--- Am. Tribal Law ----, 2018 WL 7324879 (Fort Peck C.A.)
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Fort Peck Court of Appeals.
CAUSE NO. AP # 752
OCTOBER 12, 2018
Appeal from the Fort Peck Tribal Court, Stacie Smith, Chief Judge.

Attorneys and Law Firms
Appellant appeared Pro Se
Appellee appeared by and through Tribal Special Prosecutor, Georgette Boggio
Before Smith, Chief Justice, Desmond and Shanley, Associate Justices


Maylinn Smith, Chief Justice



Appellant, Marc W. Kloker, a non-Indian resident of the State of Montana, appeals the September 7, 2017 order of the Fort Peck Tribal Court, which found he violated 19 CCOJ § 201 by hunting within the exterior boundaries of the Fort Peck Reservation without the proper tribal permit. Appellant, appearing pro se, argues he was not hunting within the legally recognized exterior boundaries of the Fort Peck Reservation based on physical flow changes in waterways originally used to define the boundaries of the Fort Peck Indian Reservation in accordance with the Congressional Act of May 1, 1888, 25 Stat. 113, 116.

This Court accepted the appeal, issued a stay and imposed a briefing schedule on October 3, 2017. Appellant’s opening brief was received October 19, 2017. Appellee, Fort Peck Tribes, filed a response brief on November 6, 2017. Appellant filed a reply brief on November 30, 2017. The matter has been fully briefed at this time. After reviewing the lower court record and the briefs, this Court determined oral arguments were not necessary for purposes of deciding the issues raised by this appeal. On October 11, 2018 the parties filed an unopposed motion to stay the appellate proceedings, “to allow the parties to reach resolution”.



The Fort Peck Appellate Court may review final orders and judgments from the Fort Peck Tribal Court. 2 CCOJ § 202. The September 7, 2017 order finding Appellant violated tribal hunting requirements and imposing a civil penalty is a final order.



This Court reviews de nova all determinations of the lower court on matters of law, “but shall not set-aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence”. 2 CCOJ § 202. Given the specific circumstances of this situation, whether the lower court correctly determined that a hunting permit was required, based on the geographic location where Appellant was hunting, is a mixed question of law and fact. Deference is given to lower court findings regarding the actual causes for any changes in the waterways implicated by this action. Whether the geographic point where the hunting was found to occur is within the exterior boundaries of the Fort Peck Reservation is a legal determination which will be reviewed de novo.



The following issues were raised on appeal:
1) Does the present intersection of the Missouri and Milk Rivers correctly define the legal boundaries of the Fort Peck Reservation?
2) Do the exterior boundaries of the Fort Peck Reservation delineated by waterways change along with naturally occurring water events, such as avulsion, accretion or erosion, or remain fixed?
3) Did the Milk River move one mile west through a recognized avulsive event? and
4) Was Appellant hunting on non-Indian fee patented land located outside of the exterior boundaries of the reservation and, therefore, not required to have a tribal hunting permit?



The parties agree that Fort Peck Fish and Wildlife Department Warden Miles Boxer approached Appellant and his hunting companion at coordinates 48° 3’ 2” W, 106° 17’ 22” W, a point just west of a historic Milk River channel, approximately one mile east of the current Milk River channel, and a short distance north of the Missouri River on October 4, 2016. This geographic point reportedly is located on fee lands owned by a non-Indian.

There is nothing in the record to indicate that Appellant had a Fort Peck Tribal Permit to hunt. Appellant’s only hunting license was issued by the State of Montana. Warden Boxer determined that the Fort Peck Reservation boundary line was the current intersection of the Milk River and the Missouri River, some distance to the west and south of Appellant’s current hunting location. Based on this determination, Appellant was issued a citation for hunting without a license on the Fort Peck Indian Reservation in violation of applicable tribal law. 19 CCOJ § 201.

Appellant appeared in the Fort Peck Tribal Court on September 7, 2016, and reiterated his assertion that he was hunting outside of reservation boundaries. Appellant challenged the lower court’s authority to exercise regulatory jurisdiction over him as a non-Indian if the hunting activity occurred outside of Indian country. Trial on this matter was held on November 18, 2016. On September 7, 2017, the lower court found in favor of the Tribe, fined Appellant $500, and retained possession of his shotgun as collateral until the fine payment was received.



