© 2013 Concerned Citizens of Western Montana
This post is the first installment of a three part series exposing the issues that caused the proposed CSKT Compact to fail. We recently released our Critical Review of the CSKT Compact document to remind western Montanans about why this compact did not garner public or legislative support. That document, along with this short series, establishes a springboard for our proposed comparative compact, intended to show what a good compact should have looked like had the state of Montana been well represented in these “negotiations”.
After many months of reviewing compact documents and attending the public meetings, it is our contention that after conceding everything to the CSKT in “negotiations”, leadership of the Compact Commission spent the past few years working very hard on trying to make the science, the narrative, the legal cases, and even the definitions in the compact documents “fit”, or dovetail nicely into a neat little package that would serve to justify or rationalize the state’s capitulation of its waters to the federal government and the CSKT.
FAIR AND EQUITABLE BY WHOSE STANDARD?
Governor Bullock calls the existing proposed CSKT Compact a FAIR agreement. So does the Compact Commission, the Tribes and the Federal Government.
The Montana statute that created the Reserved Water Rights Compact Commission says:
…it is further intended that the state of Montana proceed under the provisions of this part in an effort to conclude compacts the EQUITABLE division and apportionment of waters between the state and its people and the several Indian tribes claiming reserved water rights within the state.”
The proposed compact isn’t even close to what an average person would call FAIR or EQUITABLE, so we wonder, have the definitions of these words changed recently?
FAIR -free from bias, dishonesty, or injustice. Legitimately sought, pursued, done, given
EQUITABLE -having or exhibiting equity : dealing fairly and equally with all concerned. Existing or valid in equity as distinguished from law
Nope, no changes in the definitions of the words FAIR and EQUITABLE that we can see. Yet state leadership, those entrusted to do the right thing by the Constitution, the laws and the people of Montana, tell us this is a fair and equitable agreement.
If it wasn’t these definitions that have changed, were there others that did?
STARTING OFF ON THE WRONG FOOT
The recitals and definitions in the beginning of the compact set the stage for the 1,200 or so pages that follow in the documents and appendices. They are artfully and carefully written by attorneys, and are used to rewrite history, and to semantically attempt to justify the compact’s massive overreach by the federal government for control and ownership of the waters of western Montana.
The very first WHEREAS of the compact gives a clue as to where the compact will lead.
” WHEREAS, pursuant to the Hellgate Treaty of 1855, 12 Stat. 975, the Confederated Salish and Kootenai Tribes reserved the Flathead Indian Reservation; “
This recital uses the Tribe’s view of their own history, rather than actual history. It was the federal government that reserved the land upon which the reservation exists, and that is why the state is allowed to settle or adjudicate the Flathead Reservation’s federal reserved water right. If this weren’t the case, the state could not be at the table, and this would not be a McCarren Amendment proceeding.
FROM BAD TO WORSE
From the very beginning, the CSKT have been honest concerning their demands related to this compact. They have insisted all along that they own all the water flowing through, under and over the Flathead Reservation. Even in May of 2012, a tribal elder seated at the negotiating table stated: “I personally stand here and claim all the water in my aboriginal territory as my water. I will not nod my head until everything goes my way.”
Persistence pays. Historically the state called these demands non-starters, causing negotiations to end. Unfortunately for the people of western Montana, sometime after 2008, the state gave up trying to protect the water rights of its citizens, and wrote a compact that gave in these CSKT demands that were once considered to be unreasonable.
The Compact defines the reservation without reference to or consideration of history and federal acts that resulted in the diminishment of reservation lands and valid non-Indian ownership of fee patent lands (private property) within the reservation boundary. The definition of the Flathead Indian Reservation used in the proposed CSKT Compact is:
“All land within the exterior boundaries of the Indian Reservation established under the July 16, 1855 Treaty of Hellgate (12 Stat. 975), notwithstanding the issuance of any patent, and including rights-of-way running through the Reservation.”
