100 Years after Winters: the immovable object of Tribes’ Reserved Water Meets the Irresistible Force of State’s reserved Rights under the Equal Footing Doctrine

(The author gives special thanks to former students Frank DiCastri, Samantha Webb Kading, Alicia Seyler, and Mary Pfotenhauer.)

Indian Tribes should not own water rights.  Individuals own water rights; sovereigns govern water rights.  Individuals apply for and hold permits to use water; sovereigns issue, deny, or rescind those permits.  Individuals lose water rights by abandonment; sovereigns continue to govern abandoned water rights.  Abandoned individual water rights escheat to the sovereign; the sovereign cannot abandon water rights, but holds public water, including escheated abandoned water rights, in trust for the people and the future, unless and until such water rights are re-issued.  Should tribes be more like individuals who merely own water rights under the property scheme of some other sovereign?  Or should tribes be more like sovereigns with their own authority and power to govern or own water rights within their respective territories and jurisdictions, including the power to vest individuals with ownership?  

American water law has come to treat tribes like mere individual owners of water rights and, in the process, less like sovereigns with the authority and power to govern those water rights within their own territories.  In its early years American law once recognized tribes as independent sovereigns on the international plane.  Over the ensuing two hundred years American law steadily retreated from that position, struggling to fit the sovereign status of tribes and their members into the American federal system, with its national federal government established by the States and their peoples, separate states with a great measure of reserved autonomy, and overlapping citizenries.

Recently, the diminishment of tribal sovereignty has reached a fever pace, treating Tribes as mere subdivisions of States, or worse – not as sovereigns at all, but as mere individuals, at best aggregations of racial or ethnic minorities.  This article contends that the most exquisite view of the respective legal status of Tribes and the States and their federal government can be found at the confluence of two otherwise distinct streams of legal doctrine: first, the body of law now generally known as Federal Indian Law; second, the body of law known as the Equal Footing Doctrine.  Nowhere is this more illustrative than in the field of water law.

Water law has become central to understanding the legal status of Indian Tribes.  Water related cases such as US v. Winans, US v. Winters, and Washington v. Commercial Passenger Fishing Vessel Ass’n, are the backbone of what is often called the “Tribes’ Reserved Rights Doctrine”, the cornerstone of Federal Indian Law.  Persistent international notions regarding Indian treaties, water regimes that differ State by State from the humid east to the arid west, and the vast differences from Tribe to Tribe – all add to the rich complexity.  How these varying factors inter-relate may well decide the fate of Tribes, in and out of the water law context. 

Water law also plays a central role in determining the respective relationship between the federal and State governments.  Water related cases, such as Gibbons v. Ogden, Barron v. Baltimore, Pollard v. Hagen, and US v. New Mexico, are vital to American federalism, evolving a “States’ Reserved Rights Doctrine”, and serving as the cornerstone of the Equal Footing Doctrine.  Therefore, in short, at the confluence of Federal Indian Law and the EFD, the doctrine of reserved rights of Tribes run abruptly into the doctrine of reserved rights of States.  When it comes to competing notions of reserved territorial sovereignty in American law, there is no middle ground.  One of them must concede.

This article argues that the reserved rights of Tribes should always be an exception to the Equal Footing Doctrine and the reserved rights of States.  Such an approach would facilitate a normative relationship between the US, the States, and Tribes, bringing badly needed consistency, predictability, and fairness to the field.  Otherwise, the underlying theory of America’s political system, let alone the legal and political existence of Indian tribes, will continue to be severely tested.

An Indian law subtext

Ever since Europeans discovered that America existed, with people intact, they struggled with finding the appropriate legal and moral methods for interacting with indigenous Americans.  King Charles V of Spain, along with Pope Paul III, commissioned two men to take opposing positions regarding the proper interaction between Europe and indigenous Americans.  Dominican Monk Bartolome de Las Casas argued that America’s indigenous peoples were human, had souls, and at least deserved to be Christianized.  Spanish philosopher Juan Gines de Sepulveda argued that indigenous peoples comprised an inferior race deserving only slavery, subjection, or extermination.  These divergent approaches have traversed the centuries, germinating in the young American republic, forming the basis for Justice Clarence Thomas’ admonition for Federal Indian Law.  “Schizophrenic” 

  This year marks the 100th Anniversary of Winters v. United States, the US Supreme Court opinion that proclaims for Indian Tribes a right to enough water to fulfill the purposes for which their reservations were established – first and foremost to serve as homelands.  Given the scarcity of water approximate to many Indians reservations, especially in the arid west, the right to water is tantamount to a right of survival.  However, while Tribes have repeatedly invoked the case to secure water rights to meet their needs, has Winters really withstood the test of time?

The Winters opinion goes far beyond the significance conventionally attributed to it, holding that Tribes have rights to water, that their priority date to water relates back to the establishment of the reservation, and that they need not have put water to “beneficial use” in American law terms in order to have vested their rights.  Rather, the most remarkable legacy of the opinion is how the Court explained away the State of Montana’s “equal footing” argument.

In some ways, this article will retell the conventional story about Indian water rights law; in other ways, it will use water rights cases in an attempt to bring a fresh perspective to what ails Federal Indian Law.  The only treatise in the field, Cohen’s Handbook of Federal Indian Law, fails even to mention the Equal Footing Doctrine in its Index.  One of the two main casebooks in the field also fails to mention the EFD in its Index, while the other mentions the EFD in its Index, but refers only to notes regarding three specific cases.  [Nutshell?]   Meanwhile, the US Supreme Court has seen fit once again to write at length on the matter in a recent case, several lower courts currently confront the issue, and States continue to make the argument central to their cases.  

Part I of this article will provide a brief but necessary background of States’ reserved rights.  Part II will highlight the evolution of the Equal Footing Doctrine.  Part III will provide the relevant background of Federal Indian Law and Tribes’ reserved rights.  Part IV will expound briefly upon the notion of a federalism relationship between the Union and Tribes, analogous to that between the Union and the States.  Part V will explain where and how the two meet, especially in the context of water law, why they are incompatible and why one must prevail, consistently.  Finally, this article will conclude that this clash of tribes’ and states’ reserved rights, especially in the context of the EFD, has caused, in the spirits of Las Casas and Sepulveda, and in the words of Justice Clarence Thomas, America’s “schizophrenia” as it deals with its first peoples and their respective First Nations.

PART I.  STATES RESERVED RIGHTS: THE IRRESISTIBLE FORCE

 	The doctrine of State reserved rights is a cornerstone of American federalism.  Enshrined in the 10th Amendment of the US Constitution, the doctrine of States’ reserved rights made the inception and evolution of the equal footing doctrine all but inevitable.  This Part will discuss the reserved rights doctrine of the 10th Amendment and its relations to the Equal Footing Doctrine, as a primer for the less consistent Indian law issues to follow. 

Every American schoolchild is taught, in so many words, that the original thirteen states and the American people formed a union while simultaneously maintaining the government of each state.  In retrospect, the main obstacle to forming a central government while retaining state sovereignty is as obvious as the resolution was ingenious.  The obstacle is that two governments with different and sometimes competing sets of laws, policies, norms, and values can not exist in one and the same jurisdiction – that is, in the same territory and over the same peoples – without falling into inevitable conflict with each other, where one or the other would necessarily prevail.

For the Founders, the resolution came in the form of the Supremacy Clause and the 10th Amendment.  In short, the Union would have enumerated powers and the States would retain the vast inherency of powers.  If a law fell within the scope of the central government’s enumerated powers, then Union’s law would prevail over any conflicting State law.  On the other hand, if the issue fell outside the scope of the central government’s enumerated powers, then the States would remain free to govern.  Over time this logic came to support simultaneous governance by the both States and Union, so that if the Constitution granted a power to the central government but the grant was not exclusive to the union nor prohibitive to the states, then both the Union and States could govern, as long as actual conflicts are decided accordingly.  This latter concept has provided arguably the most evocative development of modern constitutional jurisprudence – what has come to be known as the “independent and adequate state grounds” doctrine.

Nonetheless, the theory and logic of state reserved rights was quickly tested in practice.  It is one thing to say the original thirteen States formed a union and reserved powers to themselves; it is quite another to say that thirty-seven States that did not precede the Union somehow reserved something from the union, especially those States whose founding truly depended upon the Union.  For example, while it did not join the Union along with the original thirteen States, Vermont can justifiably claim that it had already been in existence when it did join the Union, and thus reserved rights from the Union when it finally did join.  With a similar twist, Texas can claim that, even while it did not pre-exist the Union, it nonetheless established itself independently of the Union and joined of its own free will and in a position to reserve rights upon joining the Union.  But what about North Dakota?  In other words, what about a State which was established not according to exigent geographics or demographics, but which in reality was established by the Union itself, out of territory acquired and held by the Union and carved with straight-line boundaries into several States?  Does an argument of pre-existence or independent existence really help North Dakota?   

While the facts would suggest no, the Equal Footing Doctrine says yes.  Using the logic of the 10th amendment, even North Dakota is the source, the grantor, and thus the reservoir, of its own sovereignty.  Writing about the independent and adequate state ground doctrine, Professor and former Chief Justice of the Oregon Supreme Court Hans Linde wrote an law review article entitled “First Things First”, wherein he explained the idea of States’ rights as “first in time and first in logic”.  Linde argued that State reserved rights are compelled not only by pre-existence, but by the logic of democracy itself.  In a democracy, even a federal representative democracy, sovereignty comes from the people, or the state, state by state, and decidedly not from a union of states.