On May 1, 1988, Congress passed legislation establishing the exterior boundaries of the Fort Peck Reservation. 25 Stat. 113, 116. Under this Act, the Missouri River acts as the Reservation’s southern boundary, “in the middle of the main channel thereof” between the mouths of Big Muddy Creek in the east and the Milk River in the west. Id. The western boundary of the reservation then proceeds north “thence up the middle of the main channel of Milk River to Porcupine Creek” before bearing “to a point forty miles due north in a direct line from the middle of the main channel of the Missouri River opposite the mouth of the Milk River.” Id. The boundary then heads due east to form the northern boundary until reaching the middle of Big Muddy Creek, thereby turning south along the middle of that waterway to form the eastern boundary until its nexus with the middle of the Missouri River. Id.

It is this boundary description that is at issue in the present case. Appellant argues the current location of the intersection of the middle of the Missouri and Milk Rivers is not the same geographic point described in the Act of May 1, 1888, but that it had in fact moved approximately 1 mile west to its current location after an avulsive event. At trial, Appellant introduced Exhibit C, a 1961 BIA “Map Showing Irrigated and Irrigable Lands, Fort Peck Indian Reservation Montana: Fort Peck Project,” illustrating his assertion that the river has moved west. Appellant maintains the original boundaries of the Reservation should remain fixed in place consistent with exterior boundaries precisely defined by Congress’ 1888 Act.

Appellee-Tribes assert that the language of the 1888 Act is unambiguous. Based on the clear language of the 1888 Act, the western boundary of the Fort Peck Reservation is in the middle of the Milk River, wherever it presently lies. Under this interpretation any lands to the east of the mid-point of the Milk River are part of the Fort Peck Reservation, so long as the other boundary defining provisions of the 1888 Act are satisfied. Any lands within the exterior boundaries of the Fort Peck Reservation are subject to tribal hunting regulations.

Central to this dispute are the canons of construction and recognized theories associated with riparian boundaries between sovereigns. The canons are triggered due to the fact a federal act involving the Fort Peck Tribes impacts the boundary issue. Various other interpretative theories utilized by the U.S. Supreme Court will also be evaluated when considering disputes between states, or a state and a foreign country, in which borders are described by waterways. See Potomac Shores, Inc. v. River Riders, Inc., 219 Md. App. 29, 33, 98 A.3d 1048, 1051 (2014). While this Court is not bound by most federal case law, it must evaluate whether any legitimate grounds exist for overriding the plain language used by Congress when it expressly identified the exterior boundaries of the Fort Peck Reservation in the 1888 Act as the mid-point of the Milk River.

The complexities associated with determining the legally recognized boundaries of any sovereign, whose borders are defined by waterways, becomes even more challenging when Indian law concepts are woven into the assessment process. Historically, when construing the words used in treaties and statutes, which ratify agreements between the federal government and Tribes, the United States Supreme Court has employed important rules of interpretation, sometimes referred to as canons of construction. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 582 (1832) [“If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense] and United States v. Winans, 198 U.S. 371, 381 (1905) [How the treaty in question was understood may be gathered from the circumstances.]. This approach is based on a recognition that “the standard principles of statutory interpretation do not have their usual force in cases involving Indian law,” Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985). These canons recognize that the language used in agreements or statutes is not that of the tribal nations and that the legal documents were not drafted by Tribes. As a result, the canons of construction are “rooted in the unique trust relationship between the United States and the Indians.” Oneida Cty. v. Oneida Indian Nation, 470 U.S. 226, 257 (1985). The Indian canons are “enlarged rules of construction,” The Kansas Indians, 72 U.S. (5 Wall.) 737, 760 (1866), which ensure that “the language used in treaties [and statutes] with the Indians should never be construed to their prejudice.” Worcester v. Georgia, 31 U.S. 515, 582 (1832).

