michael Hill, President
`
`
`Crow Allottees Association
`
`
`176 Hill Lane
`
`
`
`Lodge Grass, MT 59050
`
`
`
`
`
`
`
`Senator Jason Kills Pretty Enemy
`Crow Tribe Legislative Representative
`Arrow Creek District
`
`
`4106 Pryor Gap Rd.
`
`
`
`Pryor, MT 59066
`
`
`
`
`
`
`
`
`
`Alee Birdhat
`
`
`
`
`158 High Eagle Ave
`
`
`
`Crow Agency, MT 59022
`
`
`
`
`
`
`
`
`Leeya Biglake Hill
`
`
`
`P.O. Box 1132
`
`
`
`Crow Agency, MT 59022
`
`
`
`
`
`
`
`
`Abby Birdhat
`
`
`
`158 High Eagle Ave
`
`
`
`Crow Agency, MT 59022
`
`
`
`
`
`
`
`
`Francis White Clay
`
`
`
`
`
`
`Cause No. 1:22-CV-01781
`
`COMPLAINT
`
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`1
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 2 of 17
`
`
`
`
`
`
`
`
`
`
`)
`
`
`
`135 Cindy Dr.
`)
`
`
`Crow Agency, MT 59022
`)
`
`
`
`
`
`
`)
`
`Plaintiffs,
`)
`
`
`
`
`
`
`)
`
`
`
`
`
` v.
`)
`
`
`
`
`
`
`)
`THE UNITED STATES DEPARTMENT
`)
`OF THE INTERIOR; DEB HAALAND,
`)
`in her official capacity as United States
`)
`Secretary of the Interior, and BRYAN
`)
`NEWLAND, in his official capacity as
`)
`Assistant United States Secretary of the
`)
`Interior for Indian Affairs
`
`
`)
`1849 C Street N.W.
`
`
`
`)
`Washington, D.C. 20240
`
`
`)
`
`
`
`
`
`
`)
`Defendants.
`
`____________________________________)
`
`I.
`
`NATURE OF CASE.
`
`
`1.
`
`This is an action under the Administrative Procedures Act, 5 U.S.C 701 et seq.,
`
`for declaratory relief to declare the June 22, 2016, publication by the Interior Secretary in the
`
`Federal Register of the “Statement of Findings: Crow Tribe Water Rights Settlement Act of
`
`2010,” causing certain waivers and releases of claims to become effective and, as required by the
`
`Act (“2010 Settlement Act”), purporting to establish the enforcement date of the Act; premature
`
`and void and of no effect as a matter of law, and for injunctive relief against further
`
`implementation of the 2010 Settlement Act and the 1999 Crow – Montana Water Compact
`
`(“1999 Compact”).
`
`2.
`
`The Crow Tribe is a federally recognized tribe in eastern Montana. The Fort
`
`Laramie Treaty of 1868 recognized eight million acres of land as belonging to the Crow Tribe
`
`and provided for individual tribal member allotments.
`
`3.
`
`In 1891, via an act of Congress, the Crow Tribe ceded two million acres of land to
`
`
`
`2
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 3 of 17
`
`the federal government (“Ceded Strip”). Crow tribal members were permitted to hold allotments
`
`on the ceded portion. In 1904, the federal government reduced the size of the Crow reservation to
`
`2.3 million acres, its present size.
`
`4.
`
`The 1920 Crow Allotment Act allotted the remaining Crow reservation lands into
`
`individual tracts to be held in trust by the United States for every enrolled member of the Crow
`
`Tribe.
`
`5.
`
`Pursuant to the allotment statutes and the federal common law Winters Doctrine,
`
`individual Indian trust allottees were partitioned a portion of the Crow Reservation water right
`
`sufficient to irrigate the practicably irrigable acres (“PIA”) on each allotment as an appurtenant,
`
`expansive, marketable real property water right with a senior priority of 1868.
`
`6.
`
`The 2010 Settlement Act seeks to expropriate and recollectivize the Crow
`
`allottees’ individual appurtenant Winters Doctrine Indian water rights under Crow tribal
`
`ownership and control without compliance with the United States Constitution’s Fifth
`
`Amendment requirements of due process of law, public purpose and just compensation.
`
`7.
`
`While the 2010 Settlement Act purports to extinguish the Winters Doctrine Indian
`
`water rights appurtenant to Crow individual Indian trust allotments and to abandon the senior
`
`Indian water rights priority established by the 1868 Treaty of Fort Laramie, in the 22 years since
`
`its passage the Act has failed to deliver its promised benefits to the Crow Tribe and the Crow
`
`allottees.