Under Linde’s theory, whatever sovereign authority the people of Virginia possess to give to their state government, the people of North Dakota inherently possess to give to theirs.  In this context, if no other, the American axiom that “all men are created equal” has meaning.  Regardless of which came first; regardless whether one in fact precedes the other, the logic of democracy requires the conclusion that the States and their peoples were the grantors of sovereignty, that the Union was the grantee, and that what was not granted to the Union was reserved by the States or to their people to be exercised as they see fit.  That logic is the cornerstone of American federalism, especially the cornerstone of prevailing States’ rights theory in the face of a juggernaut federal government.  In that sense, the logic of States’ reserved rights is the basis of the Equal Footing Doctrine. 

PART II.  THE EQUAL FOOTING DOCTRINE

	The Equal Footing Doctrine (“EFD”) has a long history in American law.  The continental Congress raised the concern as early as 1780.  In 1787, the Northwest Territorial Ordinance, which defined territories northwest of the Ohio River, declared, “Such state shall be admitted, by its delegates, into the congress of the United States, on an equal footing with the original states, in all respects whatever ….”  In 1783 Virginia ceded to the Union all its claims over northwest lands, contemplating the establishment of new States “having the same rights of sovereignty, freedom and independence as the other States.”  During the founding debates James Madison decreed, “[T]he Western States neither would nor ought to submit to a union which degraded them from an equal rank with the other States.”

	Not everyone, however, agreed that subsequent States should be equal to the original thirteen.  Governor Morris, for one, led a successful charge to strike from the Constitution a provision declaring that new states should “be admitted on the same terms with the original states”.  Nevertheless, the EFD took root and was included in federal statehood acts such as Wisconsin’s, which reads: “to form a constitution and state government, for the purpose of being admitted into the Union on an equal footing with the original states in all respects whatsoever.” 

Because of the Commerce Clause, the EFD has always been most relevant in water related matters.  Under the common law of England, the King held title to all submerged lands in trust for the kingdom.  After the American Revolution, the new states became successors in interest to the Crown, now holding the submerged lands in trust for their own peoples.  However, in the Commerce Clause, the original thirteen states and their peoples granted to their new Union the power to regulate commerce “among the States”.  At the time most interstate commerce involved navigable waters, and this grant of authority was soon interpreted as a federal “servitude” upon any navigable rivers that flowed between and within the States.  Thus, while the EFD has been invoked in various contexts, those controversies involving navigable lakes and rivers have been sacrosanct.  Incidentally, those cases also illustrate best the related Federal Indian Law issues.

In Gibbons v. Ogden, the Supreme Court ruled that the Commerce Clause grants the Union plenary power over States to regulate interstate commerce.  Gibbons states: 

“In argument, however, it has been contended, that if a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the Constitution, they affect the subject, and each other, like equal opposing powers.  But the framers of our constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws in pursuance of it.  The nullity of an act, inconsistent with the Constitution, is produced by the declaration, that the Constitution is the supreme law.  The appropriate application of that part of the clause which confers the same on laws and treaties, is to such acts of the State legislatures as do not transcend their powers, but though enacted in the execution of acknowledged State powers, interfere with, or are contrary to the laws of Congress, made in pursuance to the Constitution, or some treaty made under the authority of the United States.  In every such case the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in exercise of powers not controverted, must yield to it.”

The very same Commerce Clause by which the original States granted to the Union exclusive power to regulate interstate commerce also grants exclusive federal power over States to regulate commerce with Indian tribes.  Indeed, the list of treaties referred to in Gibbons includes treaties with tribes as well as foreign states.  Predictably, just as the States’ rights tradition often disagrees with exercises of federal power under interstate commerce clause, it also disagrees when the federal government infringes on State sovereignty when it invokes the Indian commerce clause.  In that sense, Indian tribes become just another “federalism football” in Union/State federalism battles.

	As the American juggernaut launched, the Union acquired vast expanses of territory for future American States, through treaties and agreements with foreign states, Indian Tribes, and arguably, even with existing States of the Union.  America’s western experience, rather than evolving naturally as the eastern seaboard had, succumbed to the newfound power, urges, and ability to grow an empire by creating new states.  It was, arguably, one development where the new American federal system faltered.

It was this process of “creating” states which became the grist for Equal Footing Doctrine tensions.  After acquiring territory but before creating new States out of it, the federal government often granted federal land patents to private individuals or corporations within the territory.  This practice particularly irked the new States if the federal patent included submerged lands under navigable waters.  While federalism and EFD tensions arose in any number of substantive contexts, no disputes raised the States’ ire more than those involving submerged lands and water.

To exacerbate the matter, a new State would sometimes grant title to the exact same parcel of land as a prior federal patent had.  In the inevitable ensuing disputes, the federal government, or its grantees, argued that the federal navigational servitude deriving from the Commerce Clause had allowed the federal government either to hold submerged lands in trust for the State or to grant patents to it to private parties.  For their part, the new States argued that the federal government had not granted patents to submerged lands in the original thirteen states, and so could not do so in the new States.  Instead, they argued that the federal government was limited to holding submerged lands and waters in trust for future States.

	 A series of such cases illustrates the development of the Equal Footing Doctrine with particular significance to Federal Indian Law.  In 1833, in US v. Percheman, which is not an Indian law case, the Court developed perhaps the most critical concept for ultimately understanding Federal Indian Law.  Before the US acquired the territory that would become Florida, Spain had granted patents to private citizens there.  In Percheman, the Court interpreted a treaty of cession between the US and Spain, along with a federal implementing statute, as validating the Spanish titles, forcing the State of Florida, upon admission to the Union, to recognize them.  Questions remained, such as whether a treaty, by itself, could require a State or federal courts to recognize a foreign title, or whether a federal implementing statute was required in order to “confirm” recognition.  Two things, however, were clear: 1) Florida admission to the Union did not rest upon the same factual foundation; and 2) Florida’s admission to the Union did not by itself abrogate the Spanish treaty.  These two conclusions would come to play key roles in Federal Indian Law.

To many, Percheman also seemed to turn the logic of the Tenth Amendment on its head.  The opinion implied that the federal government had reserved rights from the State, instead of vice-versa.  According to Percheman, even though Florida was admitted to the Union on an equal footing with previous States, the manner in which the federal government acquired the territory, through bargained-for treaty obligations, meant that the State had no option but to be admitted on a different factual basis.  But did that mean that Florida was not equal to the original States as a sovereign?  

Not necessarily.  In large part, the answer depends on whether sovereignty over land means “ownership” or “dominion”.  The Court in Percheman ruled that Florida was obliged to recognize the Spanish title; thus Florida simply could be deemed the “owner” of the property.  However, the Court did not say that Florida did not have jurisdiction – governance – over the property.  The problem is that the Court also did not explicitly affirm that Florida would have jurisdiction over the property.  The distinction between jurisdiction and ownership has sometimes been lost on the Court in EFD cases, confusing the concepts of property and territory, a confusion which would become a fundamental sticking point in Federal Indian Law.

In 1845, in Pollard v. Hagen, a treaty between the US and Spain once again presented EFD issues by granting patents to private owners.  One key fact in Pollard is that the property at issue included a riverbed below the high water mark, the area that would have been traditionally held in trust by the King and then by the new States.  Buoyed by this fact, the Pollard Court, speaking through Chief Justice Taney – a decidedly different Court from Marshall’s in Percheman – upheld the EFD over the treaty, holding that ownership of bedlands of navigable waters passed to the State upon its admission.      

Nevertheless, Pollard did not reverse Percheman, but distinguished it on a couple grounds that remain important for Federal Indian Law.  First, the Court distinguished between submerged lands and surface lands for purpose of the EFD, a seemingly minor matter that has caused inordinate confusion ever since.  The distinction is really without a difference, since the EFD applies to all lands in the new State, not just submerged lands.  But the distinction does illustrate the sacrosanct nature of submerged lands.  Second, the Court in Pollard distinguished Percheman by explaining that Percheman involved a title that had been federally granted and confirmed before statehood, whereas Pollard involved a title that had been granted before statehood but not federally confirmed before statehood.

In some ways then, Pollard did not necessarily mean that statehood, and thus the EFD, undermined the treaty; rather, Pollard can be read for the limited proposition that the Spanish titles were unenforceable because Percheman required Congress to confirm the Spanish titles before statehood, which Congress had failed to do.  Consquently, the Court simply ruled that Alabama was not obligated to recognize Spanish treaty-reserved titles if the patent to which had been issued post-statehood.

Even with the additional confirmation requirement, Pollard can be read otherwise to have sustained Percheman, in that the federal government could issue treaty-required, pre-statehood federal patents which the State would be obliged to abide.  Nevertheless, the ruling that the federal government could not issue post-admission patents remains an important part of the analysis, especially in Federal Indian Law where the federal government has issued thousand of fee “trust” patents to individual Indians, causing the states to argue that they now govern any private real property held by Indians, even within Indian reservations.

  In one unfortunate aspect, Pollard wholly comported with Percheman.  The Court again failed to explain that the State’s subsequent jurisdiction over the property was not in question, but simply whether the State was obligated to recognize the property upon attaining statehood.  This oversight allowed the confusion to fester whether sovereigns merely own property or also govern the territory within which the property sits.  And again, as this article latter explains, the confusion has much to teach Federal Indian Law. 

In a similar matter in 1850, in Goodtitle v. Kibbe, Chief Justice Taney wrote about Pollard: “Undoubtedly Congress might have granted this land to the patentee, or confirmed his Spanish grant, before Alabama became State.  But this was not done.”    In other words, Goodtitle clarifies that Pollard reaffirmed Percheman in holding that Congress could issue a federal patent or confirm a treaty-recognized foreign patent, before statehood, which the new State would then be bound to abide.  (((This time, however, the Court made clear that the state would then govern it.))))

	Meanwhile, across the continent, the United States had been acquiring territory by treaty from Mexico that soon became Texas, Arizona, New Mexico, and California.  Prior to ceding territory to the US in the treaty, Mexico had granted land patents within the territory.  Thus, when California attained statehood, several similar disputes arose.

