         IN THE SUPREME COURT OF THE STATE OF MONTANA




STATE OF MONTANA, ex rel., MIKE GREELY,
Attorney General, WATER COURT OF THE
STATE OF MONTANA and THE JUDGES OF THAT
COURT,
            Petitioners,


THE CONFEDERATED SALISH AND KOOTENAI
TRIBES OF THE FLATHEAD RESERVATION,
THE CROW TRIBE OF INDIANS OF THE CROW
RESERVATION, THE NORTHERN CHEYENNE TRIBE
OF THE NORTHERN CHEYENNE RESERVATION,
and THE NORTHERN CHEYENNE RESERVATION,
and THE UNITED STATES OF AMERICA,                          .   ,.--                          %.


Individually and as Trustee for the
Blackfeet Indian Nation of the Blackfeet
Reservation, the Chippewa-Cree Tribes of
the ~ o c k yBOY'S Reservation, the Confeder-
ated Salish and Kootenai Tribes of the
Flathead Reservation, The Crow Tribe of
                                                  '        FILED      JAN 2 3 1986
the Crow Reservation, the Gros Ventre,
Sioux and Assiniboine Tribes of the Fort
                                                      ,,


                                                       CLERK OF SCIPXEf8:
                                                                          ?fl J,ln         i.t*:4   *n
                                                                                                  .r\T

Belknap and Fort Peck Reservations, the                         ~TATE
                                                                    OF       R ~ L I Lr   ni.A
Northern Cheyenne Tribe of the Northern
Cheyenne Indian Reservation, and the Turtle
Mountain Chippewa Tribe, a North Dakota
Tribe with allotments to land in the State
of Montana,
            Respondents.



                             O R D E R

     Having reviewed its opinion in the above-captioned case
and having found certain clerical errors,
     IT IS ORDERED that the opinion shall be amended as
follows:
                                                                      1

     (1) Page      10, paragraph     2,   following   the             quotation
reads:

         - Carlos
         San
         The Court
                    Apache, 4 6 3 U.S. at 5 6 4 .
                    did not, however, rule upon
         whether the Amendment has removed state
         limitations,     such      as      Montana ' s
         constitutional disclaimer.
This paragraph shall be amended so that the last sentence
immediately follows the citation to - Carlos Apache, as
                                    San
follows:

          - Carlosnot, however, U.S. at 564. The
          San
          Court did
                    Apache, 463
                                rule upon whether
          the   Amendment    has   removed   state
          limitations,     such    as    Montana 's
          constitutional disclaimer.
(2)   Page 13, line 6 aeads:
      people."      in Art. I, Mont. Const. 1972.
The period following "people" shall be deleted so that this
line reads:
      people" in Art. I, Mont. Const. 1972.
(3)   Page 13, line 11 reads:
      We hold that Art. I, Mont. Const. 1972 does not
      prohibit
A comma shall be interested after "1972" so that this line
reads :
      We hold that Art. I, llont. Const. 1972, does not
      prohibit
(4) Page 13, fourth full paragraph, second to last sentence
reads :
      Indian reserved water rights are created or
      recognized by    federal treaties, statutes or
      executive order, and are governed by federal law.
This sentence shall be amended to read:
                                          \

      Indian reserved water rights are created or
      recognized by federal treaty, federal statute or
      executive order, and are governed by federal law.
(5)   Page 14, first full paragraph, third sentence reads:
      The United States Supreme Court held that the 1888
      agreement which resulted in creation of the Fort
      Belknap Indian Reservation implied a reservation of
      water along with the expressed right to exclusive
      possession of the land.
Commas      shall    be   inserted   following      "agreement"   and
"Reservation" so that this sentence reads:
      The United States Supreme Court held that the 1888
      agreement, which resulted in creation of the Fort
      Belknap Indian Reservation, implied a reservation
      of water along with the expressed right to
      exclusive possession of the land.
(6) Page 14, first full paragraph, quotation from Winters
reads :                                             -
     The Indians had command of the lands and the
     water-command of all their beneficial use, whether
     kept for hunting, 'and grazing roving herds of
     stock," or turned to agriculture and the arts of
     civilization.
The hyphen shall betchanged to a dash so that the quotation
reads :
     The Indians had command of the lands and the water
     -- command of all their beneficial use, whether
     kept for hunting, "and grazing roving herds of
     stock," or turned to agriculture and the arts of
     civilization.
(7) Page 16, first full paragraph, line 4 reads:
      85-2-231 (1)(c),   85-2-234 (4)    &   (6) and     85-2-701
      through -705,
A comma shall be inserted following (6), so that this line
reads:                                                      $   +




      85-2-231 (1)(c),   85-2-234 (4)   &    (6)   , and 85-2-701
      through -705,
(8) Page 16, last sentence reads:
     It is sufficiently broad to allow adjudication of
     water reserved to protect tribal hunting and
     fishing rights, including from the depletion of
     streams below a protected protection level.
This sentence shall be amended to read:
      It is sufficiently broad to allow adjudication of
      water reserved to protect tribal hunting and
      fishing rights, including protection from the
      depletion of streams below a protected level.
(9) Page 17, second full paragraph, last citation is to R.
Collins, Indian Allotment Water Rights, 20 Land a.nd qater Law
Review 421, 426 fn. 20 (1985).          The explanatory information
in the parenthesis reads:
      (decree of water with "immemorial date of priority"
      to Gila River Tribes, whose members have been
      irrigators before European contact; decree of water
      with reservation priority to Apaches, who had not
      previously irrigated.)
This parenthetical note shall be amended to read:                   ,
                                                                    b


      (decree of water with "immemorial date of priority"
      to Gila River Tribes, whose members had been
      irrigators before European contact; decree of water
      with reservation priority to Apaches, who had not
      previously irrigated).
(10)     Page 1 9 , l i n e 9 r e a d s :

              The Supreme C o u r t h e l d t h a t , u n d e r . t h e
T h i s l i n e s h a l l b e amended t o r e a d :

              The Supreme C o u r t h a s a l s o h e l d t h a t u n d e r t h e
(11) P a g e 20,         second f u l l paragraph,              t h i r d sentence reads:

        I t may b e a r g u e d t h a t t h e s e s t a t u t e s m i g h t a l l o w a n
        i m p r o p e r l i m i t a t i o n on I n d i a n r e s e r v e d r i g h t s
        r e s u l t i n abandonment f o r n o n u s e .
An     "or"      shall     be    inserted        after       "rights"         so       that    this

sentence reads:

        I t may b e a r g u e d t h a t t h e s e s t a t u t e s m i g h t a l l o w a n
        improper l i m i t a t i o n on I n d i a n r e s e r v e d         rights        or
        r e s u l t i n abandonment f o r n o n u s e .

(12)     Page 2 3 , l a s t p a r a g r a p h , s e c o n d s e n t e n c e r e a d s :

        A l t h o u g h f e d e r a l w a t e r r i g h t s c a n b e r e s e r v e d by
        implication,            l i k e Indian reserved r i g h t s under
        W i n t e r s , t h e y a r e n o t b a s e d upon t r e a t i e s .

