© 2014 Concerned Citizens of Western Montana

In the definition pages of the CSKT Water Compact (Page 9), the Flathead Indian Reservation is defined as:

“Flathead Indian Reservation” or “Reservation” means 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.¹ (emphasis added)

The operative word of this troubling definition of the Flathead Indian Reservation is “notwithstanding”, which means:

in spite of; without being opposed or prevented by

Synonyms include “in spite of”, “despite”,  “even so”, and a related word would be “regardless”.  A common usage would be in a sentence like,

Although there are some who oppose the plan,we will go through with it notwithstanding.

So let’s rewrite the definition of the Flathead Indian Reservation in these terms:

“Flathead Indian Reservation” or “Reservation” means all land within the exterior boundaries of the Indian Reservation established under the July 16, 1855 Treaty of Hellgate (12 Stat. 975), in spite of , despite, or regardless  of the issuance of any patent, and including rights-of-way running through the Reservation.¹ 

Concerned Citizens has maintained that the significance of this definition is that it ignores history and the law, and 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 the existence of private property on the reservation.  Our concerns are further supported by the Tribes’ own discussion of where the definition of the reservation came from, which is a definition of “Indian Country”, not a reservation.²

“The definition for Reservation Lands used in the Compact is derived from the common Federal definition found in various court decisions, and federal law and regulation, 18 U.S.C.A. 1151″

This is the definition of “Indian Country” for criminal jurisdiction or environmental regulation purposes and this definition has nothing to do with land and water rights.

Let us be clear:  from the standpoint of quantifying the federal reserved water rights of the CSKT, the only land that should be included is the land currently held in trust status for the CSKT and Indian fee land, or ‘restricted Indian fee’ within the exterior boundaries of the Flathead Indian Reservation

In the Compact, this definition of the reservation is  used to open the door for giving away state administration of the waters within reservation boundaries through the Unitary Management Ordinance and as a pretext for claiming ownership of all the water on the reservation.  For example, this definition is also used to pave the way for the taking of water from project irrigators through the Water Use Agreement , and the significant overreach for other waters on the reservation including all the water in Flathead Lake.

In the Water Policy Interim Committee meeting of January 6, the question was asked “what does the word ‘notwithstanding’ mean?”  Neither Director Tubbs, Representative Kathleen Williams, nor Compact Commission attorney Melissa Hornbein were able to define the word.  Or were they caught knowing that the use of this word in the definition of the reservation could have the effect of making fee land “Indian Country”?

Misinformation on Riverton, Wyoming

Recent articles concerning the Environmental Protection Agency’s (EPA) granting “treatment as a state” to the Eastern Shoshone and Northern Arapaho Tribes in Wyoming for purposes of the Clean Air Act are being frantically circulated to incorrectly say that the Tribes are making the municipality of Riverton a part of the Wind River Reservation. These articles are used to foment panic that the CSKT will take private lands on the Flathead Indian Reservation and give them to the tribe.

However, Riverton, like Polson MT, are currently “within the exterior boundaries of the reservation”, but have fee patents –they are private lands within the reservation.  While the land itself is not being taken into ‘tribal ownership’, jurisdiction is expanded through the Clean Air Act in Wyoming and through the Compact’s definition of the Flathead Indian Reservation in Montana.

While the Riverton story should be of great concern because it serves to expand a form of tribal jurisdiction over non-Indians even beyond the reservation, the EPA did not, and cannot take away private property or a municipality and give it to the tribes. 

The CSKT compact also will not turn private lands over to the tribe, however it  treats them as if they are the same as Indian Country so as to expand tribal jurisdiction over water uses and water quality, which ultimately could restrict what property owners are able to do with their property. The CSKT Compact does take property rights in water, however, through the now-defunct water use agreement.  Admittedly this is a very fine line.

The proposed compact will also serve to be of great detriment to the agriculture community.  We know this because the existing proposed compact as written clearly demonstrates an anti-agriculture perspective.  Tribal leadership has demonstrated they are hostile to irrigators and if they are able to control the administration of water and water quality, the agricultural sector is the most impacted by restrictive regulations.

TAKE A DEEP BREATH

We ask the public to please exercise discernment in circulating stories that serve to create misunderstanding about this compact.  Take a deep breath, and do your homework on this issue.  The relevant issue about Riverton is how federal agencies are expanding Tribal jurisdiction–not for the benefit of the Tribes–but for the benefit of the federal government under the guise of environmental protection.  Remember Montana’s constitution already guarantees Montanan’s a right to a healthy environment, administered by the State of Montana.

It is only by taking the time necessary to truly understand this compact that we will be successful in finding a solution that works for everyone in western Montana.  The compact has enough legal, constitutional and other issues in it that we do not need the extraneous issues to get us off on tangents that will only serve to discredit the compact opposition, and will not be helpful in our efforts to kill the existing compact and to find a solution that truly will work for all western Montanans.

And last but not least, remember that the arguments of compact proponents are bankrupt.  They cannot tell people all that is good about the compact because it is fraught with too many issues that cannot be sufficiently explained.  Remember, the commission has refused to complete the necessary studies that would have given people a better understanding of its impacts, both good and bad.

Instead proponents must rely on personal attacks on compact opponents and any misinformation about stories such as Riverton through the likes of Dick Barrett and Dan Salomon, seated legislators and compact commission members.  They will do anything in their power to discredit all opposition to this very bad document that they would like to hang around the neck of Montana forever into the future for whatever political or business purposes they have in mind.

¹  Definition of Notwithstanding is preposition meaning all the same, despite, even, however, in any case, in any event, in spite of, nevertheless, none the less, still, yet

² Table of Responses to CSKT Comments on the Critical Review and Alternative Compact documents, found in the Library/Documents section of this blog.

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