Under the Indian Canons of Construction, there are three basic principles employed when determining the legal meaning of any language used in federal documents involving Indians. First, language must be construed as the Indians would have understood it. When Congress has expressed clear and unambiguous intent by its action the results will be binding on a tribe, as well as the federal government. See, e.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196 (1999); Jones v. Meehan, 175 U.S. 1, 10-12 (1866); United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938). Second, Indian treaties and statutes must be construed liberally in favor of the Indians. Tulee v. Washington, 315 U.S. 681, 684-85 (1942) (“It is our responsibility to see that the terms of the treaty are carried out, so far as possible ... in a spirit which generously recognizes the full obligation of this nation to protect the [Indian] interests.”); Antoine v. Washington, 420 U.S. 194, 199 (1975) (“The canon of construction applied over a century and a half by this Court is that the wording of treaties and statutes ratifying agreements with the Indians is not to be construed to their prejudice.” (Citing Worcester, 31 U.S. 515)); Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 690 (1979). Finally, ambiguities in the language being considered must be resolved in favor of the Indians. McClanahan v. Arizona Tax Comm’n, 411 U.S. 164, 174 (1973). These canons do not simply address a perceived inequality in bargaining power between tribes and the United States, but reflect accepted interpretive principles that require courts to liberally construe provisions of treaties to preserve against injury to or reduction of tribal rights associated with sovereign powers or lands. See Russel Lawrence Barsh and James Youngblood Henderson, Contrary Jurisprudence: Tribal Interests in Navigable Waterways Before and After Montana v. United States, 56 Wash. L. Rev. 627, 661-664 (1981). These canons “do not turn on the ebb and flow of judicial solicitude” towards tribal governments. Cohen’s Handbook of Federal Indian Law § 2.02[2], at 118 (Nell Jessup Newton, ed., 2012). Indeed, the canons “have quasi-constitutional status; they provide an interpretive methodology for protecting fundamental constitutive, structural values against all but explicit congressional derogation.” Id. at 118-19.

Based on the above analysis, Congress clearly, unambiguously, and expressly established the mid-point of the Milk River as the western boundary for the Fort Peck Reservation. Under the canons of the construction, this Court’s inquiry arguably should stop there. However, given the nature of the underlying issues, this analysis requires an even more nuanced analysis due to the various water law concepts and specific domestic and international rules that are triggered when a sovereign’s boundary is defined by a waterway. Various rules have evolved to deal with shifting boundary lines due to the extremely changeable properties of any riparian boundary.

We first examine the thalweg theory of river boundaries. Under international law principles, the middle of the primary navigable channel of a waterway that defines the boundary line between sovereigns is called a thalweg. This principle has been used by federal courts for more than a hundred years. As a result, when navigable rivers constitute the boundary between two states, the boundary will “be the middle of the main channel.” Iowa v. Illinois, 147 U.S. 1, 7 (1893). This means the “middle” as used in navigation, not necessarily the middle as measured between two banks. Id. at 8; see also State of N.J. v. State of Del., 291 U.S. 361, 379 (1934), Sheril v. McShan, 356 F.2d 607, 610 (9th Cir., 1966) (superseded by statute as stated in U.S. v. Byrne, 291 F.3d 1056, 1060 n.3 (9th Cir., 2002)). In accordance with the concepts of thalweg, the dynamic flow “follows the course of the stream as its bed and channel change with the gradual processes of erosion and accretion.” Louisiana v. Mississippi, 466 U.S. 96, 100 (1984) (citing Arkansas v. Tennessee, 246 U.S. 158, 173 (1918); Arkansas v. Tennessee, 397 U.S. 88, 89-90 (1970)). The “thalweg,” then, is the lowest part or deepest channel of the river bed in the direction of its flow, and land formed by accretion, or a gradual deposition of soil upon one shore, belongs to the upland owner. Id.; see also 81A C.J.S. States § 22 n.1; Anderson-Tully Co. v. Tingle, 166 F.2d 224, 227 (5th Cir. 1948); United States v. Aranson, 696 F.2d 654, 659-60 (9th Cir. 1983).

