©2013 Concerned Citizens of Western Montana*

We have written about the several diversionary tactics that have been used as part of the strategy to present the proposed CSKT water Compact as a harmless, benign Compact that would not negatively impact anyone.  The two most significant diversionary tactics used in the Compact include:

  • The off-reservation claims for water rights–this is a diversionary tactic as these water rights are not ‘federal reserved water rights’ and may not exist at all to support a treaty right to “take fish”.  (Note: For confirmation of this red herring, please review this excellent paper on why an instream flow right does not exist to support a treaty right to fish.)
  • The Irrigation water use agreement (WUA)–the diversionary focus of the WUA has been to get irrigators fighting with each other on the amount of water that should be applied to each irrigated acre in the Flathead Project instead of the reality that irrigators are required to relinquish their water rights to the CSKT.

We have referred to these diversionary tactics as “red herrings”, defined below:

The idiomred herring” is used to refer to something that misleads or distracts from the relevant or important issue.  It may be either a logical fallacy or a literary device that leads readers or characters towards a false conclusion. Red herrings often occur as a rhetorical maneuver in politics. The red herring is a seemingly plausible, though ultimately irrelevant, diversionary tactic.

We believe that both of these issues have been used to divert attention away from the real prize the CSKT seek:  the Unitary Management Ordinance (UMO).  This is a new rule for water management that essentially puts the Tribe in control of the water rights of all residents of the reservation, whether their rights are based in state, federal, or Tribal law.  Quoting the language of the Compact itself:

This Ordinance shall govern all water rights, whether derived from tribal, state or federal law, and shall control all aspects of water use, including all permitting of new uses, changes of existing uses, enforcement of water right calls and all aspects of enforcement within the exterior boundaries of the Flathead Indian Reservation. Any provision of Title 85, MCA [State water law] that is inconsistent with this Law of Administration is not applicable within the Reservation.

Compact proponents argue that the Governor gets to appoint two members to the five-member Unitary Management Board (UMB), and that means that the CSKT is not in control.  However, if you know anything about Indian Affairs, it is a known fact that the Governor’s appointees must be acceptable to (controllable by?) the Tribe.  This assures that at least 3, if not 4 out of  the 5 members of the UMB will be controlled by the CSKT Tribal Council. In practicality, this means that the water rights and development of all reservation residents will be controlled by a mere handful of reservation residents, serving their own agenda.  Twenty three thousand non-Indians who technically do not live “on the reservation”, but merely reside within its exterior boundaries, will no longer be protected under the laws and constitution of the state of Montana for their water needs.

This is similar to the control exercised by the Tribe of the Cooperative Management Entity which by law should have membership more in line with the actual ownership of lands irrigated by the Flathead Project.

The UMO, if adopted as part of the Compact, would control the future because it will control the use, development and transfer of use of surface and ground water on private lands within the reservation.  Keep in mind that no where in the United States has a Tribe been given this authority over non-Indians.

Remember also that the Tribe has stated that “if the UMO is not in the Compact, the mechanism for a Compact disappears”.  This is a huge statement of intent and we believe the main reason why other distractions had to be developed–the off-reservation water claim and the amount of water to be applied to irrigated lands in the WUA–to mask this major water control objective.

About those Red Herrings…

The thing about red herrings is that they can be dropped to give the illusion of ‘concessions’.  With audible relief guaranteed if the Tribes did indeed drop the off-reservation water rights claim and increase the amount of water to be applied to irrigation project lands, a Compact preserving the Unitary Management Ordinance would result.  Instantly the off-reservation opposition to the Compact could wane, and compact proponents would hope that irrigators will be relieved because they get more water and forget they will have to give up their water rights to the Tribes.

And the hope is that everyone forgets the dangers of the Unitary Management Ordinance.

We have previously written that we expected the Tribes to drop these red herrings, and rumors we hear from reliable sources indicate that this just might be happening right now.  Nothing in writing of course.  Dropping these red herrings would be used to gather momentum for a legislative special session, something compact proponents are salivating for.

Keep in mind that the Governor could call a special session on some other unrelated topic and rely upon his democrats and those (ir)”responsible republicans” 😉 to slip the CSKT Compact in somehow.  Concerned Citizens will keep you apprised of any developments in this direction.

Stay tuned.

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