©2014 Concerned Citizens of Western Montana
This is the third and final installment of the series on the Compact Commission’s failure to serve Montana in the negotiation of the proposed CSKT Compact. Yes, of course the objective is to settle the federal reserved water rights of the Tribes claiming reserved rights in the state, so naturally there is a focus on the specific Indian tribe. But the legislative intent in setting up the Compact Commission was to ensure that fair and equitable agreements were reached that benefit all citizens of Montana, including the Tribal people who are both citizens of the State and the United States. It is in this area that the Compact Commission failed most spectacularly.
Our focus has been an evaluation of the Governor’s Report on the Proposed CSKT Compact which was issued in December, 2013. Concerned Citizens developed a comprehensive review of that report, which can be found here, and has reported in previous posts on aspects of the Governor’s report, including the history and status of the negotiations, the quality of the scientific information that exists to support the Compact, and the disconnect between the language of the Governor’s Report and the Compact documents themselves. The Governor’s report and the Compact are almost two different documents.
The dangerous aspect of the Governor’s Report is that those who are unaware of the reality of the Compact would read this “Mom and Apple Pie” report as, well, Mom and Apple Pie. It is unfortunately written in a way that masks the true elements and objectives of the Compact, and this brings us to our final analysis of the Compact Commission’s Report: its critical errors wrought by omission.
Errors by Omission
“Errors of omission” as described here means the failure to include key language and facts of a certain statements which then lead to conclusions that are contrary to the true meaning if those omissions had been included in the original statement. These omissions tend to justify certain positions in the Governor’s report instead of providing material and legal support for those positions. Two areas where key language was omitted are:
- Off-reservation water claims for instream flow
- The Compact Commission’s authority to negotiate off-reservation water claims
Off-reservation water claims
Justification for the off-reservation water claims is described on page 6 of the Governor’s report in “question and answer format”. The Compact Commission begins with the Treaty of Hellgate as its justification for the off-reservation claims by omitting key language in the treaty itself.
The Compact Commission’s version of Article I of the Treaty of Hellgate:
The Treaty of Hellgate established the Flathead Indian Reservation on July 16, 1855. Through the same document, the Tribes ceded to the United States more than 20 million acres of aboriginal homeland.
Key language omitted by the Compact Commission involved what was ceded to the United States, which included
all their right, title, and interest in and to the country occupied or claimed by them
The complete sentence would have read:
The Treaty of Hellgate established the Flathead Indian Reservation on July 16, 1855. Through the same document, the Tribes ceded to the United States all their right, title, and interest in and to the more than 20 million acres of aboriginal homeland.
What claims remain on land whose rights, title, and interest in were ceded to the United States?
By omitting the part about ceding “all rights, title, and interest in and to”, the Governor’s report gave the impression that the Tribes just ceded the land and had retained some rights–specifically the right to claim water for instream flows. Further, the Compact Commission suggests that a right to take fish in common with the citizens of the territory implies a water right, when the Treaty clearly defines this right to take fish in the context of “erecting temporary buildings for curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle on open and unclaimed land“. To award a water right to support a right to take fish not only changes the purpose of the Treaty and intent of its language, but would suggest that all citizens of the Territory also have a water right to their favorite fishing spot.
Compact Commission’s authority to negotiate off-reservation claims
The question was raised by the public whether the Compact Commission had authority to negotiate off-reservation claims to water in a federal reserved water rights proceeding. Recall that by law, a federal reserved water right applies only to the land so reserved–there is no federal reserved water right outside of any federal reservation whether an Indian Reservation, National Park, or National Forest.
The Compact Commission argues that it has the authority to negotiate all of the Tribes’ water rights that derive from federal law, omitting that its legislative charter authorizes it only to negotiate agreements with Tribes claiming reserved water rights.
In supporting this proposition, the Commission cites two legal cases that apply only to reservation land, not off-reservation aboriginal territory. The Greely case was about whether Montana’s laws or procedures were adequate forums to resolve the Tribes’ federal reserved water rights. For the purposes of on-reservation federal reserved water rights, the Montana Supreme Court agreed that the on-reservation water rights necessary to support a fishery were derived from the Treaty and were ‘aboriginal’ water rights, and agreed for the purpose of on-reservation resolution of water rights, they could be resolved as part of a federal reserved water rights proceeding.
Putting these two together in the context of omission of key facts brings you this:
[The Compact Commission] has authority to negotiate all of the Tribes’ water rights that derive from federal law…The Montana Supreme Court has confirmed that there is no distinction between “reserved” an “aboriginal” rights in this context.
The key omissions here are (a) the Commission’s authority to negotiate only those “reserved water rights” claimed by Tribes, and (b) on the reservation only, there is no distinction between reserved and aboriginal rights. These are stunning omissions that together justify rather than support the Commission’s fundamental error in going off reservation to negotiate “water rights”.
It is relevant here that the Montana General Stream Adjudication is a McCarran Amendment proceeding, where the sovereign immunity of the United States (and Tribes) is waived for the purpose of resolving federal reserved water rights. The immunity of the United States can only be waived as long as everybody’s water rights are being addressed, which is what a general stream adjudication is. The Governor’s report justifies this inclusion of off-reservation water rights by saying the McCarran Amendment requires “unified proceedings”. Another critical omission of the fact that only federal reserved water rights can be addressed. No off-reservation anything can be addressed in a McCarran Amendment proceeding.
There are many other errors of omission in the Governor’s report that are described by the Concerned Citizen’s review and analysis. These include:
- The unitary management ordinance
- The water use agreement
- The management of the Flathead Irrigation Project
- Why environmental, economic, and private property studies were not completed
Please take a look at our report for detailed information on these omissions.
Concerned Citizens of Western Montana Analysis of the Governor’s Report
Attachments to CCWM Analysis of the Governor’s Report
In conclusion of this series of articles, we believe the Governor’s report did not get Montana any closer to supporting the proposed CSKT Compact. It is disappointing that so much money and time was invested in this negotiation only to produce a product that leaves so many questions unanswered.