From: Becky Bohrer, Associated Press
Published November 29, 2004 12:00 AM

Dispute over Montana Riverbed Roiling along Northern Cheyenne Reservation

ASHLAND, Mont. - For the Northern Cheyenne, it's about defending a special resource and the border of their reservation. For an energy development firm, it's about business. And for Montana's governor, it's about protecting the state's financial interests and assets, which she insists include the bed of the Tongue River.


Ownership of the riverbed, along the eastern border of the tribal reservation in southeastern Montana, is at the heart of a legal dispute over leases the state sold to Fidelity Exploration & Production Co. for natural gas development.


The big question: When the boundary of an Indian reservation is a river, who owns the riverbed?


The tribe insists it owns at least half the width of the riverbed. The state believes it owns the entire riverbed and had the right to sell leases to Fidelity.


"The ramifications are huge," said Eugene Little Coyote, the tribe's newly elected president. "It could affect everything -- our culture, our sovereignty, our water quality. ... This is probably the most pressing tribal issue we have now."


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Denver-based Fidelity filed a lawsuit in July, asking a judge to determine who owns the riverbed. The company did so after its attorneys noticed an apparent conflict in ownership: While the state sold Fidelity the mineral leases in 2002, a federal order signed in 1900 that extended the reservation's eastern boundary to the river said the Northern Cheyenne had interest in at least half the width of the riverbed.


Mike Caskey, Fidelity's executive vice president and chief operating officer, said the company sees itself as a "innocent third party" that got wrapped into a dispute over ownership.


"We can't do anything until we know who owns (the land)," he said.


Giving up the leases now isn't an option, Caskey said. Though officials are not sure what gas potential the leases hold, they do consider them valuable, and the company is supporting efforts by Gov. Judy Martz to intervene, he said.


The governor's chief legal counsel, James Santoro, argued in court documents that the state needs to protect ownership rights to the riverbed and royalties and taxes from any natural gas development that occurs.


The argument is based in part on the "equal footing doctrine," which Santoro said gives the state ownership of the bed of all navigable rivers in its boundaries, including the Tongue River.


But some tribal members see the state's effort as an affront to their sovereignty and as having the potential to strain the relationship between the state and the tribe.


"I am totally appalled," said Geri Small, the former Northern Cheyenne president.


Fidelity named as defendants the federal government, including the Interior Department, Bureau of Indian Affairs, Interior Secretary Gale Norton and Dave Anderson, the assistant interior secretary for BIA.


The company argues that while the tribe's claim dates to 1900, Montana has a "prior and superior ownership claim" as a state government since 1889.


A call to attorney Patricia Miller with the Justice Department was referred to a department spokesman, who declined comment on pending litigation.


The situation bothers Kenny Medicine Bull, who lives near the Tongue River. He worries about potential problems stemming from pollution.


Drilling for coal-bed methane involves releasing groundwater to relieve pressure holding gas in coal seams. Some farmers and conservationists argue that water released is often salty or of poor quality and could harm crops or other vegetation.


Development has been a concern for the tribe. Last year, it sued the federal government, claiming the Bureau of Land Management failed to fully study how coal-bed methane development in the region could affect the environment and way of life on the reservation.


The Tongue River is a part of the Northern Cheyenne's cultural identity, according to Little Coyote.


Growing up, he fished in the river, which flows behind his childhood home south of Ashland, and leapt from its grassy banks to swim. A sweat lodge stands along the water's edge so participants can bathe afterward. Plants used for tribal ceremonies grow near the river, he said.


"Personally, having grown up along the river, it's tied to my identity. It's attached to our sovereignty as well," said Little Coyote.


Source: Associated Press


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