© 2013 Concerned Citizens of Western Montana
In a previous article, we reported our concern that the Flathead Irrigation Project Water Use Agreement (FIP WUA) and the discussion focus on the amount of water to be applied to irrigated lands (1.4 or 2.0 af/ac) was actually a distraction from the fact that the FIP WUA requires irrigators to give up or surrender (relinquish) their water rights to the CSKT.
Yes, you read that right. The FIP WUA requires irrigators to give up or surrender (relinquish) their water rights to the CSKT. Article IX on page 15 of the FIP Water Use Agreement states, in part,
Within thirty days of the issuance of a final decree from the Montana Water Court recognizing the CSKT’s water right found in Article III of the Compact,…the FJBC and the United States will file with the Montana Water Court a “Request to Withdraw Statement of Claim” for every water right statement the FJBC and the United States have of record for the FIIP with the Montana Water Court…
This portion of the FIP WUA references Article III of the Compact where the CSKT claim the right to use all of the FIP irrigation water, some 1.5 million acre feet:
a. Flathead Irrigation Project. The Tribes have the right to water that is supplied to the Flathead Indian Irrigation Project to be used for such purposes in such volumes and flow rates and from such sources of supply as identified in abstracts of water right…The exercise of this portion of the Tribal Water Right is subject to the FIIP Water Use Agreement.
b. The priority date of the Tribal Water Right used by the FIIP is July 16, 1855.
Instead of admitting these plainly stated facts written into a legal document, the Compact Commission, CSKT, and compact proponents on the FJBC tried to persuade people that this agreement actually protected irrigators.
This tactic of diverting attention away from the truth is known as a ‘red herring’. Unfortunately this tactic has created great division, stress, and hardship within the irrigation community which is on-going. If the so-called ‘independent’ irrigation districts want to approve their own water use agreement along the lines of what is proposed in the Compact, they are relinquishing –giving up– their constituents’ water rights to the Tribes. And they perpetuate the red herring.
The Other Red Herring
The other distraction that is operating is happening in the off-reservation claim for water in major rivers across western Montana. In the first instance, the Compact Commission is supposed to focus on federal reserved water rights which only exist on-reservation. Moreover, the Treaty of Hellgate allowed the Tribes the right to ‘take fish’ and the privilege of hunting in common with the citizens of the territory. This right to take fish does not automatically translate into a water right. For months on end, Commission attorney Jay Weiner was making comments in the state-wide and regional press that the Treaty gave the Tribes extensive water rights. Such deception!
But the ‘red herring’ part of this is that it creates great anxiety off-reservation and spurs efforts to ‘cut deals’ with the CSKT to remove this tributary or that river from the reach of enforceable instream flows. Just the fact that a ‘deal could be cut’ with the CSKT may indicate the extent to which this issue is just a distraction. Because, the Tribes never really had a water right off the reservation in the first place—yes a right to take fish—but not water. So what does it matter if they give up this tributary or that river?
This is a classic diversion. But, from what?
The Real Prize in the CSKT Compact
The primary “prize” of the proposed CSKT Compact is the Unitary Management Ordinance (UMO). This is the law of administration of water covering the entire reservation. The UMO gives the Tribes nearly 100% control over a politically-appointed Board to administer all water rights on the reservation, including state-based water rights. The State is basically barred from managing the water rights of its own citizens.
In Article I of the Compact, the CSKT claim full ownership of all water within the exterior boundaries of the reservation, including the water belonging to the Flathead irrigators. They accomplish this task through the definition of the reservation, which asserts that all the land within the exterior boundaries of the reservation, including non-Indian private land, belongs to the CSKT and still is in ‘reservation status’.
They don’t need the FIP WUA because they will own the water anyway and the Compact gives them the irrigators’ water rights. So they will be under no obligation to give the irrigators anything.
They don’t need the off-reservation water rights because they (a) don’t have them anyway, and (b) have other forums within which to claim Treaty rights.
The Tribes want full management and administration authority over all water on the reservation. Would it surprise you at all to find that the CSKT have held this position firmly since 2002? (See Missoulian Article: “liquid assets”). The state was firmly against this until 2008, but capitualated and included it in this compact after that date. (Reference John Tubbs memo 2008)
The UMO is Unlawful
The UMO remains an unlawful and unconstitutional document because it delegates Montana’s constitutional duty and responsibility for management of state waters and administration of state based water rights to the CSKT and places 23,000 non-Indians under the jurisdiction of an Indian Tribe. Finally, the CSKT are required to submit this Tribal ordinance to the Secretary of Interior for approval. Given that the UMO exerts jurisdiction over water users where it has none, no approval would be received from the Secretary of Interior. If the Secretary had approved this UMO the Compact proponents would have been crowing from the rooftops.
Dropping the Red Herrings Gives us the Compact (UMO)
There are rumors of the Tribes making deals with individuals and others working behind the scenes to:
- Give up the off-reservation water rights
- Drop any FIP WUA from the Compact
Of course, the CSKT will once again tell us that these are two more big concessions –even though they did not have those rights in the first place—in order to have the legislature pass the ‘bare compact’. But the ‘bare Compact’ of course means the Unitary Management Ordinance.
If the CSKT are granted the authority to manage all the water on a reservation with 23,000 non-Indians, will the other Montana Tribes, with even less non-Indian population, begin to exert their management authority?
Keep an eye out on any movement of the proposed Compact in this direction. Compact proponents are desperate to strong-arm this Compact through the legislature and will continue to offer out false signs of ‘progress’.
Like dropping the red herrings.