The f i r s t comma s h a l l b e d e l e t e d t o t h a t t h i s s e n t e n c e r e a d s :

        A l t h o u g h f e d e r a l w a t e r r i g h t s c a n b e r e s e r v e d by
        implication            l i k e Indian reserved r i g h t s under
        W i n t e r s , t h e y a r e n o t b a s e d upon t r e , a t i e s .
                      M
                  -
DATED t h i s z 1 3 ~ day o f J a n u a r y , 1 9 8 6 .




                                                 Justices                          r
                                               No.    84-333

                    I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                     1985




STATE OF MONTANA, e x r e l . , MIKE GREELY,
A t t o r n e y G e n e r a l , WATER COURT OF THE
STATE OF MONTANA a n d THE JUDGES OF THAT
COURT.,
                                              Petitioners,



THE CONFEDERATED SALISH AND KOOTENAI
TRIBES OF THE FLATHEAD RESERVATION,
THE CROW TRIBE OF INDIANS OF THE CROW
RESERVATION, THE NORTHERN CHEYENNE TRIBE
OF THE NORTHERN CHEYENNE RESERVATION,
a n d THE UNITED STATES OF AMERICA,
I n d i v i d u a l l y and as T r u s t e e f o r t h e
Blackfeet Indian Nation o f t h e Blackfeet
R e s e r v a t i o n , t h e Chippewa-Cree T r i b e s o f
t h e Rocky B o y ' s R e s e r v a t i o n , t h e C o n f e d e r -
a t e d S a l i s h and Kootenai T r i b e s o f t h e
F l a t h e a d R e s e r v a t i o n , The C r o w T r i b e o f
t h e Crow R e s e r v a t i o n , t h e Gros V e n t r e ,
Sioux and A s s i n i b o i n e T r i b e s o f t h e F o r t
B e l k n a p a n d F o r t Peck R e s e r v a t i o n s , t h e
N o r t h e r n Cheyenne T r i b e o f t h e N o r t h e r n
Cheyenne I n d i a n R e s e r v a t i o n , a n d t h e T u r t l e
M o u n t a i n Chippewa T r i b e , a N o r t h D a k o t a
Tribe w i t h a l l o t m e n t s t o land i n t h e S t a t e
o f Montana,

                                                     Respondents.




ORIGINAL PROCEEDING:

COUNSEL OF RECORD:

           For P e t i t i o n e r s :

                       Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena., M.ontana
                       C l a y R. S m i t h a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a
                       Hon. W. W. L e s s l e y a r g u e d , C h i e f Water J u d g e , Bozeman,
                       Montana ; S a r a h A r n o t t a r g u e d , W a t e r M a s t e r , Bozeman

           For Respondents:

                      G o e t z , Madden & Dunn; James H . G o e t z a r g u e d f o r
                      C o n f e d e r a t e d S a l i s h a n d K o o t e n a i T r i b e s , Bozeman,
                      Montana : a l s o , D a n i e l F. D e c k e r a r g u e d , P a b l o ,
                      Montana
                      Byron H . D u n b a r , US A t t o r n e y , B i l l i n g s , Montana
                      W i l l i a m P. Horn, Under S e c r e t a r y US D e p t . of t h e
                      I n t e r i o r , W a s h i n g t o n , DC
                      P a t r i c k B a r r y , D i v i s i o n o f I n d i a n Lands a n d N a t u r a l
                      R e s o u r c e s , U D e p t . o f J u s t i c e , W a s h i n g t o n , DC
                                             S
                      A l l e n E. Rowland, P r e s i d e n t , N o r t h e r n Cheyenne T r i b a l
                      C o u n c i l , Lame Deer, Montana
                      Norman H o l l o w , C h a i r m a n , F o r t P e c k T r i b a l E x e c u t i v e
                      B o a r d , P o p l a r , Montana

( c o n t i n u e d , n e x t page)
(Respondents, continued)
                Robert S. Pelcyger, Boulder, Colorado
                Donald Stewart, Sr., Admin. Cha.riman, Crow Tribal
                Council, Crow Agency, Montana
                Thomas E. Luebben, Albuquergue, New Mexico
                Joseph R. Membrino, Jr., Asst. Solicitor, Div. Indian
                Affairs, US Dept. of Interior, Washington, DC
                Blake A. Watson argued, Land & Natural Resources Div.,
                Washington, DC
                Reid Peyton Chambers; Sonosky, Chambers & Sachse,
                Washington, DC
                Francis X. Lamebull, Harlem, Montana
                Franklin R. Perez, President, Fort Belknap Comm.
                Council-, Harlem, Montana
                John Windy Boy, Chairman, Chippewa Cree Tribe, Box
                Elder, Montana
                Richard LaFromboise, Chairman, Turtle Mountain
                Chippewa. Tribe, Belcourt, North Dakota
                Joseph Felsman, Chairman, Confederated Sa.lish &
                Kootenai Tribes, Pabl-o,Montana
                Earl Old Person, Chairman, Blackfeet Tribe, Browning,
                Montana
                Joseph J. McKay, Browning, Montana
                Calvin Wilson, Busby, Montana
                Philip E. Ray, Browning, Montana
         For Amicus Curiae:
                Jeanne S. Whiteing argued for Native American Rights
                Fund, Boulder, Colorado--/-   ' ' '"
                Steve Bunch argued, Montana Legal Services, Helena,
                Montana
                Nancy Richardson, Montana Legal Services, Browning,
                Montana
                D. Michael Eakin, Montana Legal Services, Billings,
                Montana



                                  Submitted:   April 111 1985
                                    Decided:   December 18, 1985


Filed:     DEC 1 8 1985



                                  Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
     On    July     13, 1979, this Court ordered the              statewide
adjudication of all water rights in Montana to be commenced
pursuant to S 85-2-212, MCA.          On August 3, 1984, the State of
Montana, ex rel. Mike Greely, Attorney General, filed an
application for writ of supervisory control of the Montana
Water Court and the judges of that court.               The State asked
this Court to assume original jurisdiction to determine two
issues: (1) Is Montana's Water Use Act adequate to adjudicate
federal and Indian reserved water rights? (2) Does Article I

