181 Ct. Cl. 739 | Ct. Cl. | 1967
delivered the opinion of the court:
This motion presents another claim in this many-faceted litigation,
The present Flatbead Eeservation is tbe residue of a very large area once possessed by plaintiffs’ predecessors in tbe northwest. Tbe Treaty of Hell Gate, 12 Stat. 975 (signed in 1855 and ratified in 1859), ceded most of this land to tbe United States, keeping tbe diminished Eeservation “for tbe exclusive use and benefit of said confederated tribes as an Indian reservation.” See Confederated Salish and Kootenai Tribes v. United States, 178 Ct. Cl. 398 (1965). By legislation in tbe early part of this century, Congress compelled tbe Indians to take allotments, opened tbe unallotted lands to non-Indian settlement, in that connection authorized tbe construction of an irrigation system (or project) within tbe Eeservation, and allowed tbe Secretary of tbe Interior to reserve from disposition tribal lands valuable for power or reservoir sites. Act of April 23, 1904, ch. 1495, 33 Stat. 302; Act of May 29, 1908, ch. 216, §15, 35 Stat. 444, 448-50; Act of March 3, 1909, ch. 263, 35 Stat. 781, 795-96. See also Act of March 3, 1911, ch. 210, § 9, 36 Stat. 1058, 1066; Act of August 24, 1912, ch. 388, § 10, 37 Stat. 518, 526-27. One of tbe places within tbe Eeservation so designated by tbe Secretary was a power hydroelectric site on the navigable Flathead Eiver which later became tbe location of tbe Kerr Dam. Thereafter, Congress enabled the Federal Power Commission (with tbe approval of tbe Interior Department) to
In 1930 the Commission issued a fifty-year license to a subsidiary of the Montana Power Company to use and develop the valuable hydroelectric reserved site (mentioned above) within the Flathead Reservation, and the Kerr Dam was then built and put into operation. The license required the licensee
The complaint, as we have indicated, is that this special treatment for the Irrigation Project, enforced by the Federal Government, has caused a serious loss to the Tribes for which they merit compensation. The Indians are entitled to the full power value of the Kerr Dam site, so the argument goes, but have been deprived of a material part of that value by the forced sale to the Irrigation Project at low and preferred rates. They ask for just compensation from the United States whose agencies, the Federal Power Commission and the Secretary of the Interior, insisted on special conditions favoring the Irrigation Project.
I
The most fundamental of the defendant’s answers is that the plaintiffs, although owners of the land on which the Kerr Dam sits, have no legal right, as against the United States, to the power value of a site on a navigable stream. As the Supreme Court has just reaffirmed, there is normally no constitutional right to be paid, on a taking, for power values in-
The history begins with the Indians’ aboriginal ownership of the Kerr Dam land (as well of the entire Reservation) and continues with the Treaty of Hell Grate, supra, which retained the area “for the exclusive use and benefit of said confederated tribes as an Indian reservation.” See United States v. Winans, 198 U.S. 371 (1905). We do not hold—we do not even consider the question—that the Treaty itself gave the Indians the privilege to claim power values if their lands were thereafter taken by the Federal Government. For us the significance of the Treaty is that the later Congressional actions dealing with power development on the Reservation should be integrated, to the extent they can, with this solemn agreement giving the Tribes the “exclusive use and benefit” of the tract (emphasis added).
The first of the directly relevant statutes is the Act of March 3, 1909, ch. 263, 35 Stat. 781, 796, which added the following provision to the Act of April 23,1904, ch. 1495, 33 Stat. 302:
Sec. 22. That the Secretary of the Interior be, and he is hereby, authorized, in his discretion, to reserve from location, entry, sale, or other appropriation all lands within said Flathead Indian Reservation chiefly valuable for power sites or reservoir sites, and he shall report to Congress such reservations.
Then, in 1920, Section 10(e) of the Federal Water Power Act, ch. 285, 41 Stat. 1063,1069 (1920), provided that when the Federal Power Commission issued licenses involving the use of tribal lands within Indian reservations “the commission shall fix a reasonable annual charge for the use thereof”, with readjustments at periodic intervals. The Federal Power Act, ch. 687, § 206, 49 Stat. 838, 843 (1935) (which replaced the Water Power Act) followed suit and adopted Section 10(e) with modifications immaterial to our case. These general provisions, while not decisive on the precise point, show that Congress continued to be concerned with Indian interests and rights in reservation power sites.