The Treaty of Guadalupe Hidalgo provided in Article VIII: “Mexicans now established in territories previously belonging to Mexico, and which remain for the future in the United States, shall be free to continue where they now reside … retaining the property which they possess in said territories ….”    

Implementing the Treaty of Guadalupe Hidalgo and providing for orderly settlement of Mexican patent claims, Congress passed the Act of March 3, 1851, confirming the patents and establishing procedures for claims.

In US v. Pacheco,  in 1864, the Supreme Court was squarely presented with the question whether the federal government could issue a patent to submerged land in navigable waters – in this case tidelands.  The Court, however, managed to dodge the issue by its reading of the facts.  The Court reiterated that the State was bound by such a treaty provision, especially if confirmed by federal law, and that statehood in and of itself did not abrogate the treaty and its property provisions.  However, the Court also held that the submerged tidelands passed to California, echoing the reasoning that the federal government had held the tidelands in trust for the future State.  Avoiding a pickle, the Court interpreted the Mexican patent as not including tidelands because it had used the words, “bounded by the bay”, which the Court interpreted as meaning “above the high water mark”.

At this juncture, the Percheman to Pacheco line of cases stands firm for the proposition that pre-statehood federal patents to lands above the high water mark would bind a new State.  In that sense, State’s rights and the EFD had simply retreated to hold the line at the most traditional of state lands – tidelands below the high water mark.  Meanwhile, the unexplicated question of governance continued to loom large.

In 1891 the Supreme Court decided two cases that resurrected a critical concept for understanding the federalism tensions – and Federal Indian Law.  In San Francisco v. LeRoy, and Knight v. US Land Association, the Court issued opinions that undermined the EFD and States’ rights.  In Knight the Court invoked the EFD and then wrote, “[T]his doctrine does not apply to lands that had been previously granted to other parties by the former government, or subjected to trusts which would require their disposition in some other way.”  The Court then held that when the US acquired California from Mexico by treaty, the federal government itself, never mind the State, was bound by the treaty’s stipulations to protect all private property acquired directly from the Mexican government.  While the entire Percheman line of cases suggests otherwise, Knight and LeRoy seized upon the EFD’s retreat and held that a pre-Statehood grant from a foreign state did not require confirmation by Congress to bind the new State.

	In 1894, in the seminal EFD case of Shively v.Bowlby, the Court made a valiant attempt to address the confusion and to quell the tensions.  In Shively, the facts were such that the federal government had acquired the territory out of which it would subsequently carve the State of Oregon.  No prior sovereign had issued patents in the territory, and thus no treaty of acquisition sought to bind the US and the State to recognize private property.  In that sense the case presented the limited scenario of a stand-alone, pre-statehood federal patent, helping the Court to focus upon matters of dominion and ownership, territory and property.  

Before Oregon was admitted into the Union, the federal government, pursuant to the federal “Land Donation Act”, gave to Mr. Shively a patent to certain parcels, including tidelands below the high water mark of a navigable river.  Shively in turn subdivided the grant, conveying certain parcels to plaintiff grantee (Bowlby), and conveying other parcels to Defendant grantee.  Subsequently, grantee Bowlby desired to build a wharf, but his plan would require more land than his grant from Shively offered, so he acquired additional lands from the State of Oregon.  In the process, he also had his deeds from Shively re-issued or “confirmed” by the State of Oregon, especially the deed for the tidelands.  Although neither Shively nor the Defendant grantee (also a Shively) had obtained a deed from the State for the adjacent tidelands, as Bowlby did, Defendant Shively nonetheless also claimed tidelands.  The inevitable legal disputes ensued over the practical ability of each owner to “wharf out”, pitting Shively’s federal patent against Bowlby’s State deed.

Mr. Shively’s argument to the Court presaged the issue that would help clarify the EFD.  Enumerating lower court error, he wrote: “Second, The Supreme Court of Oregon decided that it was the absolute owner of all rights in front of the high land granted by the United States to said grantee … to the exclusion of all rights of the grantee … under the act of Congress of September 2, 1850.”  In extrapolating upon this finer point – sovereign ownership versus sovereign dominion – the Court found the real purpose of the EFD. 

First, the Shively Court paid homage to Goodtitle v. Kibbe, echoing Justice Taney’s dictum: “We cannot doubt, therefore, that Congress has the power to make grants of lands below high water mark of navigable waters in any Territory of the United States, whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several States, or to carry out other public purposes appropriate to the objects for which the United States hold the territory.”  However, at this point the Court had already distinguished Shively from Pollard and Goodtitle on the facts, stating about Pollard: “So much of the reasoning of the learned justice [referring to Taney in Pollard], as implied that the title in the land below high water mark could not have been granted away by the United States after the deed of cession of the territory and before the admission of the State into the Union, was not necessary to the decision, which involved only a grant made by Congress after the admission of Alabama ….” (emphasis added)  In doing so, the Court recognized that Shively presented a case almost of first impression, or at least still impressionable, of a pre-statehood patent to submerged lands directly from the Union itself.  Ironically, federal obligations that derived from treaty provisions in Percheman and Pollard morphed into a federal power even without a treaty in Shively.  As this article later explains, this irony comes home to roost in Federal Indian Law as Winters becomes justification for an expansive, so-called “federal reserved water rights”, all the while actual Indian treaty reserved Winters’ rights get whittled away. 

The Shively Court also paid homage to LeRoy and Knight, if only also to distinguish them on the facts.  With no treaty or other “international obligations” at issue as in those cases, regardless whether requiring confirmation, the Court ruled that while Congress could enact a general authority for granting pre-statehood title to the tidelands, it in fact had never done so, and thus readily disposed of Shively.  In reaching this holding, however, the Court finally drew upon a set of important distinctions: 1) between territory and property; 2) between ownership and governance; 3) between occupancy and dominion.  Painstakingly summarizing the law of each of the original States for purposes of applying the EFD, the Court noted that “there is no universal and uniform law upon the subject, but that each state has dealt with the lands … according to its own views of justice and policy, reserving its control … or granting rights therein to individuals or corporations, whether owners of adjoining upland or not, as it considered for the best interests of the public.” (Emphasis added) 

In other words, the EFD does not mean that the ownership patterns in all the States must be exactly the same, or even that all States must deal with ownership matters in the same way.  Instead, the Shively Court’s EFD analysis was not about ownership, but about control, recognizing that each State had the equal right to govern – differently.  As the Court concluded, “The later judgments of this court clearly establish that the title and rights of [owners] in the soil below high water mark of navigable waters are governed by the local laws of the several States.”  One such case, referring to pre-statehood titles, declared, “that property, like all other property in the state, is subject to state legislation, so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.”  Finally, the Court made clear that the EFD was less about whether a State “owned” property, even tidelands, and more about whether the State governed it, which remains the focus of the EFD.   Thus the critical need in Federal Indian Law to read Tribes’ treaty reserved rights not as ownership of private property, but governance of private property – in short – as territorial sovereignty.  

Shively reiterated the exceptions to the EFD first enunciated almost a hundred years earlier but which had never really obtained.  Despite distinguishing them, Shively nonetheless quoted from Justice Taney’s opinions in Pollard and Goodtitle: “Congress has the power to make grants of lands below the high water mark of navigable waters in any Territory of the United States whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several states, or to carry out other public purposes appropriate to the objects for which the United States hold the territory.”  Because neither a treaty nor Congress had required it, the Court dodged a bullet in Shively.  It would be nearly another hundred years before the Court finally accepted the challenge.

In the interim, however, the Supreme Court further clarified the distinction between ownership and governance regarding the EFD.  In Stearns v. Minnesota, the Court ruled that an express promise extracted from a State upon admission is enforceable even if the original thirteen States had never done so.  Invoking Shively’s winded summation of state law, the Stearns Court declared that a “mere agreement in reference to property” invokes “no question of equality of status”.  While the federal government may have granted or confirmed a patent to property within the pre-statehood territory which the State must uphold, still, upon admission to the Union, the new State assumed governance over the property.  

Finally, in 1984, triggered by an attempted taking by the State, the Court decided Summa Corporation v. California, addressing yet another pre-statehood, treaty-protected, federally-confirmed patent for submerged lands.  The Supreme Court held that California was obliged to recognize the title, despite its governance, ruling that California must provide eminent domain procedures and pay just compensation to take the land.  Even so, the 10th Amendment, reserved rights, and EFD all prevailed, as the State retained its territorial sovereignty and jurisdiction over the corporation’s property.  The requirement to provide due process and just compensation simply reflected the state of the law for all States.

Thus, the evolution of the Equal Footing Doctrine, especially regarding sacrosanct tidelands, went from its purest form – all state governance and ownership free and clear of all improvements or encumbrances – to having certain exceptions to state “ownership” regarding commerce or actions taken pursuant to the commerce clause – namely treaties with foreign nations.  But more importantly for the States, regardless under whose sovereignty and jurisdiction the patent issued – whether from Spain in pre-Georgia, or from Georgia in pre-Alabama, or from Mexico in pre-California – the State would subsequently govern.

These developments now bring Federal Indian Law into sharp focus.  What did tribes reserve in Indian treaties – ownership or governance or neither?  Could a tribe, like Spain and Mexico, have included an “international obligation” in a treaty requiring the federal government and new states to recognize its land patents?  After all, Spain and Mexico don’t claim to continue to govern in the US.  Would it matter if the land at issue included submerged lands in navigable waters?  Would the 10th Amendment and the EFD mandate that the State governed?  Could the State have agreed not to govern in its federal enabling and statehood acts.