`
`8.
`
`The 1999 Compact mandates the preparation of “Appendix I” listing all water
`
`uses (exercised water rights) on the Crow Reservation, including the uses of the allottees. It was
`
`to be the basis for the current allocation of water among users on the Reservation and for
`
`determining which Indian water uses (rights) were developed prior to 1999 and are therefore not
`
`
`
`3
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 4 of 17
`
`junior to post-1999 developed uses on the Reservation. Appendix I has never been compiled.
`
`9.
`
`The 2010 Settlement Act requires the Tribe to adopt a Tribal Water Code,
`
`including a licensing and permitting system governing the allocation and distribution of the tribal
`
`water right on the Reservation, for approval by the Interior Secretary “within a reasonable period
`
`of time.” A Crow Tribal Water Code has never been adopted by the Tribe or approved by the
`
`Secretary. Consequently, allottees’ “right” to use a share of the tribal water right remains
`
`undefined, whereas the allottees’ marketable Winters Doctrine Indian real property water rights
`
`are to have been extinguished by the Act without due process of law, just compensation, or for a
`
`public purpose as required by the Fifth Amendment.
`
`10.
`
`The federal government has a binding fiduciary responsibility to individual Crow
`
`allottees for the protection of their allotments and appurtenant Winters Doctrine Indian water
`
`rights held in trust by the United States. At all times relevant to this lawsuit the United States has
`
`been subject to egregious conflicts of interest with respect to its trust obligations to the Crow
`
`allottees and unable to fulfill its fiduciary duties to them.
`
`11.
`
`As a result of its pervasive conflicts of interest, the United States has been and is
`
`unable to fulfill its duties to protect the Crow allottees Winters Doctrine Indian water rights and
`
`has sought to extinguish those rights without notice to the allottees or lawful adjudication in
`
`violation of the Fifth Amendment.
`
`12.
`
`As a matter of federal common law, and due to its egregious conflicts of interest,
`
`the United States was obligated to provide the Crow allottees with independent legal counsel to
`
`assert and protect their rights during litigation of United States v. Horn Low Line Canal, et al.,
`
`and “In the Matter of the Adjudication of Existing and Reserved Rights to the Use of Water, Both
`
`Surface and Underground, of the Crow Tribe of Indians of the State of Montana” before the
`
`
`
`4
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 5 of 17
`
`Montana Water Court, and the negotiation of the 1999 Compact and the 2010 Crow Settlement
`
`Act.
`
`II.
`
` JURISDICTION AND VENUE
`
`13.
`
`The Court has jurisdiction over this action pursuant to 5 U.S.C. § 701 et seq.
`
`(providing for judicial review of federal agency action under the Administrative Procedure Act)
`
`and 28 U.S.C. § 1331 (providing jurisdiction over federal questions). The Allottees have
`
`exhausted all administrative remedies available to them.
`
`14.
`
`Venue is proper in this district pursuant to 28 U.S.C. § 1391 because a substantial
`
`part of the events or omissions giving rise to the claims herein occurred within this judicial
`
`district.
`
`III.
`
`PARTIES
`
`15.
`
`Plaintiff Michael Hill is an enrolled member of the Crow Tribe and holds a
`
`majority real property interest in Allotment No. 1833, consisting of 720 acres, and several other
`
`allotments, including irrigated parcels. Mr. Hill also holds fractional interests in several other
`
`allotments on the Crow Reservation. Mr. Hill currently serves as the President of the Crow
`
`Allottees Association.
`
`16.
`
`Plaintiff Senator Jason Kills Pretty Enemy is an enrolled member of the Crow
`
`Tribe and currently serves in the Crow Nation Legislature as a Representative from the Arrow
`
`Creek District. Senator Kills Pretty Enemy holds real property interests in several individual
`
`Indian trust allotments on the Crow Reservation, including irrigated parcels.
`
`17.
`
`Plaintiff Alee Birdhat is an enrolled member of the Crow Tribe and holds real
`
`property interests in several individual Indian trust allotments on the Crow Reservation,
`
`including irrigated parcels.
`
`
`
`5
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 6 of 17
`
`18. Ms. Birdhat also serves as the Vice-President of the Crow Allottees Association
`
`19.