Specifically pertinent is the Act of March 7,1928, ch. 137, 45 Stat. 200, 212-13, which authorized the Power Commission to license power areas in the Flathead Beservation, and required “That rentals from such licenses for use of Indian
At the Senate hearings, it was made more explicit that the Committee, as well as the Indian Bureau, took this same position. Senator Wheeler of Montana repeatedly stressed that the power site “belongs to the Indians in our judgment” and noted that the Indians “want to be fully protected to the extent that they are not going to have any of the profits from this matter taken away from them and given to anyone else.” The Senator referred to the 1855 Treaty and to violations of it by the Federal Government, declared that “I am in favor of the development of the project, but I want to see the Indians protected in this matter”, and observed that “The Indians are very skeptical that this property is going to be taken away from them. A great many Indians on the Flathead Reservation in a few years are going to be absolute paupers unless they are provided for, and they feel that this water-power site, belonging to them, is something that will bring in a revenue to them during their lives and during the lives of their children and will keep them from going to the poor house.” The Indian Bureau repeated that its consistent stand was “that the entire net proceeds from this power development on the Flathead Reservation should go to the Flathead Indians”; it made clear that by “net proceeds” it meant that, after the administrative charge by the Federal Power Commission, “we want all the proceeds to go to the Flathead Indians” and “we propose to get the very best proposition we can for the development of the power site and see that all the proceeds go to the Flathead Indians.”
This legislative light, particularly as refracted through the prism of the past history, makes it plain to us that in the 1928 Act Congress recognized and confirmed the Tribes’ right to the power value of the Kerr Dam site and desired them (regardless of constitutional mandates) to be paid for power value. The same concept was utilized and strengthened a year later when Congress waived payment to the Power Commission of the “usual administrative fees and commissions” in issuing licenses “for the development of power or power sites on the Flathead Indian Reservation.” Act of March 4, 1929, ch. 707, 45 Stat. 1623, 1640. The Tribes were not even to bear that normal and routine burden.
What Congress did here was comparable to the many legislative actions recognizing and confirming an Indian group’s title to a reservation or other defined area. See Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 277-79 (1955). Though not required by the Constitution to do so (id. at 279-91), Congress has often conferred compensable rights to land on various tribes by recognizing their title. So in this instance Congress, while free not to do so, decided to recognize the plaintiffs’ rights to the power values and thereby made those interests compensable. The defendant would have it that Congress wished to give the Tribes no more than a limited gratuity in the form of the annual payments to be made by the licensee. We see no such indication. On the contrary, the note struck again and again was that this power site was the Tribes’ own property for which they should be fully compensated.
It remains only to point out that the Federal Power Commission, when it granted the license, took power value into account in fixing the rentals to be paid by the licensee to the
Our conclusion that Congress has recognized the Tribes’ right to the water-power value of the Kerr Dam site is strongly supported by the able opinion of the District Court in the closely comparable case of United States v. 5,677.94 Acres of Land, supra, 162 F. Supp. 108 (D. Mont. 1958). There the Federal Government sought to condemn for the proposed Yellowtail Dam, without paying power value, tribal lands belonging to the Crows on the Big Horn River. In a thorough analysis the court held that power value must be paid. The only difference between the cases is that, unlike the Act of March 3, 1909, supra—reserving Flathead Reservation water-power sites from disposition—the Crow Allotment Act of 1920 provided in terms that Crow lands valuable
II
The next obstacle, in the defendant’s view, is that the United States paid the plaintiffs for the very claim in suit, via Section 5 (b) of the Act of May 25,1948, ch. 340, 62 Stat. 269, 272, which gave them $400,000 in full settlement “of all claims of said tribes on account of the past use of tribal lands for the physical works and facilities of the irrigation and power systems of the project, or for wildlife refuges” and also “in full payment to said tribes for a permanent easement to the United States, its grantees and assigns, for the continuation of any and all of the foregoing uses * * * *.”
The “project” referred to in this section was the Flathead Indian Irrigation Project
It is also very important to observe that the Irrigation Project has power distribution systems which are entirely separate and distinct from the hydroelectric production system built and operated by the Montana Power Company at and incident to the Kerr Dam. Under the license to that company, the Project’s distribution systems received the exclusive right (together with the United States) to sell power within the Flathead Reservation (up to a certain limit). But the Project has, and has had, no interest at all in the Kerr Dam site.