On the theoretical level, the EFD massages an inconvenient truth into the 10th Amendment.  The textual legitimacy of the 10th Amendment depends upon the fact that states pre-existed the Union.  The fiction is that the 10th Amendment applies to new states that did not in fact pre-exist the Union.  Fictional or not, the EFD and the logic of the 10th Amendment is the glue that holds America’ federalism together.  Can there really be room for an exception for Indian tribes?

PART III.  TRIBES’ RESERVED RIGHTS: THE IMMOVABLE OBJECT

In its first case on the status of Indian Tribes, the Supreme Court, with no small degree of trepidation, tested the idea that the US relationship with Tribes was a relationship between sovereigns, a prerequisite to applying the democratic logic of Tribes’ reserved rights.  With a nod, at the very end of his written opinion in Fletcher v. Peck, Chief Justice John Marshall reiterated counsel’s argument that a land deal with a Tribe “depends upon the law of nations, not municipal right. *** It is a right regulated by treaties, not by deeds of conveyance.”  These events were between sovereigns, not between a government and private owners.  The legal interest conveyed between sovereigns is not property, but territory.  The logic of this first case germinated the idea that any legal interest granted or reserved in those treaties would involve the governance of territory, not the ownership of property.

A few years after Fletcher decided that Tribes possessed the sovereign power to cede territory, the Supreme Court again acknowledged that Tribes possessed uniquely sovereign attributes – this time the power to issue and to take private property within their territories.  In Johnson v. M’Intosh, the Tribe had conveyed property within its territory to Johnson.  Subsequently, the Tribe then conveyed the territory, including Johnson’s property, to the US.  The US, in turn, issued a patent to M’Intosh which overlapped with the property that Johnson believed he still owned.  In other words, Johnson’s claim arose not only from a pre-statehood grant similar to that in Shively, but from a pre-Union grant, similar to that from Mexico in the Pacheco and Summa Corp. cases.  However, unlike Pacheco or Summa, the treaty did not expressly preserve the Tribe’s grant to Johnson’s property, and thus the Congress had no “international obligations” to confirm Johnson’s property interest.  As a result neither the federal territorial court nor the subsequent new State court had any obligation to sustain Johnson’s property. 
  
This juncture is critical in crystallizing the inquiry necessary to read Johnson correctly.  Could the Tribe have preserved, in the cession treaty, the title it had granted to Mr. Johnson?  Could the tribe have expressly obligated the federal government, and thus the State, to oblige Johnson’s property, just as Mexico had done in Pacheco and Summa?  After all, as self-serving as America’s actions appear – to disengage where America stood to benefit from disengagement – the Court made the right decision in Johnson.  The Court held that the property interest that the Tribe had issued to Mr. Johnson within its own territory was not sustainable in US courts.  Similarly, the Court ruled that the Tribe’s subsequent taking of that title [upon transfer to the federal government] was not amenable to US jurisdiction.  Instead, the Court said, the US was bound to recognize only the sovereign-to-sovereign transfer of the territory from the Tribe to the US.  In other words, the territorial transfer correctly invoked, as Fletcher had earlier stated, “the law of nations, not municipal right.”

Many scholars read Johnson to hold that Tribes cannot give title, attributing to Chief Justice John Marshall conquest, racism, and all that.  In turn, that interpretation has caused a distinct analysis of the entire field of Federal Indian Law.  Nobody argues that Percheman and Pollard stand for the proposition that Spain cannot give title and thus is somehow not sovereign.  Rather, those cases are read simply to decide whether Spain’s title, granted within territory later ceded to the US by treaty, is sustainable under American law, a decidedly different inquiry.  If Marshall had said in Johnson – “Yes, tribe, you are capable of giving a title to private property, and yes, tribe, you in fact did give a title to private property, and then, tribe, you exercised a taking of that title when you transferred the territory to us without expressly reserving that property.  Therefore, Tribe, you owe Mr. Johnson some cash.” – would those scholars then be happy?  Thankfully, the cases attempting to do just that – impose the federal Bill of Rights on Tribes for a taking of private property – were a few years off at that point.  The fact of the matter is that the Tribe did not reserve and protect the private title it had granted, and so the Tribe’s title could not be sustained in the courts of this country, which is, after all, the question the Court entertained.

Therefore, Johnson elucidates an important distinction between developments in Federal Indian Law and those under the Equal Footing Doctrine.  Spain attempted to preserve the legal status of private property grants, intended to be held entirely within the territory of a new State, and wholly subject to the new State’s governance.  On the other hand, the various tribes have attempted to reserve both property and territory.  For example, off-reservation hunting and fishing treaty rights, intended to be held entirely within the territory of a new State, are analogous to Spain’s private property patents.  One complication is that while Spain “reserved” rights in individuals, the Tribe attempted to reserve rights in the Tribe itself, thus including a measure of governance, even outside the reservation.  Even more to the point, the tribes reserved on-reservation rights, not least of which was the homeland itself, not ironically called a “reservation”, with no analogy to Spain’s treaties.  Thus, the EFD should not have the same effect in the analysis of Tribes’ reserved rights as it did to Spain’s treaties. 

In Cherokee Nation v. Georgia, twenty-one years after Fletcher and still under the tutelage of John Marshall, the Supreme Court again upheld Tribe sovereignty while avoiding a clash with the fledgling States.  In fact, the Court painted Tribe sovereignty with a familiar brush, declaring in an obvious tone: “We have always referred to them as a state.”  While the posited issue was whether the Tribe constituted a foreign state as that term is used in the US constitution, so as to be able to invoke Article III federal jurisdiction in a lawsuit against the State, it also necessarily begged the question whether the Tribe might be a domestic State, which also would have justified federal jurisdiction.  Thus hemmed in, Marshall promptly determined that the Tribe, while a “state”, was neither a foreign state nor a domestic State – which of course leaves little middle ground.  Thus lacking jurisdiction, with a stroke of genius that only a superpower-to-be could muster, Marshall decreed that Tribes were “domestic dependent nations.”  

Marshall’s sleight of hand might have won the battle, but the war continued.  Only one year later, and no longer able to gracefully sidestep the inevitable federal-state-tribe collision, the Supreme Court decided Worcester v. Georgia, declaring emphatically that the laws of a domestic state, Georgia, could have no force or effect within the territory of a domestic dependent nation, Cherokee.  Again, the Court intimated that the respective sovereign spheres of the Tribe and the US would necessarily overlap.  However, the Court made clear that the overlap would be on the federal, as opposed to the State, level, holding that the laws of Georgia would have no force or effect within the Territory of the Cherokee Nation.  

This development cannot be overlooked for its significance to Federal Indian Law.  In these early cases it became clear that in the Commerce Clause the States had granted to the Union the exclusive power to deal with Indian tribes, including for land acquisition purposes.  In other words, the crucible of American federalism since Gibbons v. Ogden, the interstate commerce clause, had been imported into the relationship between the Union, the States, and the Tribes through the Indian Commerce Clause.  That Federal/State/Tribe triangulation of federalism ensured that the arguments of both de Las Casas and Sepulveda, as antithetical as they are, would find a home in American law, swinging with the pendulum of federalism throughout American history, and exacerbating the showdown between States’ reserved rights and Tribes’ reserved rights, especially in the context of the Equal Footing Doctrine.

For seventy years after Worcester a relative lull in Federal Indian Law activity followed this early flurry, but not because of a lull in interaction between the sovereigns.  Rather, the normative framework laid out in those early cases facilitated a fever-paced, yet orderly acquisition of territory and the expansion of America.  Before the federal constitution was ratified, George Washington argued that America’s relations with tribes should be guided by the international method of treaty-making.  In the post-Worcester period over eight hundred treaties were negotiated and over three hundred ratified by the Senate.  In fact, the next wave of foundational Indian law cases would arise due to the vagaries of water based upon those treaties.

	Where Worcester had sown the seed of reserved rights logic for tribes against States’ rights, two cases involving water rights in the early twentieth century presented a showdown, first, in US v. Winans, and then in Winter v. US.  Winans involved a treaty wherein the tribes ceded an expanse of territory.  The treaty, however, contained provisions describing Indian access to certain fishing areas within the ceded territories, in other words both shorelands and tidelands.  Subsequently, the federal government and the State issued patents to private property, and the subsequent individual owners’ use of their property obstructed the Tribe’s treaty-recognized access to the fishing areas.  Culminating the ensuing legal battles, the Court ruled that the treaty reserved right was intended to be continuing against the US and its grantees and the State and its grantees.

The Winans opinion contains the clearest statement in all of Federal Indian Law regarding Tribes’ reserved rights.  The Court wrote: “In other words, the treaty was not a grant of rights to the Indians, but a grant of rights from them – a reservation of those not granted.”  The Court also added, “The reservations were in large area of territory and the negotiations were with the tribe.  They reserved rights, however, to every individual Indian, as though named therein.”  The Winans statement mirrors the 10th Amendment, in wording and logic, with the sentence referring to individual Indians even reflecting the 10th Amendment’s equivocation regarding “or to the people.”  Winans reiterated what Worcester had intimated seventy years earlier – that the logic of American federalism – of republican democracy – would guide the sovereign relationships with Tribes just as it did between the Union and the States, that the US would be the grantee, and that the Tribes and their peoples would be the grantors and thus the reservoirs of sovereignty in their legal relationship with the United States?

Winters presents a peculiar twist on Winans.  In Winters the US and the Tribe first established a treaty relationship in 1855, and subsequently a reservation territory pursuant to a written agreement in 1888.  However, after only a few years, upstream water diversions by non-Indians left the Tribe’s reservation short on water.  Even though neither the 1855 treaty nor the 1888 agreement expressly mentioned water, the Supreme Court construed an implied reservation of enough water to fulfill the purposes of the reservation.  In other words, just as the 10th amendment holds that the States impliedly reserved the vast inherency of sovereignty, the greatest significance of Winters rests in its the analogy that Tribes also impliedly reserved the vast inherency of sovereignty within their territories, in disregard of express reservations.

