When I first started my quest to learn more about the CSKT Reserved Water Rights compact, I began with the following assumptions:
- Article 9, Section 3 of the Montana Constitution would fully ensure that water rights for all Montanans would be protected in this process
- A well informed and engaged public could influence or have an impact on the final outcome to ensure the needs of all parties was in fact reflected in the compact that went before the legislature.
- That the goal of the negotiating parties was to reach a fair outcome that took into consideration not only the water needs of all parties involved, but also the damage that will occur to some segments of the population if major changes in water rights were part of the final product.
I now understand how naive these simple premises were, and have since come to the conclusion these assumptions may not necessarily be part of the process at all.
DO PUBLIC MEETINGS FOSTER A FALSE SENSE OF REPRESENTATION?
One of the biggest eye openers came at the Water Compact meeting in Polson on Wednesday June 27th. The meeting had a strong public showing, and many good questions were addressed to the negotiating parties. At that meeting, the question was asked if the parties had ever taken into consideration the monetary costs associated with the loss of water rights for non-tribal people in western Montana. The answer was a quick NO, because under the Hellgate treaty, they never really had the rights in the first place.
Talk about a punch in the stomach!!!!!
This response begs the question as to why there are public meetings at all?
Are these meetings only intended as a means to give the general public a preview of all they have to lose in this deal?
Are the meetings designed to appease and to lull the public into the false sense that their concerns are being addressed at that table?
Or is the state just fulfilling their obligatory duty to hold public meetings that ultimately will have no influence on an already predetermined outcome?
Anyway you look at it, there is a problem with these negotiations, and all voices in this matter have not been heard, nor have they even been considered.
Being a relative newcomer to this issue, and what follows here is in an attempt to sort out my thoughts and understanding thus far.
FIRST A BRIEF HISTORY
Americans are well aware of the indiscretions and mistreatment of native Americans in our nation’s history. I don’t know a soul who doesn’t lament the way they were treated, and wish that part of our history had played out differently. I also don’t know of anyone who is not for the water rights of all people, after all, water is a necessity for all life on this planet.
In 1855, the treaty of Hellgate set aside a reservation solely for the Flathead Indians. Although the tribe opposed it, Congress passed the 1904 Flathead Allotment Act. After allotments of land to individual households of members on the tribal rolls, the government declared the rest “surplus” and opened the reservation to homesteading. Thousands of acres on the reservation were reserved for town sites, schools and the National Bison Range. Tribal members were given first choice of either 80 or 160 acres of land per household. The rest was made open to whites in 1910. This caused much resentment by the tribe, and the allotment of reservation lands remains a very sensitive issue. This is something we can all understand.
But is also must be remembered that the homesteaders arrived with little if any knowledge of the history behind the allotment. Instead the settlers were motivated by advertised assurances of “one of the most desirable sections of the whole United States in which to live”.
In 1924, the Indian Citizenship Act was passed. Under this law, indigenous people did not have to apply for citizenship, nor did they have to give up tribal citizenship to become a U.S. citizen. This is because most tribes had communal property and Indians needed to belong to the tribe to have a right to the land. Thus, dual citizenship was allowed.
In both instances, the federal government fell short when they did nothing to diminish or alter the standing of the Hellgate treaty when these events took place. Instead, the starting premise of these negotiations is that the Hellgate treaty stands as it was written, without taking historical events into consideration. No earnest attempts have been made by the government to clarify or define the relationship of native to non-native populations on the reservation with regard to that treaty. The consequences of this inaction by the government are literally being played out in the Reserved Water Rights compact negotiations taking place today. Instead of one people living under the constitutions of the state of Montana and the United States, we see over representation of one segment of the population pretty much to the detriment of the other.
This history lays the foundation for today’s reserved water rights compact negotiations that began more than a decade ago.
PRESENT DAY NEGOTIATIONS
So now, with that bit of history under our belt, let’s return to the present and the compact commission’s statement that they had not considered the cost associated with the loss of water rights for non-tribal citizens because they never had the rights in the first place. In the context of history, a reasonable person could assume that the government opened the reservation to non-tribal homesteaders under false pretenses.
Do you think anyone living in western Montana in the past 100 years might have thought twice about purchasing land or relocating here if they knew that at some point in the future, the tribe would hold senior water rights over them, and could control how much water they are able to use?