Determining a sovereign’s boundary based on this principle can also include the results of changes in watercourses. In Nebraska v. Iowa, the Court summed up the rule of thalweg and shifting boundary theory:
It is settled law that when grants of land border on running water, and the banks are changed by that gradual process known as ‘accretion,’ the riparian owner’s boundary line still remains the stream, although, during the years, by this accretion, the actual area of his possessions may vary.
143 U.S. 359, 360 (1892). Hence, if a river forming a boundary changes its course by gradual erosion from one bank and accretion to the other, the boundary moves with the thalweg.¶18 Not all changes in a waterway occur gradually. The exception to this accretion rule is in the event of avulsion, or a sudden change in the channel in which “the stream suddenly leaves its old bed and forms a new one.” Louisiana, 466 U.S. at 100. When a new waterway is formed through an avulsive action, the state boundary line remains fixed with the mid-point of the original channel even though the water no longer flows through the channel. Id. Sometimes the avulsion exception is considered its own rule, such as in Nebraska v. Iowa, under which the U.S. Supreme Court determined the boundary line between the two states despite an ever-changing Missouri River. 143 U.S. at 361. Whether an exception to the shifting boundary theory or its own rule, the effect of avulsion on boundaries is equally well settled: “such change of channel works no change of boundary.” Id.

The second theory of river boundaries is the “fixed boundary theory,” which is also subtly reflected in the Appellant’s position. Under this theory, river boundaries remain fixed as of a particular historical date due to important historical factors. Potomac Shores, Inc., 219 Md. App. at 35, 98 A. 3d at 1052; see e.g. First Nat. Bank of Missouri Valley, Iowa v. McFerrin, 142 Neb. 617, 9 N.W.2d 166 (1943). The Court discussed this theory at length in Ohio v. Kentucky, in which the states disputed whether or not the original boundary between the states was the current or the historic low-water mark of the northern bank of the Ohio River. 444 U.S. 335 (1980), judgment entered, 471 U.S. 153 (1985). History is of great import in this theory because “historical antecedents fix the boundary,” as opposed to characteristics of the river itself. Thus, historical analysis of enabling acts and chain of title is required because “dominion and jurisdiction continue as they existed at the time [the state] was admitted into the Union, unaffected by the action of the forces of nature upon the course of the river.” Id. at 338. In Ohio, the Court focused on the fact that Kentucky was the successor in interest from Virginia of “lands to the north-west of the river Ohio.” Id. (citing to the Virginia Act of 1783, in 11 W. Hening, Laws of Virginia 326, 327 (1823)). Virginia ceded those lands to the United States, which in turn granted them to the new state of Kentucky, entitling it to the river’s expanse. Id. Therefore, under the fixed boundary theory, accretion and avulsion are not determinative. Instead, the events leading to the creation of the boundary determine historically fixed points.

As much as this Court might like to strictly utilize the exact treaty language to determine the exterior boundaries of the Fort Peck Indian Reservation, it seems unlikely that either Congress or the Fort Peck Tribes were envisioning a shifting boundary for the Fort Peck Indian Reservation. A primary purpose of the 1888 Act was to establish permanently fixed boundaries for the Assiniboine and Sioux Tribes by identifying a specific territorial jurisdiction. A plain reading of the entire Act supports this holding. Article I commands the reservation be “set apart” for the permanent home of the “said Indians,” in which signatory tribes acknowledged the rights of one another “to determine for themselves, with the United States, the boundaries of their separate reservation.” 25 Stat. 113. Article II memorializes the cession and relinquishment of “all right, title and interests in and to all lands ... not herein specifically set apart and reserved.” (Emphasis added), 25 Stat. at 114. Article Ill documents the consideration given for the “foregoing cession and relinquishment.” Id. Article VI provides for the title to lands already settled and improved by “any Indian” outside of reservation boundaries in ceded territory to be “entitled ... to have the same allotted to him or her, and to his or her children.” (Emphasis added.) 25 Stat. at 115. And, perhaps most importantly, Article VII commands that:
The outboundaries of the separate reservations, or such portions thereof as are not defined by natural objects shall be surveyed and marked in a plain and substantial manner ... (Emphasis added.)
Id. Thus, the Act mandated non-naturally defined boundary points to be fixed by survey. ¶21 Here, the Act’s specific boundary description fixes one singular point, the northwestern corner, from which all other boundary corners, which in this case are defined by natural objects, can be located. The Act describes the western boundary of the reservation as follows:
... thence [north] up the middle of the main channel of Milk River to Porcupine Creek; thence [north] up Porcupine Creek, in the middle of the main channel thereof, to a point forty miles due north in a direct line from the middle of the main channel of the Missouri River opposite the mouth of the Milk River... (emphasis added)
25 Stat. at 116. Therefore, the mouth of the Milk River is not only important to describing the precise southwestern corner of the reservation, as of 1888, but the entire western boundary of the reservation. As the emphasized text above shows, triangulation of express boundary points establishes the west boundary: the middle of the Missouri River’s intersection with the mouth of the Milk, the middle of the Milk River’s intersection with the mouth of Porcupine Creek, and the mouth of Porcupine Creek’s intersection with a point forty miles due north from the mouth of the Milk. This description allows for the determination of a fixed boundary based on the locations of these water courses in 1888.