Both States in those cases, Washington and Montana, made EFD arguments, and in both cases, the tribes treaty reserved rights provided an exception to the doctrine.  It is safe to conclude that, from the early cases through modern treaty cases such as the treaty fishing rights disputes in Washington, Wisconsin, and Michigan, the doctrine of reserved rights for Tribes has played almost as illustrious a role in American law as the doctrine of reserved rights for States.  To be sure, in order to survive, the Tribes rely on democratic logic just as the States do.  Indeed, the expansion of the American West depended upon the interplay of the two doctrines.  But now that the west is fully expanded, the doctrine of States’ reserved rights, as applied through the Equal Footing Doctrine, has found a new friend in a States’ rights-oriented federal court system.

PART IV.	FEDERALISM AND AN EQUAL FOOTING DOCTRINE AMONG TRIBES

The analysis, heretofore, of States’ and Tribes’ reserved rights demands a query or two.  First, if the sovereign spheres of the Union and the Tribes overlap just as the sovereign spheres of the Union and the States overlap, shouldn’t the same Union/State tensions over dual government also apply to the Union/Tribe relationship?  In other words, if “one and the same legislature cannot exist” for Union and States, can it really be any different for Union and Tribes?  Second, if, in the Union/State relationship, one or the other must reign supreme where they inevitably conflict, or “necessarily triumph in the fullness of dominion”, wouldn’t this logic also apply to the Union/Tribe relationship?  Third, if democracy dictates that the vast inherency of State sovereignty ensures the “indestructibility” of the States, shouldn’t democracy dictate the same conclusion for Tribes?  Or does democracy not apply to Tribes?  Don’t the people of the Lac du Flambeau Chippewa possess as much inherent sovereignty to give to their government as the people of South Dakota possess to give to theirs?  Or are men not created that equal?  And finally, if the application of that democratic, reserved rights logic dictates that all States are equal, in political and legal terms, if not in population, geographical size, or economic strength, shouldn’t that logic also apply between States and Tribes, and even between Tribes themselves?

A.	A Federalism Analogy for Tribes.

This writer has addressed elsewhere the inescapable analogue between the Union/State and the Union/Tribe relationships.  Suffice it say here that it begins with the similarity, in wording and in logic, between the 10th Amendment and the above-quoted language in Winans.  From there the analogy continues in a variety of contexts:  Double jeopardy does not attach in subsequent criminal prosecutions arising out of the same incident between the Union and the State, and between the Union and the Tribes.  The federal Bill of Rights does not apply directly against State government, and the federal Bill of Rights does not apply directly against a Tribe government.  The Fourteenth Amendment now generally applies the federal Bill of Rights to States, often against their opposition; the Indian Civil Rights Act now generally applies the federal Bill of Rights, often against their opposition.  States assert their jurisdiction, and inversely stave off federal jurisdiction, by invoking consensual relationship tests, and so do the Tribes.  Both State and Tribe have a substantial, federal court-recognized, measure of police powers.  The federal courts will stay its hand requiring exhaustion of State court remedies, and will do the same for tribes. 

In short, the Union/State relationship is remarkably similar to the Union/Tribe relationship.  It should surprise nobody that American jurists would bring the distinct notions of American democracy to bear in any scenario, including the point of contact between America and Tribes.  As American law, especially through the courts, has evolved “Our Federalism”, so too has it established “Our Other Federalism” between the Union and Tribes.  The law has stopped short of saying that, within this Union, State and Tribes should be on an equal footing, but shouldn’t democracy would require it?  Whatever compelling arguments States make regarding the Equal Footing Doctrine, Tribes make the same arguments about their reserved rights.  Sure all State’s would like to be treated equally, but the expansion of the country belies that fact.  Why should the country’s first nations lose democracy, sovereignty, reserved rights, whenever the twain clash? 

B.	An Equal Footing Doctrine Among Tribes

The matter of equal footing between Tribes is admittedly at the margins of the purpose of this paper; however, it adds a necessary building block after discussing equality among States and a federalism analogy among States and Tribes.  Throughout its history, America encountered myriad tribes of varying capacities, economically and militarily.  Treaties and other legal documents reflect the varying bargaining positions among the Tribes.

  In 1871 the US House of Representatives attached a rider to legislation calling for the end of treaty-making with Tribes.  Nevertheless, vast territories were subsequently acquired throughout the west.  Without the treaty mechanism, the federal government used other mechanisms to acquire Tribes’ territories, including “agreements”, Executive Orders, inverted land grants.  Several Supreme Court cases distinguished between Tribes with treaties and those without treaties.  The case law was inconsistent, generally concluding that an unlawful US acquisition of treaty-reserved lands gave rise to compensable land claims while non-treaty lands did not, and that a Presidential land “grant” subsequently “re-acquired” by the US did not give rise to a compensable claim, but that an unlawful re-acquisition of land recognized pursuant to Executive Order did give rise to a compensable claim.  The inconsistencies created the perception that different Tribes had different, unequal legal positions under American law.

When Congress finally attempted to deal comprehensively with Tribes as governments, in the Indian Reorganization Act of 1934 (IRA), this inconsistent history dictated many of the terms.  Specifically, section 16 of the IRA provided:

“Any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, which shall become effective when ratified by a majority vote of the adult members of the tribe, or of the adult Indians residing on the reservation, as the case may be….” (Italics added)

Given the ambiguities caused by the language in italics, the Solicitor General almost immediately crafted an opinion interpreting the IRA, and his opinion was laden with perceived unequal legal positions of different Indian tribes.  In short, the Solicitor read that short paragraph as contemplating three kinds of tribes: 1) historically recognized tribes; 2) Tribes that would be comprised of multiple tribes residing on the same reservation; and 3) remnants of any number of historic tribes who were now individual adult Indians residing on land set aside for them.  The first category contained tribes with treaties and reservations with well-defined boundaries.  The second category included the Three Affiliated Tribes of Mandan, Hidatsa, and Arikara of the Fort Berthold Reservation or the Confederated Tribes of the Warm Springs Reservation.  The third category included tribes and Indians residing within a “rancheria” in California or in a “colony” in Nevada or Oregon.
  
Over time Tribes in the first category were labeled “Historic Tribes” and those in the second and third categories were labeled “Created Tribes”.   Before long the Bureau of Indian Affairs (BIA) added a fourth category to the created tribe column – tribes that had had a diaspora, where part of tribe was removed and part remained, such as the removed Cherokee Nation of Oklahoma and the remaining Eastern Band of Cherokee surrounded by North Carolina.  In fact the BIA would have completely de-recognized one faction or the other, as it tried with the Choctaw, but the Supreme Court decided in US vs. John that the remaining Mississippi Choctaw continued to constitute a recognized tribe even though the Choctaw Nation had been removed to Oklahoma.

The consequences of this development almost spelled disaster, especially for so-called “created tribes”.  The BIA concluded that created tribes did not have the same sovereignty as historic tribes, telling them that they could not tax or regulate trust land like an historic tribe could.  Before long the BIA was adding to the list of powers that a created tribe did not have – including gaming.  It just so happened that some of the tribes with the greatest gaming potential had been, according to the BIA, created: Shakopee Mdewakanton, Prairie Island Dakota, Three Affiliated Tribes, Eastern Cherokee, Florida Seminole, Oneida of Wisconsin, Ho-Chunk Nation, and many tribes within Nevada and California.

Despite the defined categories, nobody seemed to know exactly which tribes were created and which tribes were historic, including the BIA.  Most likely, anticipating the political firestorm, the BIA didn’t want all the tribes to know at once.  Generally, the BIA would inform a tribe of its status only when the tribe attempted to amend its constitution, an act that required BIA approval under IRA constitutions.  The policy finally got some attention after Congress recognized the Pascua Yaqui Tribe in southern Arizona, when the BIA took the position that the tribe was a remnant of the large Yaqui nation, mostly in Mexico, and was therefore deemed created.  Arizona Senator John McCain then led the charge to abolish the distinction, and in 1994 Congress amended the Indian Reorganization Act to disallow any federal agency from making such distinctions between tribes.  The rhetoric required to force the change mirrored the rhetoric of the American founders and new States as they argued to join the Union upon an equal footing with existing States.  There would now be an equal footing doctrine among tribes, with a statutory provision to hang its hat on. 

PART V: IRRESISTIBLE FORCE MEETS IMMOVABLE OBJECT

If State reserved rights were almost irresistible forces in the westward expansion of America, the reserved rights of the pre-existing Tribes had proven to be not entirely movable objects.  The setting for the argument is now straightforward.  Step 1: The United States federal government acquires territory from a tribe in a treaty.  Step 2: In that same treaty the tribe reserves territory and rights from the United States federal government.  Step 3: the federal government establishes a State or States out of the acquired territory.  The rub lies in Step 4: Do the tribe’s reserved territory and rights survive the new state? 

Recall that in the long line of cases from Percheman, to Summa Corporation, individual private property granted by a foreign sovereign and protected in treaties survived statehood. Even then, the Court maintained the logic of the 10th Amendment by clarifying that such property fell within the State’s territory, subject to the State’s jurisdiction.  The new State was simply bound to adhere to treaty-protected, individual property interests; but sovereignty, dominion, and governance inured to the States.  After all, sovereignty is the topic of the 10th Amendment, not a topic-by-topic list of granted and reserved rights.  So as long as new States retained sovereignty over any rights reserved in foreign treaties, the 10th Amendment and EFD prevailed, and the States won. 

