Okay, I will reply only on this thread, not the others. Yes, Montana v. United States
confirmed that a tribal government can prohibit nonmembers from hunting and fishing on the LAND surrounding the river, but cannot do so on the bed and banks of the RIVER. This is consistent with centuries of law and previous U.S. Supreme Court decisions, holding that public rights on rivers are not at the discretion of the owner of the surrounding land. (Cited on the new free posters and handouts at nationalrivers.org, and in the book Public Rights on Rivers.
The river in dispute was the Big Horn River in Montana, a typical western river with shallow places, gravel bars, and rapids, navigable in rafts, canoes, kayaks, and other small boats, but not in ships or barges. (You can read the case at openjurist.org.) The users of the river were noncommercial. The state of Montana sought to protect noncommercial public navigation and fishing rights on the river, while the Tribe sought to exclude the public. The U.S. Supreme Court said, “To resolve the conflict between the Tribe and the State, the United States, proceeding in its own right and as fiduciary for the Tribe, filed the present action, seeking a declaratory judgment quieting title to the riverbed in the United States as trustee for the Tribe and establishing that the Tribe and the United States have sole authority to regulate hunting and fishing within the reservation, and an injunction requiring Montana to secure the Tribe's permission before issuing hunting or fishing licenses for use within the reservation.” In other words, lawyers for the Department of the Interior, Bureau of Indian Affairs, sought to prevent public use of the river. However, they lost the case. The U.S. Supreme Court confirmed the navigational easement “for the benefit of the public, regardless of who owns the riverbed,” including public rights to engage in “sport fishing and duck hunting,” despite the objections of the Department of the Interior and the Tribe.
In sum, the case confirms public rights to navigate noncommercially on typical western rivers flowing through Department of the Interior lands, despite the objections of the Department of the Interior. This is the latest thing the U.S. Supreme Court has said on the subject. The Court is not going to reconfirm this principle river by river.
Even so, the public right to navigate rivers does not include unlimited quantities of people, on a long river trip with only limited camping places. In the Grand Canyon, the National Park Service can deny access to noncommercial applicants when the river is already fully reserved by other specific, named people, planning to go on commercial and noncommercial trips. However, it cannot deny access for an arbitrary and unlawful reason, such as when there is ample vacant space on the river, and the reason for the denial is to preserve arbitrary allocations to commercial operators, thereby requiring the public to pay those operators in order to gain access to the river in a timely manner.
Have a nice day.
– Eric Leaper, for the National Organization for Rivers (NOR.) (Home - National Organization for Rivers