`
`Plaintiff Leeya Biglake Hill is an enrolled member of the Crow Tribe and holds
`
`real property interests in several individual Indian trust allotments on the Crow Reservation,
`
`including irrigated parcels.
`
`20.
`
`Plaintiff Abby Birdhat is an enrolled member of the Crow Tribe and holds real
`
`property interests in several individual Indian trust allotments on the Crow Reservation,
`
`including irrigated parcels.
`
`21.
`
`Plaintiff Francis White Clay is an enrolled member of the Crow Tribe and holds
`
`real property interests in several individual Indian trust allotments on the Crow Reservation,
`
`including irrigated parcels.
`
`22.
`
`Defendant United States Department of the Interior is the federal agency charged
`
`with administering the Bureau of Indian Affairs, which directly administers the laws and
`
`regulations applicable to individual Indians and the real property interests of tribes and
`
`individual Indians in individual Indian trust allotments and water rights appurtenant to individual
`
`Indian trust allotments.
`
`23.
`
`Defendant Secretary of the Interior Deb Haaland is the federal official responsible
`
`for proper administration of the Interior Department and the Bureau of Indian Affairs and is the
`
`principal official responsible for upholding the federal government’s fiduciary duties as trustee
`
`over individual Indian trust allotments and water rights and other resources appurtenant to such
`
`allotments.
`
`24.
`
`Defendant Assistant Secretary of the Interior for Indian Affairs Bryan Newland is
`
`the federal official directly responsible for the administration of the Bureau of Indian Affairs and
`
`for administering all laws and regulations applicable to Indian affairs, Indian tribes and
`
`
`
`6
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 7 of 17
`
`individual Indians and their real property held in trust by the United States, including the faithful
`
`execution of the United States’ fiduciary duties and trust obligations with respect to such
`
`property.
`
`IV.
`
`STATEMENT OF FACTS
`
`25.
`
`Pursuant to the Fort Laramie Treaty of 1868, the General Allotment Act of 1887,
`
`and the Crow Act of 1920, the United States allotted tribal lands on the Crow Indian Reservation
`
`in Montana to individual Crow tribal members. Approximately 5,000 Crow Indians (the
`
`“allottees”) hold Winters Doctrine marketable real property interests in water rights appurtenant
`
`to their individual Indian trust allotments on or near the Crow Reservation pursuant to the 1851
`
`and 1868 Treaties of Fort Laramie, the 1887 General Allotment Act, the 1920 Crow Allotment
`
`Act, and federal common law.
`
`26.
`
`Pursuant to the allotment statutes and the federal common law Winters Doctrine,
`
`the Allottees hold water rights for all practically irrigable acreage (“PIA”) on their allotted lands,
`
`whether they have historically irrigated all of that acreage or not.
`
`27.
`
`Approximately 11% of the Crow Indian Reservation is unallotted and owned by
`
`the Crow Tribe. The Crow Tribe owns additional lands in the form of individual Indian
`
`allotments it has reacquired. Approximately 46% of the Crow Reservation is owned by 5,000
`
`allottees as individual Indian trust allotments.
`
`28.
`
`On April 17, 1975, the United States, in its own right and as a fiduciary on behalf
`
`of the Crow Tribe and individual Indian trust allotment landowners, filed United States v. Big
`
`Horn Low Line Canal, et al. seeking a declaration of the rights of the United States, the Crow
`
`Tribe, and the allottees in and to the use of the waters of the Tongue River, the Big Horn River,
`
`the Little Big Horn River, Pryor Creek, Sage Creek, Tullock Creek, Sarpy Creek, within the
`
`
`
`7
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 8 of 17
`
`State of Montana, and all tributaries thereto.
`
`29.
`
`In 1979 the Montana Legislature amended the Montana Water Use Act to create
`
`the Montana Water Court. The Water Court was given jurisdiction over all water rights claims
`
`and adjudications in the state.
`
`30.
`
`The 1979 Montana Legislature also created the Montana Reserved Water Rights
`
`Compact Commission as part of the state-wide general stream adjudication. The Commission’s
`
`mission is to negotiate settlements with Montana Indian tribes and federal agencies which claim
`
`federal reserved water rights within Montana to quantify those rights. Mont. Code Ann. § 2-15-
`
`212.
`
`31.
