© 2013 Concerned Citizens of Western Montana

What is the adage that those who do not learn from history are doomed to repeat it?

For many of us, this past two years represents a very steep learning curve. Not only have we had to learn about Federal Reserved Water Rights, the Treaty of Hellgate and the history of the Flathead Reservation, we’ve also had to labor over 1,400 pages of compact documents to get a clear picture of what’s really going on with the Flathead Water Compact.

Time and time again, we’ve been asked “wasn’t the CSKT compensated for their ceded lands?” “Weren’t they paid for the lands within reservation boundaries that subsequently were opened to homesteading as allowed by Article VI of the Hellgate Treaty?”

Even the Flathead Reservation Timeline posted on the state of Montana website makes note of the following events:

1965 – The Indian Claims Commission determined that Confederated Salish and Kootenai Tribes had not beecompensated for the lands ceded in the 1855 Treaty of Hell Gate. “…the Tribes had surrendered 12, 005,000 acres to the government which were worth $5,300,000. The total payment to the tribes, however, had only been $593,377.82.” After fees were taken out, the tribes received $4,016,293.29 in 1967. The compensation was determined in 1855 land values. No interest paid on the 112 years the Tribes had been deprived of the money.

1971 – The U.S. Court of Claims found that the Flathead Allotment Act was a breach of the 1855 Treaty of Hell Gate. Compensation to the Tribes was determined in 1912 land values, totaling $7,410,000, of which only $1,783,549 had been paid. The balance of $5,626,451 was paid a few years later.

Unfortunately this only tells part of the story, and while we do not want to bore you with too much detail, we’d like to provide you with some information so you can do your own homework on this issue.

After all, this compact is about settling the Federal Reserved Water Rights for the Flathead Reservation, and the compact commission has stated that millions if not billions of federal dollars could be part of this “settlement.”  The present compact bill, killed by the Montana legislature in 2013, proposed that $55 million of Montana’s money also be used to “settle” this issue in addition to giving up water rights for most if not all of the water in western Montana to the federal government in trust for the tribes.

THE INDIAN CLAIMS COMMISSION

In 1946, President Harry S. Truman signed into law the Indian Claims Commission Act, creating a special judicial body allowing Indian tribes to file claims of all kinds against the United States government.  Any claim against the United States, extending back to the American Revolution, could be brought before the Commission.  To be valid, however, the claims had to be brought within five years of the passage of the Act.  Any claims not brought before August 13th, 1951 would be forever barred by the statute.  Despite the deadline, claims that arose from events prior to 1946 continue to be brought by Indian tribes.  The important goal of the Indian Claims Commission has been largely forgotten or ignored, as courts persist in allowing tribal suits.

In their 1951 petition, the CSKT submitted eight causes of action against the United States to the Claims Commission:

  1. Since execution of 1855 treaty, defendant (United States) has not made or furnished petitioner (CSKT) an accounting of its property or funds.  Petitioner alleges that large amounts of its property and funds have been wrongfully misappropriated by defendant.
  2. When the reservation was surveyed and boundaries fixed, the northern boundary was not fixed at half way between the northern and southern extremities of the Flathead Lake.  As a result 180 square miles of land were excluded.  This resulted in a taking of petitioner’s property and petitioner is entitled to just compensation.
  3. When the reservation was surveyed and boundaries fixed, the southwestern boundary was not fixed thereby taking thousands of acres.  This resulted in another taking without compensation.
  4. The opening of the reservation to settlement without the consent of petitioner has resulted in great damage that the petitioner is entitled to a judgment for such damage and just compensation.
  5. The United States wrongfully and unlawfully appropriated, used and expended petitioner’s funds to pay for the survey and appraisal of reservation lands for allotment.
  6. The water flowing through petitioner’s land is of great value for irrigation purposes.  Without the consent of the petitioner, the defendant initiated and carried through the construction and operation of an irrigation project.  The defendant used and is using large quantities of valuable water belonging to the tribes.  No compensation has ever been paid to the tribes for the water.
  7. Several thousand acres of valuable land were used for power site purposes along the Flathead River within the reservation.  Total rentals from the low cost block of power have resulted in profit to the Flathead Irrigation Project and deprived the defendant of the full and fair value of its power.
  8. Defendant wrongfully and unlawfully appropriated the waters of Hell Roaring Creek for a power plant and a source of water supply for the city of Polson.  By such action defendant has appropriated property of petitioner.  Petitioner is entitled to just compensation.

