©2013 Concerned Citizens of Western Montana

And ye shall know the truth, and the truth shall set you free  John 8:32

The recent Governor’s report released by the Compact Commission takes the reader further and further away from the real text of the Compact, and in this regard does a disservice to Montanan’s who may just be tuning into this issue.  Below is an article that appeared in the December 5, 2013 edition of the Western Ag Reporter quoting specific language from the Compact that everyone in Montana should be aware of, because it sets dangerous precedent.

The Coleman Angus October 31, 2013 article in the Western Ag Reporter entitled “Water…it’s all about water…” paints a picture of a couple of hundred irrigators who fear for their future if a proposed water settlement is not ratified on the Flathead Indian Reservation.  What Mr. Coleman did  not mention was the fact that these couple of hundred irrigators feel that it is fine to give up their neighbor’s  private water rights to the  Confederated Salish and Kootenai Tribes (CSKT) as part of  that Compact.

Yes, you read that right.  Article III, Section 3 of the Irrigator Water Use Agreement provides in part:

This Agreement and the Compact specify the terms under which the United States and the FJBC [Flathead Joint Board of Control] agree to withdraw and cease prosecution or defense of all claims to water, whether arising under Federal or State law, held in their names and filed in the Montana General Stream Adjudication, and whatever permits and other rights to the use of water recognized under State law that are held in their names for use on lands served by the FIIP [Flathead Irrigation Project]

 In exchange for giving up theirs and their neighbor’s water rights, irrigators are given the right to receive some of the now-Tribes’ water in a one-size-fits -all allocation of 1.4 acre feet per acre, an amount of water that more than 1,000 other irrigators feel will put them out of business.  If  the Montana Department of Natural Resources and Conservation states that each acre foot of water adds $2,000 of value to each irrigated acre, how much will land be worth if the volume of water normally used is cut by half or more?

To add insult to injury, Coleman doesn’t mention that the proposed CSKT Compact also removes the State of Montana from administering state-based water rights¹ on the reservation and replaces the state system with a new, experimental water administration rule that places a Tribal government in charge of the water rights of 23,000 non-Indians, including towns and cities, living on private land within the Flathead Reservation.  Article I of the Unitary Management Ordinance states:

 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.

Mr. Coleman would have you believe that giving up your water rights and  your rights to develop or use water for the crops you want to grow  provides ‘certainty’ for the future².  On the contrary, giving up your water rights to an unknown and untested Tribal government³ that is not accountable to the citizens of Montana only provides uncertainty and invites certain litigation.  No one gives up their property rights without a fight.

Unfortunately, Mr. Coleman also asserts, incorrectly, that the CSKT ‘federal reserved water rights’ are different than all other Tribes in Montana.  Mr. Coleman bases this incorrect assertion on the language in the Treaty of Hellgate which secured for the Tribe a “right to take fish…in common with the citizens of the Territory”.   However, the right to “take fish” does not convey a “water right”.  And importantly, federal reserved water rights do not exist off the reservation—they only apply to the land that is reserved—that is, the reservation itself.  A federal reserved water right is measured by the amount of water necessary to fulfill the purposes of the reservation.  And a federal reserved water right does not exist to support an off-reservation treaty right to “take fish…in common with the citizens of the territory”(4).

That the proposed CSKT Compact reaches beyond the reservation boundaries, takes water management authority away from the State, claims all the water running through and beneath the reservation, and claims all of Flathead Lake might make you believe that this is, as Mr. Coleman said, “all about the water”. On the contrary, these facts help you know that this Compact is all about control. For whoever controls the water, controls the future.

1. The Governor’s report disingenuously claims that the appointed political board for the management of water is a ‘joint state-tribal’ endeavor.  The State is in fact relegated to an advisory role and is not on the management board.  The political appointees are 2-appointed by the Governor (must meet Tribal approval); 2 appointed by the Tribe; and 1 appointed by the four other members.  This guarantees that at least 3 of the 5 positions will be controlled by the Tribe.  This raises the specter of the failed Cooperative Management Entity whose disproportional membership assures that nothing happens.  The so-called management board is a political board that holds the lives of 28,000 Montanans in its hand, with no accountability to Montana’s constitution or laws.
2. Through the ownership of the irrigator’s water and the determination of the amount of water used, the Tribe will control the types of crops grown on private lands.  It is no secret that the Tribes propose that farmers only grow native crops in order to deal with the so-called ‘climate change’.
3.  Kathryn Bilodeau:  The Elusive Implied Right for Fish:  Do Off-Reservation Instream Flow Rights Exist to Support a Treaty Right to Fish? (psst…the answer is ‘no’). Scroll down to “documents/Court Decisions that Influence Indian Water Rights