`
`The Crow Tribe, the United States, and the State of Montana negotiated the 1999
`
`Crow Compact over a period of more than twenty years without providing for the participation
`
`of any designated allottees’ representatives or counsel for the allottees. The 1999 Compact was
`
`ratified by the 1999 Montana Legislature and amended in 2009. Mont. Code Ann. § 85-20-901.
`
`32.
`
`The 1999 Crow Compact and the 2010 Settlement Act seek to expropriate and
`
`recollectivize allottees’ real property interests in water rights appurtenant to their allotments --
`
`created by the 1887 General Allotment Act and the 1920 Crow Allotment Act -- for the benefit
`
`of the Crow Tribe, the United States and non-Indian water users in violation of the United States
`
`Constitution’s Fifth Amendment prohibitions on the taking of private property without due
`
`process of law, a public purpose and just compensation.
`
`33.
`
`On November 30, 2010, the United States Congress ratified the Crow Compact by
`
`enacting the Crow Tribe Water Rights Settlement Act of 2010 P.L. 111-291 (Nov. 30, 2010)
`
`(Title IV of Claims Resolution Act of 2010) (hereinafter “Settlement Act”). President Barack
`
`Obama signed the Settlement Act on Dec. 8, 2010.
`
`
`
`8
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 9 of 17
`
`34.
`
`In spite of the lack of a tribal water code or tribal water rights system and the fact
`
`that the allottees own far more land on the Crow Reservation than the Tribe, the 1999 Crow
`
`Compact and the 2010 Settlement Act allocate all of the reserved water rights on the Crow
`
`Indian Reservation to the Tribe.
`
`35.
`
`Settlement Act § 410(a)(2) purports to allow the United States as trustee for the
`
`allottees to waive and release all of allottees’ claims for water rights.
`
`(2) WAIVER AND RELEASE OF CLAIMS BY THE UNITED STATES
`ACTING IN ITS CAPACITY AS TRUSTEE FOR ALLOTTEES.— … in return
`for recognition of the water rights of the Tribe and other benefits as set forth in the
`Compact and this title, the United States, acting as trustee for allottees, is authorized
`and directed to execute a waiver and release of all claims for water rights within the
`Reservation and the ceded strip that the United States, acting as trustee for the
`allottees, asserted, or could have asserted, in any proceeding, including the State of
`Montana stream adjudication, prior to and including the enforceability date, except
`to the extent that such rights are recognized in the Compact or this title.
`
`
`36.
`
`On March 19, 2011, the Crow Tribe ratified the 1999 Compact as required by §
`
`410(e)(1)(E)(1) of the Settlement Act.
`
`37.
`
`The Settlement Act § 407(f)(1) required the Crow Tribe to adopt a tribal water
`
`code within three years after tribal ratification of the 1999 Crow Compact, or by March 19, 2014.
`
`No tribal water code has been adopted by the Crow Tribe. No remedies are available to the
`
`allottees under the tribal water code or other applicable tribal law.
`
`38.
`
`Settlement Act § 407(f)(3) further requires the Interior Secretary to approve the
`
`tribal water code “within a reasonable period of time after … the Tribe submits it to the
`
`Secretary.”
`
`39.
`
`On April 27, 2012, Interior Secretary Salazar signed the 1999 Crow Compact on
`
`behalf of the United States.
`
`40.
`
`On December 21, 2012, the Montana Water Court issued a Notice of Entry of
`
`
`
`9
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 10 of 17
`
`Crow Tribe – Montana Compact Preliminary Decree constituting a preliminary water rights
`
`decree for the Crow Reservation water basins. The Court set a deadline of June 24, 2013,
`
`subsequently extended to September 23, 2013, for filing objections to the preliminary decree.
`
`41.
`
`Several dozen Crow individual Indian trust allotment owners timely filed
`
`objections to the Montana Water Court’s Preliminary Decree.
`
`42.
`
`On May 15, 2014, the Crow Allottees Association and dozens of individual
`
`allottees filed an action in United States District Court (Crow Allottees Association, et al. v.
`
`Department of the Interior, et al.) seeking broad equitable relief, including declaratory and
`
`injunctive relief, against the Interior Department, the Secretary of the Interior and the Bureau of
`
`Indian Affairs for violations of the fiduciary obligations of the United States to individual Indian
`
`trust allotment landowners by implementing the 1999 Crow-Montana Compact and the 2010
`
`Settlement Act by failing to protect and preserve, and waiving and releasing, the allottees’ real
`
`property interests in water rights appurtenant to their allotments without notice, due process of
`
`law, or consent in violation of their fiduciary duties; and failing to provide adequate legal
`
`counsel to the allottees.