Indian treaties are not the same.  Their provisions go beyond the treaties with Spain and Mexico.  In their treaties, the tribes did not reserve mere individual rights; they reserved collective rights.  They didn’t reserve ownership in property; they reserved dominion over territory.  Thus, when the federal government established a new State, such as South Dakota, without sovereignty or dominion over a sovereign territory wholly within it, such as Cheyenne River Sioux – who did the reserving – the federal government or the new State?  When the Tribe reserved territory from the federal government, did the federal government have any choice but to “reserve” that territory from the State?  

a.	The Playing Field

Squarely facing this conundrum, the first four EFD cases involving tribes and Indians were a portrait of confusion.  The States made EFD arguments in Winans and Winters, which, as explained above, remain the cornerstone of the doctrine of tribes’ reserved powers and rights.  In other words, in those cases the EFD lost and the tribes’ reserved rights prevailed.  However, by the time Winans and Winters arose, the States had already won two Indian law cases at least in part due to the EFD.

In US v. McBratney, in 1881, the Supreme Court invoked the EFD and ruled that the State of Colorado had jurisdiction over a murder between two non-Indian citizens of the State, despite the fact that the crime occurred in a Tribe’s territory.   In 1896 the Supreme Court again cited the EFD, in Ward v. Race Horse, ruling that the State of Wyoming retained jurisdiction over hunting by a Tribe member.  At first blush one must conclude that the state EFD prevailed over the tribes’ reserved powers and rights in these cases. 

Despite the apparent inconsistency, Ward and McBratney are not wholly at odds with Winans and Winters.  The treaty in Winans was intended to be in perpetuity; or at least no treaty language suggested that the reserved rights would ever expire.  In Ward the treaty included an express “sunset” provision, and so the reserved rights at issue were not intended to be in perpetuity.  Furthermore, in Ward the hunting event occurred outside the reservation.  In that sense Ward is in accord with the entire Percheman line of cases – and Winans – that a treaty purporting to preserve rights within a new State must expressly do so.  The real significance of Ward is that the EFD distinguishes between on-reservation and off-reservation reserved rights.  Like Ward, Winans also involved an off-reservation reserved right, but, unlike Ward, Winans involved an express reservation, more like the Percheman line of cases.  In that light Ward may actually be in accord with Federal Indian Law.
 
McBratney, on the other hand, involved an on-reservation incident, making the case more troublesome than Ward.  Two other factors, however, help to explain why the State won.  First, McBratney did not involve a member of the Tribe.  Second, likely as a result of the first, the Tribe did not assert jurisdiction in the case; rather the State and the federal government were fighting over jurisdiction.  That’s not to say that had the tribe asserted jurisdiction the Court would have decided differently, given the times, but the EFD can hardly be credited with subordinating the tribe’s sovereignty if the tribe hadn’t even asserted it.  Nonetheless, it must be conceded that McBratney represents a departure from precedent established as early as Worcester v. Georgia that States cannot enforce their laws within a Tribe’s territory.

Unlike Ward and McBratney, Winans and Winters set the full table, squarely pitting the States’ EFD against tribes’ reserved rights.  In Winans, the Court wrote: “It is further contended that the rights conferred upon the Indians are subordinate to the powers acquired by the State upon its admission to the Union.  In other words, it is contended that the State acquired, by its admission into the Union ‘upon an equal footing with the original States,’ the power to grant rights in or dispose of the shore lands upon navigable streams, and such power is subject only to the paramount authority of Congress with regard to public navigation and commerce.”  Despite the argument, the Court ruled against the State’s interest, holding that the tribes’ express treaty-reserved right was an exception to the EFD.

Indeed, Winans presented the classic EFD case involving submerged river bed lands below the high water mark where historically the States had made their strongest arguments.  Responding to the States’ argument in Winans, the Court cited Shively: “Notwithstanding the dicta contained in some of the opinions of this court, already quoted, to the effect that Congress has no power to grant any land below high water mark of navigable water in a Territory of the United States, it is evident that this is not strictly true.”  To support its conclusion the Winans Court invoked America’s logic of republican democracy, the same logic that carried the States’ EFD, and applied it to tribes: “In other words, the treaty was not a grant of rights to the Indians, but a grant of rights from them – a reservation of those not granted.”  The immovable object prevailed.

The Winters case also presented an EFD clash, but it presented different factors from Winans.  In Winters the Court wrote: “Another contention of appellants is that if it be conceded that there was a reservation of the waters of the Milk River by the agreement of 1888, yet the reservation was repealed by the admission of Montana into the Union ‘upon an equal footing with the original States’.”  Unlike Winans, however, the water right at issue in Winters was not based upon an express treaty provision; the tribe had made no express reservation.  Of course, Winans was an off-reservation reserved right; Winters involved on on-reservation right.  Rather, if the tribe in Winters were to prevail, the Court would have to ascertain an implied reserved right, some right that intrinsic to the purpose of the reservation in general.  The facts offered the Court the necessary distinction, because Winans had involved an off-reservation reserved right, while Winters involved an on-reservation use.  Therefore, express and implied reserved rights would prevail over the States’ EFD arguments.

Together, Winans and Winters remain remarkable in several respects.  First, they present the notion of an equal footing doctrine among tribes, applying both express and implied reserved rights. They also suggest that the location of the reserved right – on or off the reservation territory – is a significant factor, with off-reservation reserved rights requiring an express treaty provision, and on-reservation reserved rights requiring only an implied reservation.  Also, regarding implied reserved rights, Winters introduced the idea of the “purpose of the reservation” as the touchstone inquiry for determining the nature and scope of the implied right.  

They both represent exceptions to the States equal footing doctrine.  Winans is akin to the historical exceptions regarding “international obligations” in the Spanish and Mexican treaty cases.  But in some ways Indian treaties go beyond the international treaties.  The international treaties reserved only individual ownership of property, while the Indian treaties reserved collective dominion over territory.  Recall that from Percheman to Shively, after the confusion over ownership was clarified, the States ultimately won the EFD cases by retaining governance over the reserved private property.  Not so with Indian reserved rights.  

Winans and Winters would bring America’s democratic logic into Indian law, including the notions of express and implied reserved rights and an equal footing doctrine among tribes.  The setting dictated that the pre-existing tribes reserved powers and rights from the Union.  Then, when it established a State, the Union was obliged to “reserve” the tribe’s powers and rights from the new State.  The cases establish that there is no middle ground, and that, given the tribes’ pre-existence, like the original thirteen States, the Tribes would prevail.

b.	Federalism Football

The federal Judiciary’s pronouncements in Winans and Winters did as much to establish federal supremacy as Indian rights.  They gave rise to a progeny of cases that had as much or more to do with federalism as Indian law.  Several years after Winters, in 1918, the Supreme Court once again upheld a tribe’s right in submerged lands.  Technically, Alaska Pacific Fisheries v. United States (Alaska Fisheries) is not an EFD case, since Alaska was not yet a State when it arose.  But the case did raise the question whether the federal government held the submerged lands in trust for the future State.  Unfortunately, the facts in Fisheries have continued to cause confusion in the subsequent legal history.

In Fisheries the private company and the Tribe fought over the use of submerged lands in navigable waters, just like in Winans.  However, in Fisheries the tribe made no claim to the area as aboriginal territory; in fact the tribe had migrated from Canada at the invitation of the United States.  The tribe had made no treaty with the US as in Winans, and no agreement with the US as in Winters.  But the tribe’s territory had been ordained in an act of Congress.         

The Supreme Court analyzed the congressional action as a grant, sort of like in Shively.  Of course, in Federal Indian Law the very idea of granting to a tribe can be subterfuge to the logic of Winans.  But the facts here were unmistakable; this was indeed a grant to the Indians.  So how could the Tribe have reserved anything, express or implied?  Moreover, the Court concededly found no express indication that the submerged lands were included in the grant.

The tribe won.  The territory had been indeed been granted to the Indians, sort of like North Dakota had been a grant to North Dakotans.  In other words, the tribe would not be a created tribe any more than North Dakota was a created State.  As a result, the tribe would be treated as though the United States held it on an equal footing with pre-existing tribes.  Analyzing the importance of salmon fishing to the tribe, and that access to tidelands were necessary for salmon fishing, the Court concluded that the tidelands had been included in the congressional grant.  Therefore, the analysis did not require an express reservation as in Winans; rather, the equal footing logic required only an implied reservation of rights as in Winters.  Moreover, to determine the nature and scope of the implied right, the Court also invoked Winters regarding the “purpose of the reservation”, finding here that the tribe subsisted on salmon, and thus concluded that Congress would not have excluded from the territory submerged lands that were necessary for the salmon fishery. 

About twenty years after Winters, another EFD case, United States v. Holt State Bank,  meandered to the Supreme Court and truly muddied the waters.  The dispute in Holt did not present a classic Winans scenario with an express reservation of off-reservation rights, or even a classic Winters scenario with an implied reservation of on-reservation rights.  Rather, Holt presented another attempt by the federal government to grant lands to an Indian tribe. 

The facts are as clear as Mud Lake.  In a pre-statehood treaty, the Red Lake Chippewa Tribe ceded some, but not all, of its territory to the US.  In that same treaty the tribe reserved some, but not all, of its remaining territory.  To exacerbate matters, Minnesota had attained statehood and had joined the Union in 1858.  Consequently, inevitable questions arose regarding the status of the gray area that had been neither expressly ceded nor expressly reserved by the Tribe.
 
Because Indian treaty-making officially ended in 1871, the Red Lake Tribe settled for an “agreement” in 1889 that allowed the federal government to sell private patents in the non-ceded, non-reserved “gray area” in exchange for the sale proceeds.  As a result the United States surveyed the territory and sold agricultural homesteads at $1.25 per acre.  Mud Lake lay within the gray area, but being a lake it was not immediately homesteaded.  Some years later the federal government drained Mud Lake.  However, instead of selling more homesteads, the federal government sought to turn the dry lake bed over to the tribe.  Immediately, the facts begged the admonition dating way back in Pollard that any federal grant, or even a federal confirmation of a prior treaty obligation, must have been made pre-statehood, or else the property interest would fall to the EFD and pass to the State upon admission to the Union.

