As mentioned in THE WAY I SEE IT (07/28/12), my self education process concerning the CSKT reserved water rights compact has turned all of my starting assumptions completely on their head.  Left –  Right, Up – Down, and Inside – Out.

One of the biggest obstacles to the compact for me is the UNITARY MANAGEMENT ORDINANCE.  The very idea of a five person board to administer the water rights and needs for all people residing within the exterior boundaries of the Flathead Indian Reservation makes the hair on the back of my neck stand on end.

FIRST SOME BACKGROUND

The Unitary Management Ordinance was introduced into these “negotiations” by the tribes in 2008.  (I assume this because that is when the document showed up on the DNRC website).

This ordinance is a completely new and unprecedented proposal as to how water rights will be administered on the reservation.  It’s never been tried before.  ANYWHERE.  Typically a dual system of water management exists, where the state administers the rights of state properties and non-tribal citizens, the federal government manages any federal water rights, and the tribe manages the tribal rights.

While the commission is working hard to model much of the ordinance after Montana Water Law in order to “protect” those impacted, the most unpalatable piece is that it removes non-tribal residents from state jurisdiction with regard to their water rights, especially for new uses of water.  This is because the ordinance creates a whole new bureaucracy to administer those rights, removing all reservation residents from the protection of state water law and jurisdiction.  It also removes all certainty and predictability with regard to our water rights.

The management board will consist of five members, two tribal appointments, two governor appointments, and a fifth person to be chosen by the other four.  This is similar to the Cooperative Management Entity (CME) board for the Flathead Irrigation Project, only that board has 9 members.  The problem with this type of board is that it’s intentionally designed to give the tribe control of the board.  No ifs, ands or buts.

Without going into a lot of detail, suffice it to say that the tribes have worked very hard to challenge the authority of the state to administer water rights within reservation boundaries, and over time have made inroads through the courts toward increasing their jurisdiction over non-tribal residents within the exterior boundaries of their reservations. If this agreement becomes part of the compact, it will not only serve to increase tribal jurisdiction over non-tribal citizens, it will ensure that the Montana Constitution and laws will not be applied equally to all citizens of the state of Montana.  In other words, whatever the tribe gains in terms of sovereignty, the state and its citizens will lose.

THE GRAND EXPERIMENT

At the RWRCC meeting in Helena on 08/02/12, the chairman made the following comment (paraphrased):

It would be helpful to remind the tribes of the “Grand Bargain” that has been made, and the fact that the state made an “extraordinary concession” to them in exchange for the tribes agreement to protect the existing verified uses of water within reservation boundaries.

What was this extraordinary concession?

They agreed to remove non-tribal rights from under state jurisdiction. (via the Unitary Management Ordinance) 

Let me say that again.

They agreed to remove non-tribal rights from under state jurisdiction. (via the Unitary Management Ordinance)

Really?  An unelected commission, negotiating on behalf of our governor, Mr. Schweitzer, is experimenting with the lives of the non-tribal citizens residing within the exterior boundaries of the reservation?

AUDIO HERE:

I wonder what Mr. Schweitzer, or the Montana Human Rights Network would think about that?  Oh yes, I think I know.  They most likely believe that our rights under the constitution are diminished by virtue of the fact that we live within reservation boundaries.  I always seem to miss seeing the sign that notifies me of pesky little detail when I drive across the external boundary line of the reservation.

In the same meeting, we were told about the brilliance of this totally new system of water rights administration, and all that was being done to protect those whose rights would be impacted by this document.  Unfortunately this message was totally lost under the weight of the fact that the people sitting in that room have somehow rationalized their decision to give away our right to the protections of the constitution.

They mentioned of course, this would not go through without legislative approval, therefore if it is passed, the monkey will be thrown onto our representatives backs instead.

They even had the nerve to explain that in hindsight, they think this “wonderful” new system of water rights management should have been used in all of the tribal compacts they’ve completed.  We wonder if they understand that this is much like mixing apples and oranges.  After all, the other six compacts were for “closed” reservations.  The demographics of the Flathead Reservation are much different (15% tribal 85% non-tribal).

WHY DOES IT MATTER?

After attending several meetings and hearing the compact commission’s explanations as to how and why this ordinance will be a good thing, I am not convinced.  For as much as I’m unconvinced, it is clear that the commission has found a way to “rationalize” their decision to gamble our rights away.  I believe it is their desire to be seen as water rights leaders throughout the country, on the leading edge of water rights negotiations.  In other words, they consider their efforts to be a shining beacon for the rest of the country to admire and aspire to.

They have one thing right.  This is unprecedented and on the leading edge, but not for the reasons they might think. If our rights are given away via the Unitary Management Ordinance, it’s likely that tribes all around the country, especially in western states, will be clamoring to reopen their compacts to achieve similar jurisdiction over non-tribal people.

The very thought of this management board tears at very core of all I believe in, and have ever known about my country and my citizenship.

I can only wonder how these people, who so willingly have chosen to look the other way with regard to other people’s rights, can sleep at night.

Would they be so willing to hand over the same rights of their own children and grandchildren?

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