`
`43.
`
`On May 15, 2014, 43 individual Crow Indian trust allotment landowners who had
`
`timely filed objections in the Montana Water Court to the December 21, 2012, preliminary
`
`decree filed a motion seeking a stay of the Montana Water Court proceedings pending resolution
`
`of their claims in their federal lawsuit, Crow Allottees Association, et al. v. Department of the
`
`Interior, et al., alleging that the United States violated its fiduciary duties to protect water rights
`
`appurtenant to their allotments and violated their constitutional and statutory rights to real
`
`property.
`
`44.
`
`Throughout the long history of negotiating this compact, the United States has
`
`
`
`10
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 11 of 17
`
`represented to the allottees in various communications that their interests were fully represented
`
`by the United States.
`
`45.
`
`In the Montana Water Court, the Montana Supreme Court, the District Court for
`
`Montana, and the Ninth Circuit Court of Appeals the United States consistently asserted it
`
`“adequately represented the allottees.” To the contrary, it had not provided adequate legal
`
`representation to the individual allottees at all and generally refused or avoid meeting with
`
`allottees and allottees representatives., Further, in at least one instance by letter of November 8,
`
`2001 the Montana Water Court advised an allottee who had filed a claim in the Montana Water
`
`Court to take no further action because the United States was taking care of her rights in the 1999
`
`Compact and that “[y]our mother’s claim …is based on the Tribe’s reserved water and I is
`
`unclear how that claim might be affected by the Tribe’s water compact which is currently being
`
`negotiated. Therefore, it appears the best course is to let this case sit until the Compact is
`
`completed.”
`
`46.
`
`The Montana Water Court summarily denied all of the Crow allottees’ objections
`
`on July 30, 2014, and their request for a stay on the grounds that “[a]llottees do not own a
`
`portion of the Tribe’s Winters [Doctrine] rights. Accordingly, they were not entitled to receive
`
`separate notice of the Compact under statutes providing for such notice ….” The allottees
`
`appealed to the Montana Supreme Court.
`
`47.
`
`On June 30, 2015, the federal district court in Crow Allottees Association, et al. v.
`
`Department of the Interior, et al., granted the federal defendants judgment on the pleadings on
`
`the grounds of lack of jurisdiction. The Court held that there was no waiver of the sovereign
`
`immunity of the United States under the APA because there was no final agency action to
`
`challenge under 5 U.S.C. § 706. The plaintiffs appealed to the Ninth Circuit Court of Appeals.
`
`
`
`11
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 12 of 17
`
`48.
`
`On July 30, 2015, the Montana Supreme Court affirmed the Water Court’s denial
`
`of the allottees’ objections and the allottees motion for a stay on the grounds the allottees’ do not
`
`hold real property interests in water rights appurtenant to their allotments, but rather a “tribal
`
`derivative” right, and allottees’ rights to a “just and equal portion of the Tribal Water Right” are
`
`recognized by the 1999 Compact.
`
`49.
`
`Settlement Act § 410(e) states that the enforceability date shall be the date on
`
`which the Secretary publishes in the Federal Register a statement of findings that seven specific
`
`contingencies have been satisfied.
`
`50.
`
`Settlement Act § 410(e)(1)(A) requires that:
`
`(A)(i) the Montana Water Court has issued a final judgment and decree approving
`the Compact; or
`
`(ii) if the Montana Water Court is found to lack jurisdiction, the district court of
`jurisdiction has approved the Compact as a consent decree and such approval is
`final; ….
`
`Settlement Act § 403(7) defines
`
`“FINAL.—The term ‘‘final’’ with reference to approval of the decree described in
`section 410(e)(1)(A), means—
`
`(A) completion of any direct appeal to the Montana Supreme Court of a decree by
`the Montana Water Court …; or
`
`
`(B) completion of any appeal to the appropriate United States Court of Appeals,
`…, whichever occurs last.
`
`On June 22, 2016, the Interior Secretary published a “Statement of Findings” in
`
`51.
`
`52.
`
`the Federal Register including the following:
`
`1. The Montana Water Court has issued a final judgment and decree approving
`the Compact; ….
`
`Once the Montana Water Court decree is final, Montana will recognize Crow
`
`
`53.