By assuming the year is 1855, not 2013, this definition implies that all the land within the Flathead Indian Reservation is still in ‘reservation status’ and held in trust by the United States for the benefit of the CSKT, ignoring history, and the existence of private property on the reservation. It is then used in the Compact to extend “reservation status” to mean ownership of all surface and ground waters of as well as the lands of the reservation, and to extend Tribal jurisdiction over non-Tribal private property.
THE FACADE OF “PROTECTING EXISTING USES”
Commission talking points often center around the statement that the CSKT has made major concessions in the compact one of which is to “protect existing uses of water”. This talking point, and the definitions of existing uses within the compact are designed to pacify the casual bystander and those concerned only about their well and existing water needs. Pay no attention to the big picture, go back to sleep, your well is protected.
This same talking point is also intended to deflect attention away from asking the question what will this compact mean to future uses of water, i.e. future growth and development?
So will the existing proposed compact negatively impact future growth and development in western Montana? But perhaps the Department of Natural Resources and Conservation (DNRC) knows more than what they’re willing to state publicly.
THE FOLLOWING WORDS COME DIRECTLY FROM A DNRC DISCLAIMER INCLUDED ON A RECENT CHANGE OF WATER RIGHT FOR AN APPROPRIATION OF WATER WELL OUTSIDE THE BOUNDARIES OF THE FLATHEAD RESERVATION:
” This right is subject to all prior Indian reserved water rights of the Confederated Salish and Kootenai Tribes in the source of supply. It is the Tribe’s position that the exercise of junior water rights either within or outside of the exterior boundaries of the Flathead Indian Reservation may affect the reserved water rights of the Tribe within the exterior boundaries of the Reservation. It is the Tribe’s position that the economic investments made in reliance upon this right do not create in the appropriator any equity or vested right against the Tribes. The appropriator is hereby notified that any financial outlay or work invested in a project pursuant to this right is at appropriator’s risk. The issuance of this right does not reduce the appropriator’s liability for damage caused by the exercise of the right. It does not make the Department liable for damage caused by the exercise of the right nor is the Department liable for any loss to the appropriator caused by the exercise of senior reserved water rights.”
(Note: this disclaimer can be found on other water rights within the DNRC Water Rights database, and perhaps explains why the commission has refused to do environmental or economic impact studies)
Remember, this disclaimer is on a water right located quite a distance from reservation boundaries. Do you still think the Flathead Compact is just a reservation issue and that existing uses of water will be protected if this compact is ratified? Think again.
ASSUMING A TREATY RIGHT TO FISH IS A FEDERALLY RESERVED WATER RIGHT
The last example we’d like to give is the leap that the Commission takes in assuming that a treaty right to take fish in common with the citizens of the territory automatically translates into a water right.
Article III of the Treaty of Hellgate secured to the CSKT the ‘right to take fish, hunt, and gather at usual and accustomed places in their aboriginal territory in common with the citizens of the territory’. This language is interpreted in the compact to mean a water right, and further, that this off-reservation water is equivalent to a federal reserved water right:
“WHEREAS, the Confederated Salish & Kootenai Tribes claim aboriginal water rights and pursuant to said Treaty, reserved water rights to fulfill the purposes of the Treaty and the Reservation; “
A federal reserved water right only applies to the land that was reserved, not to off-reservation lands. Unfortunately, the commission would like you to think otherwise, and once again, uses words in an attempt to justify their relinquishment of off reservation waters to the tribe. Remember, it was the state that offered these waters to the CSKT.
While we’re on the topic of manipulation definitions, let’s ask another question, does the language “in common with the citizens of the territory” give everyone else in western Montana a water right too?
We hope these few examples help you understand the way that a few words can be used to shift the paradigm and the debate related to this issue, and are carefully used by lawyers to craft a means to rationalize and justify the theft that is taking place in the proposed CSKT water compact that our Governor calls “fair”.
Perhaps Governor Bullock and the leadership of the compact commission were issued a different dictionary than the rest of us use. Or perhaps they are writing their own.