of the Montana Constitution prohibit the Water Court from
asserting jurisdiction over reserved water rights held in
trust by     the United States for Indians and Indian tribes
within the State of Montana?                Both of these issues were
raised in the federal courts but left unresolved in                    San
Carlos     Apache    Tribe   v.   Arizona    and   Montana   v.   Northern
Cheyenne Tribe (1983), 463 U.S. 545, 570 fn. 20, reh. denied
104 S.Ct. 209-10; Northern Cheyenne Tribe v. Adsit (9th Cir.
1983), 721 F.2d 1187, 1188.
     The Attorney General requested permission to make an -
                                                          ex
parte presentation in support of the State's application for
the extraordinary writ.           We granted this request.        However,
prior to the State's presentation, the Confederated Salish
and Kootenai Tribes petitioned for permission to participate
as amicus curiae.       This Court scheduled limited oral argument
on   the    question    of   whether    it    should   assume     original
jurisdiction over the State's application.              The Water Court
joined     the State in requesting permission to proceed                to
adjudicate Indian and federal reserved water rights.
     Following argument before this Court en banc, we assumed
original jurisdiction to exercise supervisory control over
the Water Court and to determine three questions of first
impression regarding water rights in Montana.           Supreme Court
Order No.     84-333, dated January 23, 1985; State ex rel.
Greely v. Water Court of State (1984), 691 P.2d 833, 835, 41
St.Rep.     2373, 2375.       For purposes of oral argument on the
substantive issues, this Court designated the State and the
Water Court as co-petitioners.         Both requested permission for
the Water Court to proceed            to adjudicate reserved water
rights.      The United States of America, all of the Indian
tribes in Monta.na, and a North Dakota tribe with allotments
to land in Montana were designated as respondents.               State -
                                                                       ex
rel. Greely, 691 P.2d at 840, 41 St.Rep. at 2382.
      The    Montana       tribes petitioned   to withdraw       as named
parties and to appear as amici curiae.           These petitions were
granted.     The Turtle Mountain Chippewa Tribe 'of North Dakota
never respond.ed to these proceedings.         On its own motion, the
Court dismissed the Turtle Mountain Chippewa Tribe as a. named
respondent.     The Confederated Salish and Kootenai, the Crow
and the Northern Cheyenne Tribes later filed motions to be
reinstated as parties to this proceeding.          Their motions were
granted pursuant to San Carlos Apache, 463 U.S. at 566 f n .
17.   These four Montana Indian tribes remain as individually
named respondents.            The United States of America, appears
individually and as trustee for all the tribes with land in
                                                             ,            ,<,.

                      ex
                                                                  i   >


Montana.      State        rel. Greely, 691. P.2d at 840, 41 St.Rep.
at 2382.
      The issues for determination are:
      1.    Is the Water Court of Montana prohibited from exer-
cising jurisdiction over Indian reserved water rights based
on Article I of the 1972 Montana Constitution?
      2.    Is the Montana Water Use Act, Title 85, Chap. 2,
MCA, adequate to adjudicate Indian reserved water rights?
      3.    Is the Water      Use Act, Title 85, Chap.               2, MCA,

adequate to adjudicate federal reserved water rights?
      We hold that Art. I, Mont. Const. 1972 does not bar
state jurisdiction to adjudicate Indian reserved water rights
in Montana.        We hold the Montana Water Use Act adequate on
its face to adjudicate Indian and federal reserved water
rights.


      Is    the     Water    Court     prohibited         from     exercising
jurisdiction over Indian reserved water rights based on Art.
I, Mont. Const. 1972?

      Article I, Mont. Const. 1972, entitled "Compact with the
United States," guarantees that:
         All provisions of the enabling act of
         Congress (approved February 22, 1889, 25
         Stat. 676), as amended and of Ordinance
         No. 1, appended to the Constitution of
         the state of Montana and approved Febru-
         ary 22, 1889, including the agreement and
         declaration that all lands owned or held
         by any Indian or Indian tribes shall
         remain under the absolute jurisdiction
         and control of the congress of the United
         States, continue in full force and effect
         until revoked by the consent of the
         United States and the people of Montana.
      Several of the tribes argue that consent of the people
of Montana has not been given to the State to adjudicate or
control water on Indian lands.                 The tribes assert that a
popular vote of the people on. a constitutional amendment is
required.       They argue that the consent of the people to
Congress' revocation of absolute federal jurisdiction over
Indian     water    rights    cannot      be    granted    by     legislative
enactment.
      Montana      was   admitted    to    statehood      in     1889.     As     a
prerequisite to admission to the Union, a federal Enabling
Act   required      North    Dakota,      South    Dakota,       Montana        and
Washington to hold constitutional conventions and declare:
       That the people inhabiting sa.id proposed states do
       agree and declare that they forever disclaim all
       right and title to          ...
                                 all lands            ...
                                                  owned or
       held by any Indian or Indian tribes            ...
                                                  and that
       said Indian lands shall remain under the absolute
       jurisdiction and control of the congress of the
       United States,       ...
The Enabling Act, S          4 Second; 25 Stat. 676            (1889).     In
response to this requirement, Montana adopted Ordinance No.
I, Second f1889), and disclaimed any right or title to Indian
lands.     This Ordinance was "irrevocable without the consent
of    the United     States and the people of             ...     Montana."
Ordinance No. I, Sixth (1889).
       Similar disclaimer language was incorporated into the
constitutions of       many    of     the   western    states,    including
Alaska, Arizona, Idaho, New Mexico, North Dakota, Oklahoma,
South Dakota, Utah, Washington and Wyoming.                  See San Carlos
Apache, 463 U.S. at 561 fn. 12.             Colorado was admitted to the
Union in 1876 and was not required to insert a disclaimer in
its constitution.           The reason Montana was           subject to a
disclaimer requirement and Colorado was not "has more to do
with historical timing than with deliberate congressional
selection."     - Carolos
                San            Apache, 463 U.S. at 562.          However, a
substantial majority of Indian land, including most of the
largest     Indian     reservations,        lies    within    states     with
disclaimers in their constitutions.                San Carlos Apache, 463
U.S. at 561.
      Montana has seven Indian reservations with tribal claims
to reserved water rights on the Tongue River and Big Horn
River in the Yellowstone Basin, Milk and St. Mary systems,
Rig   Muddy    and   Poplar    River     systems, tributaries of          the
Missouri River, Flathead River system, Marias River system,
Flathead      Lake   with    the    Flathead   River    system, and       the
Rootenai River.       Western Network, What Indian Water Means -
                                                               To

- - 58-61 (1982).
the West                           Indian reservations in Montana are
considerable in       size    and    the potential amount of water
reserved is tremendous.
      In    1952, Congress diminished         the    scope of     absolute
federal jurisdiction by           allowing   state courts concurrent
jurisdiction    to    adjudicate      federal     water    rights.     The
McCarran Amendment gave consent for the United States to be
joined as a defendant in any suit:
       (1) for the adjudication of rights to the use of
      water of a river system or other source, or (2) for
      the administration of such rights, where it appears
      that the United States is the owner of or is in the
      process of acquiring water rights by appropriation
      under State law, by purchase, by exchange, or
      otherwise, and the United States is a necessary
      party to such suit.