`
`Indian water rights as belonging exclusively to the Crow Tribe. It will not recognize any real
`
`
`
`12
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 13 of 17
`
`property interests in water rights appurtenant to individual Indian trust allotments as belonging to
`
`individual allottees.
`
`54.
`
`On June 28, 2017, the Ninth Circuit Court of Appeals issued a Memorandum
`
`Opinion in Crow Allottees Association v. Bureau of Indian Affairs, No. 15-35679 on appeal
`
`(D.C. No. 1:14-cv-00062-SPW) (United States District Court for Montana, Billings). The Court
`
`of Appeals noted that since the District Court’s dismissal of the case the waivers of rights
`
`provided in the 2010 Settlement Act had gone into effect (June 22, 2016, Federal Register
`
`publication) constituting final agency action under the Administrative Procedures Act. However,
`
`the Court affirmed the District Court’s dismissal on the alternative grounds that the plaintiffs
`
`failed to state a claim on which relief could be granted because the 1999 Crow Compact and the
`
`2010 Settlement Act waivers were in effect.
`
`COUNT I
`
`ADMINISTRATIVE PROCEDURES ACT CHALLENGE TO STATUTORY
`VIOLATION
`
`Plaintiffs reallege paragraphs 1 through 52 as though fully stated herein.
`
`55.
`
`56.
`
`The Interior Secretary’s June 22, 2016, publication in the Federal Register
`
`purporting to establish the Crow Tribe Water Rights Settlement Act of 2010 enforcement date on
`
`the basis that all of the conditions required by § 410(e) for the Act’s water rights waivers to
`
`become effective are met was more than one year and three months premature. Settlement Act §§
`
`410(e)(1)(B) and 403(7) did not allow such publication until September 27, 2017, at the earliest.
`
`The publication is therefore void and of no effect and the waivers and releases of the allottees’
`
`water rights provided in § 410(a)(2) are void and of no effect.
`
`COUNT II
`
`VIOLATION OF THE ALLOTTEES’ FIFTH AMENDMENT CONSTITUTIONAL
`
`
`
`13
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 14 of 17
`
`RIGHTS TO DUE PROCESS OF LAW, PUBLIC PURPOSE, AND JUST
`COMPENSATION
`
`Plaintiffs reallege paragraphs 1 through 52 and 54 as though fully stated herein.
`
`57.
`
`58.
`
`Under federal common law and Montana statutory law, a water right is a real
`
`property right. The Montana and United States Constitutions provide protection from
`
`expropriation for the plaintiff Crow allottees’ Winters Doctrine real property rights in water
`
`appurtenant to their individual Indian trust allotments on the Crow Reservation.
`
`59.
`
`The Fifth Amendment to the United States Constitution provides in relevant part
`
`that “[n]o person shall … be deprived of … property, without due process of law; nor shall
`
`private property be taken for public used, without just compensation.” The publication of the
`
`Crow Tribe Water Rights Settlement Act of 2010 enforcement date in the Federal Register on
`
`June 22, 2016, purported to effect an expropriation and extinguishment of the Crow allottees’
`
`Winters Doctrine marketable real property water rights appurtenant to their allotments on the
`
`Crow Reservation without notice, due process of law, just compensation, or for a public purpose
`
`in violation of the United States and Montana Constitutions.
`
`COUNT III
`
` VIOLATION OF THE UNITED STATES’ FIDUCIARY DUTIES TO PROTECT CROW
`INDIAN ALLOTTEES’ REAL PROPERTY INTERESTS IN MARKETABLE INDIAN
`WINTERS DOCTRINE WATER RIGHTS APPURTENANT TO THEIR
`ALLOTMENTS.
`
`Plaintiffs reallege paragraphs 1 through 52, 54, 56 and 57 as though fully stated
`
`60.
`
`herein.
`
`61.
`
`The United States holds real property interests in Indian Winters Doctrine water
`
`rights appurtenant to individual Indian trust allotments in trust for Crow allottees subject to
`
`extensive federal control through statutes, regulations and stated administrative policies. As
`
`
`
`14
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 15 of 17
`
`trustee, the United States has a fiduciary duty to protect the Crow allottees’ property rights in
`
`water from trespass and adverse appropriation by non-Indians.
`
`62.
`
`The United States has a fiduciary duty to identify and quantify Indian Winters
`
`Doctrine rights appurtenant to each of the individual Indian trust allotments on the Crow
`
`Reservation.
`
`63.