Would a reasonable person choose to place their ability to earn a livelihood, their blood, sweat and tears, their own family legacy in the hands of a people who willingly admit they resent them being here in the first place?
Were settlers in western Montana defrauded by the federal government when they were invited to settle here so many years ago?
WHERE DOES THE FEDERAL GOVERNMENT STAND ON THIS ISSUE?
The state legislature created the compact commission to reach an agreement with the federal government on how much water was necessary to fulfill the purposes for which the reservation was set aside in the first place. At the compact meeting on the 27th, Duane Mecham from the Department of Interior stated that it is their position to allow the state and the tribe to work the details of the compact out and in their role as trustee for the tribe, to “assist” the tribe on the finer points of the negotiations.
So the federal government is saying that whatever the tribe thinks the intent of the treaty was is fine by them, and the tribe’s overreaching, mind boggling water grab throughout western Montana is a reasonable interpretation of the intent of the federal government in 1855.
How is it possible our state and federal government, both created by the people, would allow 7,800 people to maintain and control the water rights of 300,000 or more people? How much water do 7,800 people really need? Who has the authority to say the approximately 350,000 other people in the area don’t deserve a pro-rata share, or that they don’t have as strong of a connection to the water as the tribe?
THE ELEPHANT IN THE ROOM: THE UNITARY MANAGEMENT ORDINANCE
This aspect of the compact is particularly troubling because it represents the potential for the rights of non-tribal residents living within reservation boundaries to be diminished even further.
On the table is a proposal by the tribe to establish a Water Management board for all water interests within reservation boundaries, federal, state and tribal. It’s unprecedented, and has the potential of placing non-tribal residents under the jurisdiction of a tribal authority for their water needs.
The 5 person make up consisting of 2 tribal, 2 governor appointees, and 1 person selected by the other 4 is a recipe for disaster, and its objectivity and fairness would be completely at the mercy of the people involved with the process. Not only is the make up of the board a misrepresentation of the demographics of tribal and non-tribal populations on the reservation, governor appointees could be dependent upon the political winds. Bad news no matter how you look at it.
At the June 27th compact meeting, the tribal lawyer responding to a question about removing this board from the agreement stated the whole compact would fall apart without it. This must therefore be a non-negotiable part of the agreement by the tribe. There is no way this board can make sense if the state has any interest at all in protecting the interests for the majority of residents on the reservation.
IF IT’S NOT COERCION, THEN WHAT IS IT?
Western Montanans have much to lose in this situation. They instinctually understand the implications of this “water deal”, and when they speak out about it, the state falls back on its standard talking point that the alternative is expensive litigation. When you couple that with the fact that people also understand that in most cases the courts have become hotbeds for political activism, you can understand why the general attitude is there is nothing that can be done to prevent this.
Coercion is defined as forcing of somebody to do something: the use of force or threats to make somebody do something against his or her will. Wouldn’t a reasonable person agree that the threat of litigation or going through our broken judicial system amounts to coercion?
It’s understood that the commission’s put a lot of work into this project, and their efforts are appreciated. There is an overwhelming concern however, that their assumption that the Hellgate treaty was in no way diminished by historical events that followed it, invalidates and taints the premise of the negotiations.
The state never offered a proposal in this negotiation. Instead they chose to take a subservient role by accepting the tribe’s proposal and only working with it. The tribe began with radical requests and continues to add from there.
The state incorrectly assumes non-tribal citizens impacted by these negotiations are lesser citizens that have done something wrong, and must pay reparations in the form of further diminishment of their rights, a significant loss of wealth, and restrictions n their ability to make a living from their own land.
In 2012 America, this is not only unacceptable, it’s archaic. If the state continues this course, the compact can be nothing but a flawed document that cannot possibly serve the needs of the parties involved.
In these negotiations, the federal government has continued its 100 year precedent of capitulating their duties under the Constitution. Tribal or non-tribal, it would behoove us all to remember that the government has perpetrated negligence and fraud against both sides of this equation, and then not having the backbone to rectify the problem they are responsible for creating.
Even though it might require another extension, we believe the best approach to take is to throw out the existing compact, unitary management ordinance and stipulation agreement, and find a reasonable starting point that recognizes the rights needs of all human beings that are part of this equation. To do otherwise, is nothing but a disaster waiting to happen.