Article VII expressly fixed the northwestern boundary point “forty miles due north” of the intersection of the Missouri and Milk Rivers, as it lay in 1888, as a permanently surveyed and marked location as a matter of law. The actual southwestern reservation corner, regardless of the Missouri and Milk’s current intersection, remains implicitly described by the Act to be 40 miles due south of the surveyed and marked northwestern point, which is static and fixed, and not subject to the forces of Mother Nature. Therefore, the southwest corner would no longer be defined by a “natural object” because it was necessarily fixed in relation to the northwest corner. Conversely, if the mouth of the Milk River, the southwestern boundary, moved west either through accretion or avulsion, and the boundary remained naturally defined by its current location. As Appellees argue and the lower Court found, so too would the point forty miles due north have to move to remain true to a plain reading of the Act’s defined boundaries. The survey created in connection with these identified points in 1888 would define the exterior boundaries of the Fort Peck Indian Reservation.

The lower court’s finding, based on the plain language of the 1888 Act describing the southwestern corner of the Fort Peck Indian Reservation as the intersection of the Milk and Missouri Rivers as it currently flows, does not reflect the fixed boundary purpose associated with the establishment of federally recognized Indian country. It is highly probable that the Milk River has not flowed in exactly the same location for the last one-hundred and thirty years and will not remain consistent in the future. In order to identify the permanent and fixed exterior boundaries of Fort Peck Indian Reservation for purposes of determining jurisdiction, the lower court must utilize credible evidence which specifically describes the exact location of the middle of the Milk River channel and mouth as it flowed in 1888 based on reliable survey records from that time frame.



This Court finds no basis, nor was any legal authority provided, for granting a stay of this proceedings at this point in the process, given that no action from this court is under review. Parties have a recognized right to settle matters at any point in the legal proceedings. Parties also have a recognized right to request dismissal of a pending appeal. The motion filed with this Court, however, does not ask for dismissal of the appeal. The request for a stay of this Court’s proceedings is denied. If they so choose, the parties can request that the matter not be calendared for hearing by the lower court until requested by a party in connection with this order.

This Court finds that the Fixed Boundary Theory should be used when determining the exterior boundaries of the Fort Peck Indian Reservation. The underlying intent and purpose of the Act of May 1, 1888, was to create certainty in defined reservation boundaries for the signatory tribes to establish permanent homelands. The exterior boundaries of the Fort Peck Indian Reservation, which are delineated by waterways, should not change along with naturally occurring water events, such as avulsion, accretion or erosion, but remain fixed based on the physical location of these waters in 1888. This matter is remanded back to the lower court for an evidentiary hearing.

At any hearing held for purposes of determining the territorial jurisdiction of the Assiniboine and Sioux Tribes, sufficient evidence must be submitted to create a record identifying the actual physical location of the middle and mouth of the Milk River as it flowed in 1888. This undertaking should include locating the surveyed and marked northwest corner identified in the 1888 Act and its relationship to the southwest corner, which must be found precisely 40 miles due south. The lower court is encouraged to accept records from the Department of Interior Bureau of Indian Affairs, Division of Land Titles and Records, or the Bureau of Land Management General Land Office, to source original Fort Peck Tribes Reservation maps accurately illustrating the 1888 boundaries. Once the fixed boundaries of the Fort Peck Indian Reservation are determined, the lower court must determine if the coordinates entered onto the record and agreed upon at trial, 48° 3’ 2” W, 106° 17’ 22” W, are within the exterior boundaries of the reservation for purposes of addressing jurisdiction issues over hunting activities involving Appellant and before this Court.

SO ORDER this 12th day of October 2018.



Erin Shanley, Associate Justice

Brenda C Desmond, Associate Justice

All Citations
--- Am. Tribal Law ----, 2018 WL 7324879