43 U.S.C.    5 666(a).        "By enacting the McCarran Amendment,
Congress waived the sovereign immunity of the United States
to involuntary joinder as a party in state court general
water rights adjudications."             United     States v.    City and
County of Denver (Colo. 1983), 656 P.2d 1, 9.
      The McCarran      Amendment did        not expressly waive        the
sovereign    immunity    of    1ndia.n tribes.        Nevertheless, the
United States Supreme Court held in 1976 that the McCarran
Amendment applied to Indian water rights.                  Colorado River
Water Cons. Dist. v. U.S.        (1976), 424 U.S. 800, 809.
      The Colorado River decision resolved two questions that
had   not    been    previously      addressed.      First,     the   Court
concluded    that    the effect of the Amendment was to give
concurrent state and federal jurisdiction over controversies
involving federal rights to the use of water.                 Second, the
Amendment    extended    state      jurisdiction to       Indian reserved
rights as well as federal reserved rights.                Colorado River,
424 U.S. at 809 " [Blearing in mind the ubiquitous nature of
Indian water rights in the Southwest, it is clear that a
construction of the Amendment excluding those rights from its
coverage would enerva.te the Amendment's objective."    Colorado
River,   424 U.S. at 811.
     Prior to the 1976 Colorado River decision allowing state
courts to adjudicate Indian reserved water rights, Montana
adopted a new constitution.    Article I of the 1972 Montana
Constitution declares that all Indian lands in Montana "shall
remain under the absolute juri.sdiction and control of the
congress of the United States     ...   until revoked by the
consent of the United States and the people of Montana."     The
Constitutional Convention incorporated the federal Enabling
Act requirements into the new Constitution based upon the
requests of various tribes and upon the State's continued
commitment to   follow federal law with      respect to    Indian
lands.   VII Montana Constitutional Convention 2567-68 (1972).
    Montana's new constitution also      includes an      article
pertaining to water rights.    Article IX,   §   3, Mont. Const.
1972 states that:
     (1) All existing rights to the use of any waters
     for any useful or beneficial purpose are hereby
     recognized and confirmed.
     (2)  The use of all water that is now or may
    hereafter   be   appropriated   for   sale,   rent,
    distribution, or other beneficial use, the right of
    way over the lands of others for all ditches,
    drains, flumes, canals, and aqueducts necessarily
    used in connection therewith, and the sites for
    reservoirs necessary for col-lecting and storing
    water shall be held to be a public use.
     (3)   All    surface,   underground,  flood,   and
     atmospheric waters within the boundaries of the
     state are the property of the state for the use of
     its people and are subject to appropriation for
     beneficial uses as provided by law.
     (4)     The legislature shall provide for the
     administration, control, and regulation of water
     rights and shall establish a system of centralized
     records, in addition to the present system of local
     records.
     On June 6, 1972, the people of Montana ratified the
constitution, as submitted to them by the Constitutional
Convention.      The new constitution became effective on July 1,
1973.     Pursuant to Art. IX,       $   3!4),   Mont. Const. 1972, the
legislature enacted the Water Use Act of 1973.                 Sec. 2, Ch.
452, L. 1973.       The Water Use Act of Montana became effective
July 1, 1973.
     The Attorney       General's petition         asks this Court to
determine whether Art. I, Mont. Const. 1972, prohibits the
Water Court of Montana           from adjudicating Indian reserved
water     rights.      The   Attorney      General   asserts     that     the
constitutional disclaimer was intended to have the same scope
as the federal Enabling Act.         He argues that Art. I restricts
state jurisdiction only to the extent required by federal
preemption standards, and that state adjudication of Indian
reserved water rights is no longer preempted by federal law.
     The Water Court encourages this Court to bend to federal
Indian policy and to avoid piecemeal adjudication of water
rights by       allowing the state court to adjudicate Indian
reserved rights in Montana.
     The tribes argue that the disclaimer cannot be repealed
by implication and that express language must be employed to

change a constitutional provision.           They assert that the most
that the McCarran Amendment may have accomplished is to give
federal consent to the people of Montana to amend their
constitution.       They argue that until amended, the disclaimer
remains     a    separate    and   independent       barrier    to    state
jurisdiction over       Indian     lands   and    Indian water       on   the
reservations.
     The United States of America contends that the McCarran
Amendment removed all federal obstacles to state jurisdiction
and that the people of Montana manifested their consent by
enacting the Water Use Act.
      Various tribes and the Native American Rights Fund, as
amicus curiae,       argue that the constitutional disclaimer
stems from peace treaties between the United States and the
tribes.    In these treaties, the Indians agreed to subject
themselves to federal law and the United States agreed to
assume exclusive jurisdiction and           responsibility     for the
protection of the Indians and their lands.              The State of
Montana   was    carved    out   of   a    territory   where    Indian
reservations existed prior to Montana's statehood in 1889.
The constitutional disclaimers of 1889 and 1972 recognize the
federal government's exclusive jurisdiction over Indian lands
within the state.
      The United States Supreme Court has stated that:
      [Wlhatever limitation the Enabling Acts or federal
      policy may have originally placed on state-court
      jurisdiction over Indian water rights, those
      limitations were removed by the McCarran Amendment.
San Carlos Apache, 4 6 3 U.S. at 5 6 4 .
The Court did not, however, rule upon whether the Amendment
had    removed     state    limitations,      such     as    Montana's
constitutional disclaimer.
      [T]o the extent that a claimed bar to state
      jurisdiction in these cases is premised on the
      respective State Constitutions, that is a question
      of state law over which the state courts have
      binding authority.
San Carlos Apache, 4 6 3 U.S. at 5 6 1 .
      Art. I, Mont. Const. 1972 provides that all Indian lands
shall remain under the absolute jurisdiction and control of
the Congress until revoked by         the consent of the United
States and the people of Montana.           The term "the people"
appears fourteen times in the Preamble and the first three
articles of our Constitution.         "The framers used the term
'the people' as a shorthand reference to the citizens of the
entire State of Montana."            Anaconda-Deer Lodge County v.
Lorello    (1979), 181 Mont.        195, 197, 592 ~ . 2 d 1381, 1382.
       In State ex rel. McDonald v. District. Ct. of Fourth
J.D.   (1972), 159 Mont. 156, 496 P.2d 78, the Confederated
Salish and Kootenai Tribes challenged the State's assumption
of criminal jurisdiction over the Flathead Indian Reservation
without a constitutional amendment of the disclaimer clause.
This Court held       that the "consent of the people of the
state," as used       in Ordinance I, Sec.           2 of the     Montana
Constitution    (1889),      did    not    require    a     constitutional
amendment.   Congress had authorized states to assume criminal
and civil jurisdiction on Indian reservations under Public
Law 280, 67 Stat. 588, 590 (1953). Section 7 of Public Law
280 provides in pertinent part:
       The consent of the United States is hereby given to
       any   ...   State not having jurisdiction with
       respect to criminal offenses * * *, as provided for
       in. this Act, to assume jurisdiction at such time
       and in such manner as the people of the State
       shall, by affirmative legislative action, obligate
       and bind the State to assumption thereof.
In 1963, the Montana legislature enacted SS 83-801 through
83-806, R.CM, in substance obligating the State to assert
criminal jurisdiction over Indians on the Flathead Indian
Reservation.       Amendments to the original Public Law 280
required tribal consent.           That consent was granted on the
Flathead Reservation by enactment of a tribal ordinance.               See
McDonald, 159 Mont. at 160-61, 496 P.2d at 80-81.
       McDonald argued that without a constitutional amendment
by popular vote of the people, the state court could not
assert    jurisdiction    under     Public    Law    280.     This   Court
construed    Public    Law    280    and     Montana's      constitutional
disclaimer as follows:
       Ordinance I, Sec. 2 of the Montana Constitution
       simply provides that all Indian lands "shall remain
       under the absolute jurisdiction and control of the
        congress of the United States." This requirement
        was imposed by the United States upon the people of
        Montana as a precondition of statehood. Over 60
        years later the United States Congress, in the
        exercise of its absolute jurisdiction and control
        over Indian lands, enacted Public Law 280 granting
        the state of Montana criminal jurisdiction over
        offenses    committed   by   Indians    on   Indian
        reservations upon amendment of its constitution or
        statutes, where necessary, to remove any legal
        impediment.    Congress could at any time repeal
        Public Law 280 and terminate any jurisdiction of
        the state courts of Montana over crimes committed
        by Indians on Indian Reservations.     Thus Indian
        lands "remain under the absolute jurisdiction and
        control of the congress of the United States'
        within the meaning of Montana Constitution,
        Ordinance I, Sec. 2.     Accordingly, no constitu-
        tional amendment is necessary or required.
McDonald, 159 Mont. at 163, 496 P.2d at 81-82.         The Court
found the reasoning in two Washington cases to be persuasive.
        The state of Washington, under like constitutional
        provisions as Montana's, has held that the "consent
        of the people" necessary to revoke Washington's
        constitutional requirement that Indian lands "shall
        remain under the absolute jurisdiction and control
        of the congress of the United States" may be
        accomplished by legislative enactment and does not
        require a vote of the people on a constitutional
        amendment. State v. Paul, 53 Wash.2d 789, 337 P.2d
        33 (1959); Makah Indian Tribe v. State, 76 Wash.2d
        485, 457 P.2d 590 (1969). While we recognize we
        are not bound by this determination and that
        "consent of the people" does not necessarily mean
        the same thing in Washington's constitution as it
        does in Montana's constitution, the reasoning in
        Paul and Makah is nonetheless persuasive.
McDonald, 159 Mont. at 163-64, 496 P.2d at 82.         The Court
held that the legislative enactment of session laws was "a
valid    and   binding   consent of   the   people of Montana   to
criminal jurisdiction by state courts over Indians committing
criminal offenses on the Flathead Indian Reservation pursuant
to Public Law 280."      McDonald, 159 Mont. at 165, 496 P.2d at