Against this background, the 1948 award of $400,000 is highlighted as a payment to the Tribes on account of the liability of the Federal Government and the Irrigation Project for the use of tribal lands for (i) the facilities of the irrigation system and (ii) the Project’s distribution power systems, not the Montana Power Company’s production system centered on the Kerr Dam. The only reference in Section 5 to “power systems” is to “power systems of the project" (emphasis added), and the only power systems the Irrigation Project has ever had are its distribution systems. One-half of the payment was in full settlement of past uses of tribal lands for those power systems (as well as the irrigation facilities and a wildlife refuge). The other half was in full payment for an easement “for the continuation of any and
The 1948 Act’s legislative history bears out this reading. The House committee report described the Irrigation Project (which was the subject of the entire statute) as including an irrigation system and a “power system consisting] of 410 miles of distributing lines, a 820-watt generating system, and several substations. The system serves some 8,700 customers and there .[are] now on file between five and six hundred applications for connection by small users.” H.E. Eep. No. 1691, 80th Cong., 2nd Sess., at 1-2 (1948). The report added that one of the purposes of the bill was to “permit the construction of additions and improvements to the irrigation system and the power system so that new customers may be connected and present ones better served.” Id. at 2. The Under Secretary of the Interior pointed out to the Committee, with respect to Section 5(b), that “the whole sum of $400,000 is to be added to the reimbursable construction costs of the project, and is to be repaid to the United States by the water users and power users of the project. Adoption of subsection 5 (b) would resolve a long-standing controversy in a way materially agreeable to both the Indians and the irrigation district concerned, and would facilitate the efficient operation of the project.” Id. at 7-8. The Senate Committee report copied that of the House. S. Rep. No. 1234, 80th Cong., 2nd Sess. (1948).
These statements show that the Congressional Committees and the Department of the Interior were indeed thinking of the Irrigation Project’s distribution system, not of the Mon
It follows from both the wording and the legislative history of Section 5(b) of the 1948 Act that the $400,000 payment there authorized was not in settlement or payment of the present claim which remains fully alive.
Ill
Finally, the Government argues that the provisions of the license to Montana Power Company, now challenged by the plaintiffs, caused no loss to them and therefore that nothing can be owing. Certain statements of officials and others, at various times in the past, are cited in support. The Tribes rightly answer that this is a matter for the proofs and that defendant has not contended, and cannot properly, that there is no factual dispute on this issue. The bits of testimony and argument which the Government now presents are not enough to demonstrate that a trial is unnecessary. Summary judgment cannot be awarded on a controverted factual question of this kind.
We hold, accordingly, that defendant’s motion for summary judgment is denied in all aspects and that the case is remanded to the commissioner for trial or other appropriate further proceedings.
under a special jurisdictional Act of July 30, 1946, ch. 701, § 1, 60 Stat. 715, authorizing a suit to adjudicate “any and all legal and equitable claims of whatsoever nature” the plaintiffs had against the united States, the Tribes filed a petition raising a number of separate claims. For opinions passing on others of these demands, see 167 Ct. Cl. 405 (1964) ; 173 Ct. Cl. 398 (1965) ; 175 Ct. Cl. 451, cert. denied, 385 U.S. 921 (1966).
Sometime after issuance, the license was transferred to the Montana Power Company, which is now the formal licensee.
Plaintiffs contend, of course, that the favorable rates to the Irrigation Project, which the Commission also inserted in the license, prevented that agency from giving full credit to the power value.
The full test of Section 5, paragraph (b), is as follows:
“The sum of $400,000 to be deposited in the united States Treasury to the credit of the Confederated Salish and Kootenai Tribes of the Flathead Reservation in Montana; of which sum one-half shall be in full settlement of all claims of said tribes on account of the past use of tribal lands for the physical works and facilities of the irrigation and power systems of the project, or for wildlife refuges; and the other one-half shall be in full payment to said tribes for a permanent easement to the United States, its grantees and assigns, for the continuation of any and all of the foregoing uses, whether heretofore or hereafter initiated, upon the tribal lands now used or reserved for the foregoing purposes. The said tribes shall have the right to use such tribal lands, and to grant leases or concessions thereon, for any and all purposes not inconsistent with such permanent easement. The amount deposited in the Treasury pursuant to this subsection shall be added to the construction costs of the project and shall be reimbursable.”
The $400,000 was paid pursuant to the Appropriations Act of June 23, 1949, ch. 236, 63 Stat. 231, 241.
The entire Act of May 25, 1948, deals with the Irrigation Project, and the first section declares that the “Flathead Indian irrigation project in Montana” is “hereinafter called the project.”