©2013 C. Vandemoer

This article focuses on the Flathead Irrigation Project[1] and why the CSKT do not own the project, its canals and facilities, or the waters associated with it.  It is important to understand this history, and the nature of the Flathead Irrigation Project, in order to understand why the CSKT is trying to use the proposed Compact and the irrigator Water Use Agreement (WUA) as a mechanism to get what they are not legally entitled to otherwise.

Following years of selective lawsuits aimed at the irrigation community and the FJBC attempting to take full control of the Flathead Irrigation Project, the CSKT submitted a request to the Department of the Interior (Interior) in 2007 to transfer the operation and maintenance of the project to the Tribes under the Indian Self Determination and Education Assistance Act (ISDEAA), otherwise known as Public Law 93-638 (25 U.S.C. § 450f (a) (1) (E)).  These ‘self determination contracts’, or “638 contracts”, allow the Secretary of the Interior to enter into self-determination contracts with Tribes for programs “for the benefit of Indians because of their status as Indians.”

In the Tribes’ 2007 letter to the Department of the Interior, the Tribes contended that ‘because the Flathead Irrigation Project was authorized by Congress “for the benefit of said Indians”, it falls into the category of “contractible programs ‘for the benefit of said Indians’ because of their status as Indians.” However, the Department of the Interior concluded that the Flathead Irrigation Project was not constructed solely for the Indians, and was therefore not contractible under the ISDEAA after conducting an exhaustive review of the 1904 and 1908 Acts that opened the reservation to non-Indian settlement.[2] Excerpts from Interior’s analysis follow.

Analysis of the 1904 and 1908 Acts

In 1904, Congress passed a statue requiring the survey and allotment of lands within the Flathead Reservation (33 Stat.302 et seq.), directing allotments to be made to all persons with tribal rights and requiring the remaining lands on the Reservation to be opened to settlement and entry. Congress further directed that one-half of the proceeds received from the sale of surplus lands within the Reservation were to be expended by the Secretary to aid the Indians of the Reservation with agricultural endeavors, including the construction of irrigation ditches.  The Department of the Interior concluded that this language falls short of authorizing the construction of a full-fledged irrigation system “for the benefit of said Indians”, because authorization of an irrigation system did not come until 1908, when Congress

…explicitly directed the Secretary to reallocate the proceeds from the sale of ‘surplus’ lands toward the construction of an irrigation system to benefit all irrigable lands within the Reservation, including those lands that passed out of Indian ownership…[3]

The 2007 CSKT letter requesting to take over the Flathead Irrigation project under a self-determination contract focused solely on the language of the 1904 Act, ignoring Congress’ clear intent to extend irrigation opportunities to all lands within the Reservation.   Congress opened the Reservation for entry and settlement in 1904, and clarified in 1908 that these “surplus lands” were also entitled to benefit from an irrigation system.  Further, Congress instructed the buyers of Reservation surplus lands to pay a proportionate cost for the construction of such an irrigation system, and then directed the operation and management of the system to be transferred to the owners of the irrigated lands after the construction costs were repaid.

Importantly, the 1908 Act amended the 1904 act to specifically extend an irrigation system to all irrigable lands on the Reservation irrespective of ownership, and relevant to this present analysis, explicitly directed that:

“When the payments required by this Act have been made for the major part of the unallotted lands irrigable under any system and subject to charges for construction thereof, the management and operation of such irrigation works shall pass to the owners of the lands to be irrigated thereby.” 35 Stat. at 450 (emphasis added)

The Department of the Interior’s “longstanding view is that the italicized phrase must be read in light of the current ownership of Reservation lands.”

Because the CSKT land holdings within the Flathead Irrigation Project amount to less than 10% of the lands irrigated by the facilities, and because the irrigation system was not constructed solely for them but for all irrigated lands, the CSKT were unsuccessful in their attempt to take over the Flathead Irrigation Project under an Indian Self Determination contract, or “638 contract”.[4]

Enter the Cooperative Management Entity (CME)

Discussions began on the transfer of the management and operation of the Flathead Irrigation project sometime in 2002, with negotiations occurring between Interior, the Flathead Joint Board of Control (FJBC) and the CSKT.  Note that as of 2007, the Tribes were still trying to take over the project under a 638 contract despite these negotiations.  Because the 1908 Act required the project’s operation and maintenance to be turned over to the owners of the land so irrigated, the Tribes and the FJBC reached agreement in 2010 to transfer the project’s operation and management to a Cooperative Management Entity, otherwise known as the “CME”.