    We recognize that Montana's assertion of Public Law 280
jurisdiction on the Flathead Reservation has i o bearing on
                                              z
the presence or absence of state jurisdiction over Indian
water rights.     In fact, Public Law 280 specifically withheld
from state courts jurisdiction to adjudicate ownership or
right       to       possession    of   "any water      rights."      25 U.S.C.
§   1322 (b)     .      However,    our    interpretation      of    the   phrase
"consent of             the   people,"     as    discussed   in    McDonald,    is
applicable to our holding here regarding "consent of the
people." in Art. I, Mont. Const. 1972.
       We    conclude that the legislature's enactment of the
Water Use Act constitutes a valid and binding consent of the
people of Montana to Congress ' grant of state jurisdiction
over Indian reserved water rights.
       We hold that Art. I, Mont. Const. 1972 does not prohibit
the Water Court of Montana from exercising jurisdiction over
Indian reserved water rights.
                                           I1
       Is the Montana Water Use Act adequate to adjudicate
Indian reserved water rights?
       State appropriative water rights and                   Indian reserved
water rights differ in origin and definition.                       See State ex7




- Greely, 691 P.2d at 841-42, 41 St.Rep.
rel.                                                                at 2383-85.
State-created water rights are defined and governed by state
law.     See Art. IX, 5 3(4), Mont. Const. 1972; 5 85-2-101,
MCA.    Indian reserved water rights are created or recognized
by federal treaties, statutes or executive order, and are
governed by federal law.                 The Water Use Act of Montana was
amended in 1985 to better reflect these distinctions.
       Most western           states, including Montana, adopted               the
prior appropriation doctrine under which water is apportioned
on the basis of use.              "As between appropriators, the first in
time i.s the first in right."                   Section 85-2-401 (1), MCA.      An
appropriator is generally entitled to a specified quantity of
water so long as actual, beneficial use is made of the water.
See    S 85-2-404, MCA.                 Generally,    an   appropriator    of    a
state-created right must divert, impound or withdraw water to
appropriate.        See S S 85-2-102 (1)    &   85-2-234 (5)(g), MCA.
     The doctrine of reserved water rights conflicts with
prior appropriation principles in several respects.                     Indian
reserved water rights were first enunciated in Winters v.
United    States      (1908), 207 U.S.          564.    The United      States
Supreme Court held that the 1888 agreement which resulted in
creation of the Fort Belknap Indian Reservation implied a
reservation of water          along with         the expressed     right to
exclusive possession of the land.                   Winters, 207 U.S.      at
575-76.       The     Court   implied   a       reservation   of   water   to
accomplish the purposes of the treaty agreement.               Quoting the
treaty, the Court held tha.t the amount of water reserved must
be sufficient to allow the Indians to become a "pastoral and
civilized people."
     The Indians had command of the lands and the
     waters-command of all their beneficial use, whether
     kept for hunting, "and grazing roving herds of
     stock," or turned to agriculture and the arts of
     civilization.
Winters, 207 U.S. at 576.
     Appropriative         rights   are         based   on    actual     use.
Appropriation for beneficial use is governed by state law.
Reserved water rights are established by reference to the
purposes of the reservation rather than to actual, present
use of the water.          The basis for an Indian reserved water
right is the treaty, federal statute or executive order
setting aside the reservation.                  Treaty interpreta.tion and
statutory construction are governed by federal Indian law.
     The federal courts have developed canons of construction
in Indian law that recognize the federal trust responsibility
to Indians.    Although originally applied to interpretation of
treaties, these judicial canons of construction have also
been applied in the a.rea of statutory construction.               Northern
Cheyenne Tribe v. Hollotp~breast (1976), 425 U.S. 649, 655 fn.
7; Squire v. Capoeman (1956), 351 U.S. 1, 6-7.
      Any ambiguity in a treaty must be resolved in favor of
the Indians.     Washington v. Fishing Vessel Ass'n (1979), 443
U.S. 658, 675-76; Confederated Salish              &    Kootenai Tribes, Etc.
v. Namen (9th Cir. 1982), 665 F.2d 951, 962, cert. denied 459
U.S. 977 (1982).     Treaties must be interpreted as the Indians
themselves would have understood them.                  Fishing Vessel Ass'n,
443 U.S. at 676; Choctaw Nation v. Oklahoma (1970), 397 U.S.
620, 631.      Indian treaties must be liberally construed in
favor of the Indians.           Tulee v. Washington (1942), 315 U.S.
681, 684-85; United States v. Walker River Irr. Dist.                        (9th
Cir. 1939), 104 F.2d 334, 337.
      Foremost among these federal Indian law principles is
that "the treaty is not a grant of rights to the Indians, but
a grant of rights from them              --   a reservation of those not
granted."      United States v. Adair (9th Cir. 1983), 723 F.2d
1394, 1412-13, cert. denied 104 U.S.                    3536     (19841, quoting
IJnited States v. Winans (1905), 198 U.S. 371, 381.                    See also,
Fishinq Vessel Ass'n 443 U.S. at 678               &    680-81; United States
v. Wheeler     (1978), 435 U.S.          313, 327 n.           24; Mlamath Ind.
Tribe v. Or. Dept of Fish           &    Wildlife       (9th Cir. 1984), 729
F.2d 609, 611.
      Treaties do not implicitly diminish aboriginal holdings.
Uninterrupted     use     and     occupation           of   land    can   create
"aboriginal title."        See United States v. Kla.math Indians
(1938), 304 U.S. 119, 122-23; Adair, 723 F.2d at 1413.                       Only
the   United    States can       extinguish        such     aboriginal    title.
United States v. Tillamooks (1946), 329 U.S.                       40, 46.      An
Indian      reservation    will         be    defined       to     protect    any
pre-existing     possessory      rights       of   the      Indians    unless    a
contrary intent clearly appears in the document or statute
that created the reservation.              United States v. Santa Fe
Pacfic R. Co.       (1941), 314 U.S.       339, 353-54.       " [S]tatutes
passed for the benefit of the Indians are to be liberally
construed and all doubts are to be resolved in their favor."
Hollowbreast, 425 U.S.        649, 655 n.       7.     When adjud.icating
Indian reserved water rights, Montana courts must follow