Whether or not we agree with this list of grievances, by all appearances, it seems the CSKT were compensated for them.

So why exactly does this compact lay claim to all the land and water on the reservation?

Why does this compact lay claim to significant amounts of water outside “reservation” boundaries, when Article I of the Hellgate Treaty clearly states “The said confederated tribes of Indians hereby cede, relinquish and convey to the United States all their right, title and interest in and to the country occupied by them”?

Why is the compact commission and the federal government talking about giving significant amounts of additional money to “settle” these same grievances with the tribe?

We know by these documents that the tribe understands the premise of an unconstitutional taking without compensation.  Why is it okay to allow another taking, probably the largest land and water grab ever in the United States, under the guise of a federal reserved water rights compact?

INDIAN CLAIMS COMMISSION DOCUMENTS FOR THE CSKT

Here are documents specific to the claims filed by the CSKT.  There may be more, however here are those that are easily found.  If you want to cut to the chase, read the 1951 petition, and the 1971 Court of Claims Decision:

1951 TRIBE PETITION
AUGUST 3, 1959 FINDINGS OF FACT
AUGUST 3, 1959 OPINION OF THE COMMISSION
AUGUST 3, 1959 INTERLOCHUTORY ORDER
SEPTEMBER 29, 1965 ADDITIONAL FINDINGS OF FACT
SEPTEMBER 29, 1965 OPINION OF THE COMMISSION
SEPTEMBER 29, 1965 SECOND INTERLOCHUTORY ORDER
AUGUST 1, 1966 FINDINGS OF FACT IN COMPROMISE SETTLEMENT
MARCH 10, 1967 FINDING OF FACTS ON AWARD OF ATTORNEY’S FEE
MARCH 10, 1967 ORDER ALLOWING ATTORNEYS FEES
FEBRUARY 24, 1971 ORDER DISMISSING EIGHTH CAUSE OF ACTION
APRIL 23, 1971 US COURT OF CLAIMS: CSKT VS US 437F2d 458

ADDITIONAL INFORMATION

 Here is some additional information about the CSKT and the Indian Claims Commission excerpted from the following book:  A Guide to the Indian Tribes of the Pacific Northwest by Robert H Ruby, John A Brown, Cary Collins

“Government and Claims:  A compromise settlement between the petitioning Confederated Tribes and the defending United States was reached for an entry of a final judgment by the Indian Claims Commission in the amount of $4,431,622.18 on the condition that the claim (Docket 61), which had been appealed to the Court of Claims (Docket 1-66), be dismissed and remanded to the commission.  This was done.  For 12,005.000 acres of ceded lands under the 1855 treaty, a final judgment was entered on August 5, 1966, based on the value of the land as of March 8, 1859.  This amounted to $5.3 million, less the consideration that had already been paid the tribes ($593,377.82) and an offset of $275,000.  This the final award totaled $4,431,622,18. 

On July 24, 1951, the tribes filed a claim with the Indian Claims Commission (Docket 156) for an accounting of their trust fund, erroneous boundary surveys, the opening of the Flathead Reservation, and the taking of lands and waters.  The docket was dismissed because the claims were similar to those filed with the court of claims (No.50233) under the act of July 30, 1946, which had authorized the suit by the tribes a year before the Indian Claims Commission was established.  The claims for compensation for waters and lands taken were for the waters of Hell Roaring Creek, which had been appropriated for a power plant for the city of Polson, Montana; for reservation lands seized without adequate compensation for a power site under and act of march 3, 1909; and for waters from Flathead Lake used for constructing and operating the Flathead Irrigation project under the acts of April 3, 1908, without the compensation agreed upon.  The court dismissed those claims, but on December 18, 1967, it awarded the tribes $190,399.97 as reimbursement for the expenses of surveys and classification of tribal lands sold and otherwise disposed of under the act of April 23, 1904 (33 Stat. 302) in breach of the Hell Gate treaty. 

On March 8, 1971, a judgment was rendered for $6 million that was a compromise settlement for the general accounting of tribal monies and property.  On April 23, 1971, a judgment of $7,410,000 was issued.  It included the 1912 value of 485,171.31 acres of reservation land minus the $1,343,331.22 already paid, plus interest of $16,294,880.29, for a total award of $22,361,549.07.  On November 11, 1971, a judgment of $550,000 was approved for erroneous surveys of the northern and southwestern reservation boundaries.”

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