The membership of the CME, however, does not reflect the intent of the 1908 Act nor the determination by the Department of the Interior that the project was constructed to benefit all irrigable lands and that the transfer of operation and management of the Flathead Project should be turned over to the current owners of land within the project.  Non-Tribal members own 90% of the land irrigated under the Flathead Irrigation Project, yet the membership of the CME consists of 4 Tribal members and 4 non-Tribal members.  The Tribal members on the CME are not irrigators.  Thus the 50-50 membership, if it was based on the law, would reflect that the Tribes own 50% of the irrigated land and that non-Indians own the other 50%.  Clearly this is not the case.

Former members of the Flathead Joint Board of Control negotiated this agreement and in the process, gutted their constituents’ legitimate claim to majority membership on the Cooperative Management Entity.  Clearly the FJBC should be the controlling authority for the management and operation of the Flathead Irrigation Project and the CME membership should reflect the project’s land ownership, i.e., 90% non-Tribal and 10% Tribal.  Instead, the 50-50 membership of the CME ensures that nothing gets done on the management and operation of the project unless the CSKT says so.

Having failed in their attempt to take over the Flathead Irrigation Project under a 638 Contract, the Tribes got the next best thing: control over decisions of the CME based on the Tribes’ non-proportional representation.

The Proposed CSKT Compact

With the direct help of the Compact Commission, the proposed CSKT Compact continues to ignore history and law in several key areas that affect the Flathead Irrigation Project:

  • Rewriting the definition of reservation land to include all private fee land
  • Claiming ownership of all the surface water on the reservation, including that water belonging to non-Indian irrigators
  • Requiring non-Tribal irrigators to relinquish their water rights to the CSKT in the Water Use Agreement
  • Claiming full management authority over water through the Unitary Management Ordinance

They all are hoping you don’t know or understand history, and they have enlisted a handful of local irrigators and politicos to continue to mask and misrepresent the unconstitutional taking of property rights that the Water Use Agreement and this Compact represents.

In particular, the Water Use Agreement (WUA) would assure that the Tribes would control irrigation on the Flathead Reservation, regardless of land ownership.  Under the Compact, there would be no representation of non-Indian interests as the CME would be subordinate to the politically-appointed Water Management Board which at best would be controlled by the Tribe through at least three of the five board members.  Local Representative Dan Saloman remains completely clueless about or is deliberately misrepresenting these facts, although he is finally admitting that irrigator water rights will be transferred to the ownership of the Tribes.  See his comments here.

The Water Use Agreement, 638 Contracts, and the Unitary Management Ordinance

The ownership of all water by the CSKT and the Water Use Agreement is a major part of their effort to manage all the water on the reservation pursuant to the Unitary Management Ordinance, a major portion of the Compact.  If they can get ownership of the irrigators’ water rights, then it will be easier to push once again to take over the Flathead Irrigation Project under a 638 contract—something that has been consistently rejected by the federal trustee.

What a deal!  Non-Indians pay for the development of the Flathead Irrigation Project, invest millions of dollars, and the CSKT get the water and management of the project through the Compact, driving hard working families out of the valley, ruining property values, and destroying the agricultural economy.  And what is more frightening, the Water Use Agreement contemplates the eventual decommissioning of the Flathead Irrigation Project.

Make no mistake: the takeover of the Flathead Irrigation Project and the ‘contracting’ of the State’s role in managing water on the reservation through the Unitary Management Ordinance–involving thousands of non-Indians–will lead to the CSKT and other Tribes in Montana contracting other state functions.  It will be the state equivalent of the federal 638 program.  Indeed, this could ignite a trend across the west where Tribes simply contract state functions which are paid for by non-Indian taxpayers. [5]

[1] The legal name of the irrigation project is the “Flathead Irrigation Project”.  The CSKT referred to the Flathead Irrigation Project in its filings under the Indian Claims Commission and in this letter to the Department of the Interior.  The name “Flathead Indian Irrigation Project” is the Tribes’ name for the project, but not its legal name, because the irrigation project was not built solely for Indians.

[3] Ibid, page 3, Para 1

[4] The Tribal and individual Indians did not have to pay construction charges for the project.

[5] Willman, Elaine Devary, 2005, Going to Pieces:  The Dismantling of the United States of America, Toppenish, WA