these principles of construction developed by the federal
judiciary.
       Montana's Water Use Act, as amended, permits the Water
Court to treat Indian reserved water rights differently from
state      appropriative      rights.           See      S S 85-2-224 ( 3 ) ,
85-2-231 (1)(c) , 85-2-234 (4)     &    (6) and 85-2-701 through -705,
NCA.    The Act recognizes and confirms "existing rights to the
use of any waters for any useful or beneficial purpose."
Section 85-2-101(4), MCA.          "Existing right1'means a right to
the use of water which would be protected under the law as it
existed prior to July 1, 1973.              Section 85-2-102(8), MCA.
       The definition of "beneficial use" in the Act includes:
"use of water for the benefit of the appropriator, other
persons,      or   the   public,    including    but    not   limited     to
agricultural       (including stock water),          domestic, fish and
wildlife, industrial, irrigation, mining, municipal, power,
and    recreational uses. "        Section 85-2-102 (2), MCA.           This
definition recognizes nonconsumptive and instream uses for
fish    and   wildlife.      It    is   sufficiently broad       to   allow
adjudication of water reserved to protect tribal hunting and
fishing rights, including from the depletion of streams below
a protected protection level.            See Adair, 723 F.2d at 1411,
citing Cappaert v. United States (1976), 426 U.S. 128, 143.
     The Act permits tribes to negotiate with the State and
agree upon the extent of the reserved water rights of each
tribe. Section 85-2-702, MCA.            In order to be binding, a
negotiated    compact between      the    State and    tribe must   be
ratified by the Montana legislature and the tribe.             Section
85-2-702 (3), MCA.       The terms of any ratified compact must be
included     in    the    Water   Court's    final    decree   without
alteratj-on, unless the State and the tribe have given prior
written consent.      Section 85-2-234(2), MCA.
     The date of priority of an Indian reserved water right
depends upon the nature and purpose of the right.              In many
instances, the federal government's plan to convert nomadic
Indians into farmers involved a new use of water.          If the use
for which the water was reserved is a use that did not exist
prior to creation of the Indian reservation, the priority
date is the date the reservation was created.              Arizona v.
California (1.963), 373 U.S. 546, 600 (irrigation held to be a
new use with an 1865 priority date).                 A different rule
applies to tribal uses that existed before creation of the
reservation.      Where the existence of a preexisting tribal use
is confirmed by treaty, the courts characterize the priority
date as "time immemorial."        Adair, 723 F.2d at 1414.      See R.
Collins, Indian Allotment Water Rights, 20 Land and Water Law
Review 421, 426 fn. 20 (1985), discussing United States v.
Gila Valley Irrigation Dist., No. 59 Globe Eq., decree at 86
(D. Ariz. June 29, 1935) (decree of water with "immemorial
date of priority" to Gila River Tribes, whose members have
been irrigators before European contact; decree of water with
reservation priority        to Apaches, who     had    not previously
irrigated.)
     More than one priority date may apply to water rights
reserved by the same tribe.              The Klamath Indian Tribe's
Treaty     of    1864    recognized       tribal   agriculture,      hunting,
fishing and gathering.             The Ninth Circuit Court of Appeals
held that irrigation was a "new use" and had a priority date
of 1864.        The latter purposes were based on tribal uses that
existed before creation of the reservation.                  Water reserved
for hunting and fishing purposes had a priority date of "time
immemorial."      Adair, 723 F.2d at 1412-15.
     The Montana Water Use Act does not define priority date.
Section    85-2-224(3)(d),         MCA,    directs    the    reserved   right
claimant to       include       "the priority      date claimed" in         its
statement of claim to the Water Court.                The Act permits the
Water Court to apply federal law in d.etermining a proper
priority date for each Indian reserved water right.
     Winters rights are difficult to quantify.                    Because the
purposes of each reservation differ, federal courts have
devised    several general quantification standards.                    These
standards differ depending upon the purpose for which the
water was reserved.
     For agricultural purposes, the reserved right is a right
to   sufficient         water     to   "irrigate     all    the   practicably
irrigable       acreage     on     the    reservation."           Arizona   -
                                                                            v.
California, 373 U.S. at 600.             Arizona - California
                                                 v.                  involved
agricultural Indian reservations with                 Winters     rights    for
irrigation purposes.            The Court noted that present and future
needs should be quantified with reference to the practicably
irrigable acreage on each reservation.                     Individual Indian
allottees have a right to use a portion of water reserved for
agricultural purposes.                                          ,
                                  United States v. Powers (1.939) 305
U.S. 527, 531.       An Indian allottee may use water for present
and future irrigation needs based on "the number of irrigable
acres he owns."         Colville Confederated Tribes v. Wal-ton (9th
Cir. 1981), 647 F.2d             42, 51. "[Tlhe full measure of this
right need not be exercised immediately."       Adair, 723 F.2d at
1416.
     The right to water reserved to preserve tribal hunting
a.nd fishing rights is unusual in that it is non-consumptive.
A reserved right for hunting and fishing purposes "consists
of the right to prevent other appropriators from depleting
the stream waters below a protected level in any area where
the non-consumptive right applies."       Adair, 723 F.2d at 1411.
     The      Supreme     Court    held      that,     under       the
implied-reservation-of-water-rights       doctrine,    Indians     are
entitled to sufficient water "to develop, preserve, produce
or sustain food and other resources of the reservation, to
make i.t livable."    Arizona - California, 373 U.S. at 599-600
                              v.
[decree entered, 376 U.S.       340, (1964)l.    I [I]
                                                 '    ndian treaty
rights to a na.tura1 resource that once was thoroughly and
exclusively exploited by the Indians secures so much as, but
no more than, is necessary to provide the Indians with a
livelihood   --   that is to say, a moderate living."    Washington