In Holt, the parties in fact argued the EFD, and the US Supreme Court agreed.  For its part, the United States rested its case on the argument that the lake was not navigable under federal law, so that the federal government could not have held the lakebed in trust for the future State.  Importantly, the US did not argue that the tribe held Winans reserved rights to the lakebed; rather, the government’s argument seemed to presume that if the tribe had a statutory right to the proceeds if the lake bed were homesteaded, then the tribe must have a right to the lake bed itself if it were not homesteaded.  Therefore, even though the State argued the EFD, the Tribe had no reserved rights in play.  Frankly, it is difficult to imagine how anybody thought the tribe had a right to the lakebed, unless ulterior designs were at play.  Several years later the holding in Holt would come back to haunt the Indian tribes.

c.	“Through the Looking Glass”: Tribes’ reserved rights masquerading as federal rights

Meanwhile, a strange development of epistemic proportions was occurring outside Federal Indian Law – the Supreme Court would bring its Federal Indian Law schizophrenia to the logic of States reserved rights.  Under the Court’s new analysis Indian water rights would find a strange bedfellow – public lands – as though the two were on an equal footing.  In Federal Power Commission v. Oregon, (Pelton) regarding Pelton Dam, the Supreme Court suggested that Winters went beyond reserved rights for tribes and stood for the proposition of a general “federal reserved water right” doctrine.  (On cue, states’ rights purists cringe again.)

The very idea of federal reserved rights goes astronomically beyond the Percheman and the Winters lines of cases, where the question of pre-existing treaty obligations was paramount.  The very idea of the Union reserving rights from a state without any pre-existing constitutional basis for doing so stands the logic of the 10th Amendment on its head, just as the Union’s reserving rights from a Tribe stands the analogous logic of Winans on its head.  Simply put, the Union had preceded neither state nor tribe, either in time or in logic.

In the Constitution the States made treaties “the supreme law of the land”, and then proceeded to grant the federal government the exclusive authority to enter into treaties with foreign nations and Indian tribes, knowing full well that foreign nations and tribes might reserve rights.  But where would federal power have gotten that authority to reserve rights from the States without a pre-existing, constitutional obligation to do so?  These rights are not reserved rights, are not the same as Winters rights, and should bear a different moniker.  While Indian treaty reserved water rights are accurately labeled “Winters rights”, the “federal reserved water rights” declared in FPC v. Oregon are more appropriately labeled “Pelton rights”. 

The incongruence was rediscovered and ably explained in 1984 by a student named Todd Fisher in a casenote in the Cornell Law Review.  Fisher writes: “[T]o the astonishment of western water lawyers, the Court indicated that the Winters doctrine might extend to non-Indian federal lands.”  In support of his critique, Fisher quotes at length from an article by Professor Trelease: “At no time prior to 1955 did I ever hear a suggestion that the reserved rights doctrine was anything but a special quirk of Indian water law. *** [A] number of western state water officials and others raised a chorus of protest at this reversal of what they had always thought to be the law.”  If Professor Trelease had reason to be surprised by Pelton rights, think how surprised the tribes have been as they learn what this development held in store for their Winters rights.

Despite the irony that Federal Indian Law is a federalism tool to undermine state reserved rights, Tribes generally are in accord with States against the idea of a federal reserved water right.  After all, how far off would the next logical steps be?  How long would it take for a federal reserved water right to undermine a tribe’s power over the waters within its own reservation territory?  How long would it take for the Courts to hold that it was actually the federal government, not the tribe, that had reserved the tribe’s water rights in Winters?  How long would it take for the federalism pendulum swung in the other direction and a states’ rights judiciary curtailed federal reserved rights, and the tribes’ Winters rights along with them?  

Not long.  In Arizona v. California, the Supreme Court applied the idea of reserved rights to federal lands.  The United States had intervened to protect the water rights of five tribes and several federal enclaves.  The Court obliged the federal government, and even suggested that any quantification of the tribes’ Winters rights must “satisfy the future as well as the present needs of the reservation.”  On that point Mr. Fisher’s Cornell casenote unwittingly presages the anxious reaction of a future states’ rights oriented judiciary.  Fisher writes: “The Court’s language could mean that the ‘purpose’ of a federal reservation might be expanded; thus, the quantity of the water guaranteed by the Winters right might also be increased.”  

As if on cue, the Court reacted to the new idea of federal reserved water rights.  United States v. District Court In and For the County of Eagle (County of Eagle), involved the “McCarran Amendment”, which allows the US to be joined as a party in state water adjudications.  The US argued that the McCarran Amendment applies only to federal water rights acquired under state law, not federal reserved water rights.  The Court disagreed, holding that the Amendment made no exception for “federal reserved rights”.  The Court then ruled that the federal enclaves – and the five tribes – would have their federal reserved water rights adjudicated in State court.  The practice started by Pelton of fabricating federal reserved water rights and attaching the Winters label to them had only just begun to harm the Indian tribes.

Empowered by the Court’s opinion in County of Eagle, the States next argued that the McCarran Amendment gave them exclusive jurisdiction over water rights, including Pelton rights.  In Colorado River Water Conservation District v. United States, the Court disagreed in part, holding that the McCarran Amendment created a concurrent jurisdiction.  But then Court added that if a state has a comprehensive system for water rights adjudication, federal water rights are more appropriately determined in State court, citing judicial efficiency, experience, and expertise.  Of course the Court made no distinction between Pelton and Winters rights.  So now, if tribes’ treaty reserved rights – the true Winters rights – were being violated by the State, the tribe was all but required to challenge the State in its own court.  

Having made no distinction between Winters and Pelton, with the added benefit of curtailing real Winters rights, the Supreme Court hit full stride.  In Cappaert v. United States, the Court was called upon to decide whether the federal government possessed a water right necessary to protect the unique habitat of the endangered pupfish in Devil’s Hole National Monument.  The Court again specifically cited Winters in upholding the federal reserved water right to protect enough water to preserve the pupfish.  Having set the Pelton/Winters analogy, the Court proceeded to establish a a more restrictive standard for quantifying “federal reserved water rights” – the so-called “minimal need” test.  Once again, the Court restricted Pelton rights while inferentially including Indian Winters rights.

In United States v. New Mexico, in 1978, the Court writing through Justice William Rehnquist, rendered a crabbed construction of the purpose of national forests, and thus the extent of the federal water right.  Again tightening the noose directly on Pelton rights, the inevitable attribution to real Winters rights soon followed.  As Fisher put it; “The general tenor of the [New Mexico] opinion is quite unsympathetic to the government’s Winters rights claims.”  Increasingly, the same can be said of the Court’s tenor when dealing with real Winters rights.  While the Court and the scholarship expressed their concerns over Arizona v. California’s expansion of federal “Winters” rights, once the Court put the kibosh on h expansion, nary a word has been said about the Court’s subsequent contraction of the real Winters rights in the subsequent cases as the federalism pendulum has swung back in the other direction.

d.	And Back: direct attacks on tribe’s reserved rights by a states’ rights Court 

Arizona v. San Carlos Apache Tribe provided the first instance of the Court squarely using its crabbed construction of Pelton rights directly against a tribe’s real Winters rights.  In San Carlos, the Tribe had sought an injunction in federal district court against the State’s water rights adjudication, arguing that a disclaimer in Arizona’s statehood act precluded the state from adjudicating Indian matters.  The Supreme Court held that despite the disclaimer in the statehood act, McCarran gave the State jurisdiction.  The distinction between federal water rights and Tribes’ reserved rights almost vanished.

In one fell swoop the US Supreme Court used its jurisprudence regarding Pelton rights to reverse a long standing precedent that a disclaimer in a State’s enabling act could support an exception to the EFD.  After that blow, the argument that tribes’ reserved rights amounted to an exception to the EFD appeared to be on its last leg.  To prove the point, the Supreme Court would then render two Indian water rights cases that turned Winters – and the logic of Winans and the 10th Amendment – on its head.

In 1970 the Supreme Court decided Choctaw Nation v. Oklahoma in the tribe’s favor despite an EFD argument by the State.  Then in 1981 the Court decided United States v. Montana, once again ruling in favor of the EFD, holding that statehood abrogated a tribe’s reserved rights.  Both cases seem to be antithetical to the prevailing precedent, fueling Justice Clarence Thomas’s diagnosis of Supreme Court schizophrenia in Federal Indian Law.

When the United States acquired the Choctaw Nation’s southeastern homelands, the US promised in return a western territory for the tribe bounded on the east by the opposite bank of the Arkansas River, in fee simple.  When the inevitable lawsuit arose, the Supreme Court in Choctaw held that the treaty language evidenced an intention by the United States to convey the riverbed to the tribes before the admission of Oklahoma to the Union, meeting the test established from Percheman through Shively, the test which the Chippewa Tribe in Holt had failed to meet.  Thus, in Choctaw, the tribe won.  

But the Choctaw Nation did not win under the pure Winans and Winters line of cases – that it was the grantor and reserver of rights.  Rather, the tribe won under the Percheman/Shively line of cases, because it was a grantee which met the requirement of a pre-statehood act of the federal government in order to defeat that state’s EFD argument.  Therefore, a difficult but interesting question remained.  Who governed? 