`
`The United States and the Crow Tribe negotiated and concluded the 1999 Crow
`
`Water Compact and the Crow Tribe Water Rights Settlement Act of 2010 with no notice to,
`
`consent from, legal representation on behalf of, or participation by the Crow allottees.
`
`64.
`
`The United States as trustee failed to determine the extent of the marketable water
`
`rights held by each individual Indian trust allotment landowner on the Crow Reservation as
`
`required by the 1999 Compact.
`
`65.
`
`The United States, acting as trustee for the Crow allottees, surrendered the Crow
`
`allottees’ individual Winters Doctrine Indian water rights to the Crow Tribe and non-Indian
`
`landowners without notice to the allottees or their participation or consent. It failed to protect
`
`Allottees’ individual water rights by requiring adjudication of individual water rights.
`
`66.
`
`At no time did representatives of the United States or the Interior Department
`
`consult with the allottees about the extent of their allotted land, their historically irrigated or
`
`irrigable property, or their domestic and stock-watering uses and requirements.
`
`67.
`
`At no time were the allottees represented by legal counsel in negotiations with the
`
`state of Montana, the United States or Crow Tribe.
`
`68.
`
`The Allottees have not been represented by legal counsel during the Montana
`
`Water Court proceedings related to the Crow Compact which resulted in a final water rights
`
`decree incorporating the Crow Compact. Allottees were told by Interior Department
`
`
`
`15
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 16 of 17
`
`representatives not to file independent water rights claims before the Montana Water Court as
`
`required by Montana law and were assured by such representatives that their interests were being
`
`protected by the United States as their trustee.
`
`69.
`
`Section 410(a)(2) of the Settlement Act provides that the United States, as trustee
`
`for the allottees, “is authorized and directed to execute a waiver and release of all claims for
`
`water rights within the Reservation and the ceded strip that the United States, acting as trustee
`
`for the allottees, asserted, or could have asserted, in any proceeding, including the State of
`
`Montana stream adjudication, prior to and including the enforceability date, except to the extent
`
`that such rights are recognized in the Compact or this title” “in return for recognition of the water
`
`rights of the Tribe.” The Interior Secretary executed such waivers and releases on April 17,
`
`2012, without notice, due process of law, or consent by the allottees, and in violation of the
`
`United States’ fiduciary duty to protect the allottees’ property rights. By this action, the allottees
`
`are divested of a valuable, marketable property right and are receive no consideration in return.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, the Crow allottee plaintiffs respectfully request that the Court order
`
`judgment as follows:
`
`A.
`
`Issue a declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C.
`
`2201, that the June 22, 2016, publication of the enforcement date of the 2010 Crow Settlement
`
`Act is void and of no effect.
`
`B.
`
`Issue a declaratory judgment that the Crow allottees hold marketable real property
`
`interests in Winters Doctrine water rights appurtenant to their allotments on the Crow Indian
`
`Reservation and in the Ceded Strip.
`
`C.
`
`Issue a declaratory judgment that the United States violated its fiduciary
`
`
`
`16
`
`

`

`Case 1:22-cv-01781 Document 1 Filed 06/21/22 Page 17 of 17
`
`obligation to the allottees and failed to protect their marketable real property interests in Winters
`
`Doctrine water rights appurtenant to their allotments by purporting to waive and release their
`
`water rights by publication of the 2010 Settlement Act enforceability date on June 22, 2010.
`
`D.
`
`Enjoin any further actions by the Interior Secretary to implement the 1999 Crow
`
`Compact and the 2010 Settlement Act.
`
`E.
`
`Award the allottees attorneys’ fees and other litigation costs reasonably incurred
`
`in this action; and
`
`F.
`
`Grant the allottees such other relief as the Court deems just and proper.
`
`Respectfully Submitted,
`
`DATED this June 21, 2022.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`17
`
`
`
`
`
`
`
`/s/ Kelli J. Keegan
`Kelli J. Keegan
`Barnhouse Keegan Solimon & West LLP
`7424 4th Street NW
`Los Ranchos de Albuquerque, NM 87107
`Telephone: (505) 842-6123
`Facsimile: (505) 842-6124
`Email: kkeegan@indiancountrylaw.com
`
`Thomas E. Luebben
`Law Offices of Thomas E. Luebben PC
`21 Star Splash
`Santa Fe, NM 87506
`Phone: 505-269-3544
`E-Mail: tluebbenlaw@msn.com
`Pro Hac Vice Pending
`
`