- Fishing Vessel Ass'n, 443 U.S. at 686.
v.
     The Winters Court held that reserved water on the Fort
Belknap Reservation could be beneficially used for "acts of
civilization" as well as for agricultura.1 purposes.          Winters,
207 U.S. at 576.      It may be that such "acts of civilization"
will include consumptive uses for industrial purposes.              We
have not found decisive federal cases on the extent of Indian
water rights for uses classed as "acts of ci~rilization."
     It is clear, however, that Indian reserved water rights
may include future uses.      Arizona - California, 373 U.S. at
                                      v.
600-01; United States v.       Ahtanum Irrigation District (9th
Cir. 1964), 330 F.2d 897, 914.       Most reservations have used
only a fraction of their reserved water.             National Water
Commission, Water       Policies - - Future
                                 for the              51-61          .
                                                               (1.973)
However, reserved rights may reflect future need as well as
present     use.          For   example,      the    "practically        irrigable
acreage" standard applies to future irrigation of reservation
land,      not     present        irrigation        practices      and     current
consumptive uses.
      The    Water        Use   Act,   as    amended, recognizes           that    a
reserved right may exist without a present use.                            Section
85-2-224 ( 3 ) , MCA, permits a "statement of claim for rights
reserved under the laws of the United States which have not
yet been put to use."           The Act permits Indian reserved rights
to be decreed without a current use.                      Section 85-2-234 (6),
MCA, requires the final decree of tribal water rights to
state, among other things:
      (e) the purpose for which the water included. in the
      right is currently used, - - -
                               if at all;
      ( £ 1 the place of use and a description of the land,
      if any, to which the right is appurtenant;
      -
        (g) the place and means of diversion, - -
                                              if any                   ...
(~mphasissupplied. )
      Section 85-2-402, MCA,                includes extensive provisions
which are to be applied in the event of a proposed change in
use   or    in     appropriation       right.        In    a   comparable way,
S 85-2-404,        MCA,    sets    forth     a   standard      under     which    an
appropriator may abandon a wa.ter right.                       It may be argued
that these sta.tutes might allow an improper limitation on
Indian reserved rights result in abandonment for nonuse.                          We
presume     that    the Water Court will not apply these code
sections in an improper manner to the claimants of Indian
reserved water rights.            Federal Indian law must be applied in
these areas as well.
      Several tribes have claimed that the involvement of the
Department of Natural Resources with the Water Court prior to
issuance of preliminary decrees may violate the requirements
of   due    process.      Section 85-2-243, MCA, authorizes the
Department to assist the Water Court, ir~cludincjcollecting
information       and     conducting     field          investigations      of
questionable claims.       While we recognize that the Act places
no limits on the manner in which the Water Court utilizes the
information furnished by the Department, we will not presume
any improper application of the Act on the part of the Water
Court.     Actual violations of procedural due process and other
issues regarding the Act as applied are reviewable on appeal
after a factual record is established.
      In    a   similar   manner,   it   may       be    contended   that    S
85-2-316, MCA, which limits the reservation of future uses to

certain river basins, sets forth an improper limitation on
Indian reserved rights. We also presume that the Water Court
will not apply these statutes without regard to controlling
federa.1 law on Indian wa.ter rights.
     We recognize tha.t the Water Use Act of Montana does not
explicitly state that the Water Court shall apply federal law
in adjudicating Indian reserved rights.             However, we conclude
that is not fatal to the adequacy of the Act on its face.                   We
hold that state courts are required to follow federal law
with regard. to those water rights.
     We recognize the fear on the part of various parties
that the subjection of Indian water rights to state court
jurisdiction will of necessity hurt the Indian people.                      We
quote again from San Carlos Apache:
         Mere subjection of Indian rights to legal
         challenge in state court        .
                                     . would no.
         more imperil those rights than would a
         suit brought by      the Government in
         district court for their declaration              . .
           .. The Government has not abdicated any
         responsibility fully to defend Indian
         rights in state court, and Indian
         interests may be satisfactorily protected
         under regimes of state law.           The
         Amendment   in   no   way  abridges any
       substantive claim on behalf of Indians
       under the doctrine of reserved rights.
       Moreover,   as    Eagle   County    said,
       "questions [arising from the collision of
       private rights and reserved rights of the
       United States], including the volume and
       scope of particular reserved rights, are
       federal questions which, if preserved,
       can be reviewed [by the Supreme Court]
       after final judgment by the Colorado
       court." 401 U.S., at 526.
463 U.S. at 551, quoting Colorado River, 424 U.S. at 812-13.
      The United States Supreme Court reserves the right to
review state court adjudications of Indian reserved water
rights.   As emphasized in - Carlos Apache:
                           San
       [Olur decision in no way changes the
       substantive law by which Indians rights
       in state water adjudications must be
       judged. State courts, as much as federal
       courts, have a solemn obligation to
       follow federal law.        Moreover, any
       state-court decision alleged to abridge
       Indian water rights protected by federal
       law can expect to receive, if brought for
       review     before     this    Court,    a
       particularized    and exacting scrutiny
       commensurate with the powerful federal
       interest in safeguarding those rights
       from state encroachment.
463 U.S. at 571.
      We conclude that the Montana Water Use Act on its face
is   adequate   to   adjudicate Indian reserved water   rights.
Should the Water Court abridge Indian reserved water rights
by   improperly applying the Act and the federal law that
protects those rights, that failure can be appealed to this
Court as well as to the Supreme Court of the United States
for "a particularized and exacting scrutiny."


                               I11

      Is the Water Use Act of Montana adequate to adjudicate
federal reserved water rights?
      In order to     construe the adequacy of the Act with
reference to federal reserved rights, we must consider how
federal-ly-created reserved rights differ from state-created
appropriative rights.          We also consider the distinctions
between federal reserved rights and Indian reserved rights.
       Federal reserved rights differ from state appropriative
rights     in    origin,   determination        of    priority   date,    and
quantification standards.              As    noted    above, appropriative
water rights are state-created and in general originate from
actual use of the water.        Generally speaking, their priority
date is the date the water was                  first put to use for a
beneficial purpose.          They are quantified on the basis of
present use.      They are governed by state law.
       "Federal water rights are not dependent upon state law
or state procedures        . . .   "         Cappaert, 426 U.S.       at 145.
Federal    reserved    rights are           created by    federal statute,
executive order or agreement.                Their priority date is the
date that the federal lands were withdrawn from the public
domain for federal purpose.        Quantification is not based upon
actual use, but upon "minimal need" to fulfill the purposes
of the reservation of federal lands.                 Cappaert, 426 U.S. at
141.
       Federal    reserved    water         rights    differ   from    Indian
reserved water rights in origin, ownership, determination of
priority    date,     the manner       in which       the purpose of      the
reservation      is   determined, and          qua.ntification standards.
       The first distinction is origin.              Although federal water
rights can be reserved by implication, like Indian reserved
rights under Winters, they are not based upon treaties.
Federal water rights are based upon statute, executive order
or agreement.
       A non-Indian federal reserved water right      is       ...
       created when Congress or the President through an
       order or agreement reserves or dedicates public
       lands to a use or program requiring the use of
       water in order to carry out the purpose for which
       tHe reservation is made.
W.     Coldiron,    Non-Indian   Federal    Reserved   Water   Rights,
Montana Lawyer 5 (Jan. 1985)       .   Federal reserved- water rights
are created by the document that reserves the land from the
public domain.      By contrast, aboriginal-Indian reserved water
rights exist from time immemorial and are merely recognized
by the document that reserves the Indian land.                 Federal
reserved water rights, on the other hand, are created by and
cannot predate the document that reserved the federal land
from the public domain.
       Form of ownership is another distinction between federal
and Indian reserved water rights.          The United States is not
the owner of Indian reserved rights.         It is a trustee for the
benefit of the Indians.          Its powers regarding Indian water
rights are constrained by its fiduciary duty to the tribes
and allotees, who are the beneficiaries of the land that the
United States holds in trust.          Indian reserved water rights
are "owned" by the Indians.
       The United States owns federal reserved water riqhts.
Although a public trust argument might be made with reference
to national parks and wilderness areas, the United States can