The cases in Section II above, from Percheman through Shively to Summa Corporation, establish that even if a grantee holds a valid patent to submerged lands, the EFD nonetheless requires that the new State governs the property.  And here, given the facts, the only conclusion that can be reached is that the Choctaw Nation is a grantee in every sense of the word.  Moreover, the cases in section III above establish that the only exception to the EFD’s state governance rule is Indian treaty rights exercised within the tribe’s reservation territory.  Even Winans, the cornerstone case of the tribes’ reserved rights doctrine, left open the possibility of State governance of the tribe’s off-reservation reserved rights, which is one of the reasons Tribes’ off-reservation reserved rights, from Michigan through Wisconsin to Washington, are referred to as “usufructuary” rights, a mere property interest.

Nevertheless, the Court ruled that the Choctaw Nation’s rights in the Arkansas River bed were not governed by Oklahoma, citing the treaty provision that “no part of the land granted to [the Choctaw Nation] shall ever be embraced in any Territory or State.”  So, is the Arkansas River’s bed Choctaw territory or property?  Is the Choctaw Nation’s interests in the riverbed more akin to Winans reserved rights or Shively granted rights?  Are its water rights in the Arkansas River more akin to Pelton rights or Winters rights?

Oklahoma is not the Choctaw tribe’s aboriginal territory and any Choctaw treaty rights in Oklahoma may justifiably be deemed off-reservation for Choctaw.  While the federal grant to the tribe may pre-date statehood, the Tribe’s claim to the riverbed does not pre-date the federal government’s acquisition of the territory encompassing the riverbed.  In other words, the Choctaw Nation legal position reflects that of Shively and Pelton, or at best that of Pacheco and Summa Corporation, rather than the pure Winans and Winters reserved rights to territory that most treaty tribes claim.

This is not to say that the Court’s skewed logic in Choctaw Nation is necessarily bad for all Tribes and Federal Indian Law.  In essence, in Choctaw an EFD between tribes prevailed, placing the Choctaw Nation on an equal footing with those treaty Tribes existing on their own treaty-reserved territories, able to invoke the democratic logic of Winans and Winters even though the Tribe it did not technically predate the Union in Oklahoma.  And rightfully so.  If the democratic logic of the Tenth Amendment can require that North Dakota reserved the same rights as New York or Virginia, then the democratic logic of Winans should require that Choctaw Nation reserved the same intra-territorial rights as a treaty signatory Tribe did.

After the Court in Choctaw turned a pre-statehood grant into a pre-Union reservation, Montana v. United States would do the opposite, turning a pre-Union reservation into a pre-statehood grant, at best.  In Montana, the Tribe would lose.  Justice Rehnquist had been poising himself on the Court to curtail the so-called “federal reserved rights” anyway, so what better case to accomplish that feat than a Federal Indian Law case?  Never mind that Montana actually presented a pure Winans and Winters reserved rights analysis, nothing at all like Pelton or Choctaw.  Why not begin the machinations to turn the clock all the way back to pre-Shively and hold that the Equal Footing Doctrine not only passed dominion to the new State, but also ownership of private property?

Montana potentially sounded the death knell for Tribes’ reserved rights as an exception to the States’ Equal Footing Doctrine.  Unlike the Choctaw Nation, the Crow Nation is within its aboriginal territory.  The Bighorn River at issue in Montana runs through the Crow Nation’s reserved territory, not simply as its border.  Notwithstanding those strong pro-Tribe facts, the Court ruled against the Crow Nation.  The telltale sign of the Court’s objective remains the skewed manner in which the Court presented the case.

First, Justice Rehnquist played fast and loose with the facts, straining to compare the facts in Montana with those in Holt.  He wrote: “In [Holt] this Court applied these principles to reject an Indian Tribe’s claim of title to the bed of a navigable lake.  The lake lay wholly within the boundaries of the Red Lake Indian reservation, which had been created by treaties entered into before Minnesota joined the Union.”  True, in Holt Mud Lake lay wholly within the reservation when Minnesota attained statehood; however, the Holt dispute arose because, after Minnesota’s statehood, the tribe had ceded the area which included the lake.  That is why, contrary to Rehnquist’s rendition, the Holt opinion actually states: “Mud Lake is within what was formerly known as the Red Lake Indian Reservation … Most of the reservation, including the part in the vicinity of Mud Lake, was relinquished and ceded by the Chippewa ….” (Italics mine)  Thus, once the Chippewa Tribe in Holt had ceded the lake, post-statehood, even a grant from the federal government to the Tribe would have failed.  What did that have to do with the Crow Nation and Montana?

Unlike the Chippewa Tribe in Holt, the Crow Nation in Montana had expressly reserved the territory that encompassed the submerged lands.  Unlike Holt, in Montana the submerged lands lay wholly within the reservation when Montana became a State.  Unlike the Chippewa Tribe in Holt, the Crow Nation had not made a post-statehood cession of the territory that including the submerged lands.  In other words, the facts in Montana and Holt could hardly be more incongruous in every key respect.

Next, Justice Rehnquist played as fast and loose with the issue as he had with the facts.  He wrote:

 “The question is whether the United States conveyed beneficial ownership of the riverbed to the Crow Tribe by the treaties … or whether the United States retained ownership of the riverbed as public land which then passed to the State of Montana upon its admission to the Union.” 450 US 544, 550-51.  Court held State. (551, citing Pollard)

This was the Tenth Amendment purist Justice Rehnquist suggesting that the Federal government may have “retained” a right.  This is the then-future Chief Justice speaking in terms of “ownership” instead of dominion, as though the federal and state governments were mere individual holders of private property.  This was the US Supreme Court, the successor in interest to the Winans Court, asking whether the US had “conveyed” rights to a tribe, rather than vice-versa.  Is this irony – or the schizophrenia of Indian law?

The Montana Court first cited Shively for the general rule that the federal government possessed the authority to grant a valid title to submerged lands, as long as it was done before statehood and could be supported by a pre-existing international obligation or public exigency.  The Court then turned to Choctaw for the proposition that the EFD requires a strong presumption against conveyance by the federal government, “because control over the property underlying navigable waters is so strongly identified with the sovereign power of government….”  While the Choctaw Nation had overcome that presumption under the unusual circumstances discussed above, the Court in Montana concluded about the Crow Nation and the Bighorn River: “Whatever property rights the language of the 1868 treaty created, its language is not strong enough to overcome the presumption against the sovereign’s conveyance of the riverbed.” 

Before that “presumption” prevails, shouldn’t “the sovereign” have acquired the territory first?  In Choctaw the United States had acquired the territory from other Tribes before conveying it to the Choctaw Nation, which is why the Shively presumption applied at all.  But in Montana the treaty with the Crow Nation is the act of acquisition by the US, as in Winans and Winters.  Was the Crow treaty a grant of from the Indians, as in Winans, or to them, as in Choctaw?  Winans requires that the sovereign doing the conveying in Montana was the Crow Nation, not the US.  While the Court in Montana myopically refers to the federal government as “the sovereign”, aren’t both parties to a treaty sovereign?  Couldn’t the presumption against sovereign conveyances of submerged lands in navigable waters also apply to the other sovereign party to the treaty, the Crow Nation?

Irony abounds.  Even in Choctaw the presumption against “the sovereign’s” conveyance would have defeated the Choctaw Nation had it not been for express language in the treaty indicating otherwise.  If Choctaw is the test to determine whether a Tribe’s reserved rights defeat a State’s EFD argument – Tribes are indeed in trouble.  While at first it seems that the Court in Choctaw employed an Indian equal footing doctrine to invoke the logic of Winans and Winters, now an Indian equal footing doctrine might work in reverse under Montana, leaving the Choctaw Nation without the riverbed, like the Crow Nation.  As it is, in Choctaw a Tribe with a mere grant of territory owns and governs the riverbed, while in Montana a tribe that did the granting and thus the reserving neither governs nor owns a riverbed running through its territory.

The irony doesn’t end there.  The federal government brought Montana seeking to quiet title to the Bighorn riverbed based on its “Winters” rights.  The federal government must have thought that, certainly, if it can “reserve” water for pupfish in a National Monument, it can reserve rights for a Tribe to a riverbed in its own territory.  Instead, in Montana the tribes’ rights, whether reserved by the federal government or the Tribes, failed.  So, neither the federal government nor the Crow Tribe have reserved rights to a riverbed within the Tribe’s reservation; yet, in Pelton, New Mexico, and Cappaert the federal government holds reserved water rights for dams, timber, and pupfish.  Was there a pre-statehood grant to the dam from Spain, or from Congress, or from an Indian Tribe?  Did Congress confirm a federal reserved water right in the timber?  Did the pupfish in Cappaert have a treaty imposing an “international obligation” upon the federal government to withhold rights from the new State of California?  In short, invoking Winters, the federal government gained Pelton Rights to water for federal lands; but, invoking the EFD, the States defeated the tribes’ Winters rights but not the federal Pelton rights.  

What is Montana’s continued value as precedent?  When the federal government acquired Indian lands, it held the entire territory – not just submerged lands – in trust for future States.  Despite the fact that the federal government issued more title to dry land than wet land, the States nonetheless govern it all, dry and wet.  Thus, the Equal Footing Doctrine doesn’t end at the river’s mouth.  States have argued the EFD in cases involving crimes, hunting, setting water quality standards, liquor in Indian Country, to name a few.  If Winans or Winters had been brought in the US Supreme Court after Montana, would their outcomes have been the same?  In Montana, the once immovable object of Tribes’ reserved rights unceremoniously succumbed to the irresistible force of States’ reserved rights under the Equal Footing Doctrine.

CONCLUSION

	In the end, perhaps not surprisingly given the key role it has played, that the legacy of Winters is lockstep with the rest of Federal Indian Law – at risk of being labeled schizophrenic by Justice Clarence Thomas.  Winters, or more specifically the foundational logic of the inter-sovereign relationship that it represents, remains the cornerstone of Indian law.  But just as certainly Winters has been whittled away by the courts