lease, sell, quitclaim, release, encumber or convey its own
federal reserved water rights.
       Determination of the priority date of a reserved right
is not based upon actual use by Indians or the United States.
The priority date of federal reserved water rights is always
the date on which the federal land was reserved from the
public domain.       Unlike Indian reserved rights, there is no
need    to   look   to the purpose      and nature of the      federal
reservation in order to determine the priority date of a
right reserved by the federal government because there is no
such thing as a.borigina1 use by the government.
      The quantification standard for federal reserved water
rights is a "minimal need" standard.                   "The implied-reserva-
tion-of-water doctrine                 ...   reserves only that amount of
wa.ter necessary              to    ful.fill the    primary    purpose   of     the
reservation, no more."                 Cappaert, 426 U.S. at 141-42; United
States v. New Mexico                 (1978), 438 U.S.      696, 700.      Unlike
Indian reserved rights, which include water for future needs
and changes in use, federal reserved rights are quantified on
the   basis      of           the   original,   primary       purposes   of     the
reservation.          Water for secondary purposes is not factored
into the quantification.                 See Cappaert, 426 U.S. at 141-42.
      The   Colorado            Supreme Court       summarized    the    test   of
federal reserved rights as follows:
      For each federal claim of a reserved water right,
      the trier of fact must examine the documents
      reserving the land from the public domain and the
      underlying legislation authorizing the reservation;
      determine the precise federal purposes to be served
      by such legislation; determine whether water is
      essential for the primary purposes of the
      reservation; and fina1l.y determine the precise
      quantity of water - the minimal need as set forth
      in Cappaert and New Mexico -- required for such
      purposes.
United States         ~ 7 .   City and County of Denver (Colo. 1983), 656
P.2d 1, 20.       There are no special canons of construction for
interpreting the documents that create federal reserved water
rights.         The     purposes        for which    the   federal government
reserves land are strictly construed.                 See Cappaert, 426 U.S.
at 141-42        (preservation of Devil's Hole Monument to the
extent necessary to preserve its scientific value, hut not
necessarily       its         scenic    features);   United     States -
                                                                       v.       -
                                                                                New
Mexico, 438 U.S. at 705 (original national forest purpose not
extended    to aesthetic, recreational and                    fish-preservation
purposes)   .    The purposes of Indian reserved rights, on the
other hand., are given broader interpretation in order to
further the federal goal of Indian self-sufficiency.                        United
States v. Finch (9th Cir. 1976), 548 F.2d 822, 832, reversed
on other grounds 433 U.S.               676 (1977); pyramid ~ a k e~ a i u t e
Tribe of Indians v. Morton                (D.D.C.     1973), 354 F.Supp.       252
(water reserved in quantities sufficient to sustain implicit
purpose      of       fishing     as   well     as     explicit     purpose    of
agriculture).
      Under       current       federal      1a.w, federal    reserved       water
rights, like Indian reserved water rights, are immune from
abandonment for nonuse.            The Monta.na Water Use Act recognizes
the   distinction          between        federal     reserved      rights     and
state-created appropriative rights.                    Sections 85-2-234 ( 6 ) ,
MCA, lists the information that shall be included in a final
decree for a "federal agency possessing water rights arising
under the laws of the United States."                      Three of the eight
requirements are conditional:                  the purpose for which the
water is currently used, if at all; the place of use and a
description of the              land, if any, to which the right is
appurtenant; and the place and means of diversion, if any.
Subsections        (el,     (£1    &   (g)    of     85-2-234(6),    MCA.      No

conditional       language        is   used     in   the   list     of   required
information for final decrees of state-created appropriative
rights.   See     §   85-2-234(5)      MCA.

      Section 85-2-404(2), MCA, pertains to abandonment and
provides :
      If an appropriator ceases to use all or part of his
      appropriation   right    or   ceases    using   his
      appropriation right according to its terms and
      conditions for a period of 10 successive years and
      there was water available for his use, there shall
      be a prima facie presumption that the appropriator
      has abandoned his right in whole or for the part
      not used.
As noted above, federal law controls federal water rights.
Current federal law d-oes not permit abandonment of reserved
rights for nonuse.    As noted in Part 11, "[sltate courts, as
much as federal courts, have a solemn obligation to follow
federal law."    San Carlos Apache, 463 U.S. at 571.           The Water
Court like any other court must          follow federal law when
federal   law conflicts with      state law.      Unless      and   until
federal law is changed, a Montana decree of abandonment of a
federal reserved water right would be improper.            We conclude
that, to the extent necessary to fulfill the purposes of the
reservation, federal reserved water rights cannot be decreed
to be abandoned by reason of nonuse.              We note that the
Co1orad.o Supreme Court has rea-ched an identical conclusion
with reference to federal reserved rights in that state.             See
United States v. City and County of Denver (Colo. 1983), 656
P.2d 1, 34-35.
     The McCarran Amendment altered federal procedural law by
permitting state courts to adjudicate federal reserved water
rights.   Neither the McCarran Amendment nor any subsequent
federal   case    interpreting    that     statute      has    modified
substantive federal law.         Congress '    grant of       concurrent
jurisdiction to the states to adjudicate federal water rights
in no way diminished the nature of those substantive rights.
     Based upon our analysis of the distinctions between
federal reserved water rights, Indian reserved water rights,
and state appropriative use rights and the manner in which
the Water Use Act permits each different class of water
rights to be treated differently, we hold that the Act is
adequate on its face to allow the Water Court to adjudicate
federal   reserved   rights.     Because      federal   law    controls
federal reserved rights and challenges to the manner in which
the Water Court adjudicates these rights turns upon the facts
of each adjudication, we reserve ruling on whether the Act is

adequate as applied.
     The Water Court   is directed to proceed   in accordance
with this opinion, with the adjudication of water rights,

including Indian and federal reserved




     Mr. Justice Fra.nk B. Morrison
for a later time.                                     .
                                        reserves his opinion
