©2014 Concerned Citizens of Western Montana
Ever since the CSKT filed their lawsuit on February 27 against individuals, irrigation districts, State Courts, the United States, and “John Does”, they have been insisting that it is a “narrowly- focused” lawsuit. Before the Water Policy Interim Committee on March 18 and the Environmental Quality Council on March 19, a CSKT staff attorney called the suit narrowly tailored, a claim that was immediately refuted by individuals whose land and water rights are the very subject of the lawsuit. There is little doubt that the Tribe will continue their attempts to paint the broadly-worded lawsuit as a ‘narrowly-focused’ legal effort. Given what we know about the lawsuit and its context, however, this effort at ‘damage control’ will be an uphill battle.
Context for the CSKT Lawsuit
While Concerned Citizens believes that a CSKT lawsuit was just one of the “plans A, B, C, D…” waiting in the wings in case the Compact was not approved, it was a ‘trigger’ that would be pulled at some point in time. It is useful to highlight, however, the context for why the lawsuit was triggered:
- CSKT Compact failure in the 2013 legislature and increased public knowledge. As we have discussed here, the CSKT Compact was defeated in the 2013 legislature largely due to the information developed and shared with the public as to the serious concerns with the Compact, including (1) the significant difference between the CSKT compact and all other Tribal compacts in Montana, (2) the failure to quantify the federal reserved water right, (3) the replacement of a dual state-tribal water administration program with a tribally-controlled, politically appointed water administration system and board, (4) the relinquishment of private water rights to the CSKT in exchange for a one-size-fits-all water allocation, and (5) expansive claims to “off reservation” water that is not a Federal Reserved water right.
- Decreasing public support for Compact as written. As demonstrated by the candidates forum held recently by the Flathead County Republican Women, all of the candidates indicated their refusal to support the current CSKT Compact as written. In addition, numerous letters in newspapers across the state have shown the public’s increasing knowledge and concern about elements of the CSKT Compact.
- Fifty Legislators ask for a legal, environmental and economic review of the CSKT Compact. A letter signed by fifty legislators requesting a review of the CSKT Compact before its consideration in the state legislature was submitted to the Environmental Quality Council on March 18, 2014. Despite its being assigned to another legislative committee, it is likely that significant resistance even to a ‘tweaked’ compact will exist in the 2015 legislature. The Tribes and compact proponents, of course, don’t believe studies are needed. Why? Because if they were done the Compact would have to be changed to minimize the significant economic, private property, legal, and constitutional issues that are associated with it.
- Failure of the Irrigator Water Use Agreement and Efforts by Irrigation Districts to Protect Water Rights. The Compact’s irrigator water use agreement was found to be an unconstitutional taking of property rights without compensation by the 20th Judicial District Court. In September 2013, the Flathead Joint Board of Control presented a list of three issues to the CSKT, federal, and state negotiators indicating that certain issues would have to be resolved before any new discussions of a water use agreement would be entertained. In December 2013, the FJBC requested both the Montana Water Court and the 20th Judicial District Court to “hold” the irrigators water rights in their stead for the proper resolution of whether those water rights were held by individuals or by the irrigation districts in trust for individuals.
- Dissolution of the FJBC and the Cooperative Management Entity. The Tribes’ control over the irrigation project was severely damaged by their own doing–and by the actions of several rogue irrigation district commissioners of the Mission and Jocko Districts to destroy the FJBC by withdrawing from it. These commissioners’ refusal to develop a plan for irrigation management resulted in the collapse of the cooperative management entity under which the Tribes had disproportional representation allowing them veto power over everything involved in irrigation.
- Litigation Threat. The threat of litigation has been used by the Tribes, the Compact Commission, and Compact proponents as a tool to coerce people into signing on to the Compact. Other federal entities have tried this too and have failed miserably to get what they want. This lawsuit showcases the CSKT’s intent to be adversarial concerning any “reasonable” settlement of their federal reserved water rights.
The CSKT had to do something to divert attention away from these developments—ergo, the lawsuit was triggered sooner rather than later.
The So-Called “Narrow” Focus of the CSKT Lawsuit
The lawsuit filed on February 27 is not ‘narrowly focused’. While the CSKT will claim that its only about water in the Flathead Irrigation Project, or that it is about “tribal involvement in decision-making”, the assertions in the Tribal lawsuit defeat its supposed narrow purpose:
- Repudiation of 100+ years of Federal law means no one owns their land or water right on the Flathead Reservation. The lawsuit is replete with assertions that the “aboriginal chain of title” was never lost despite more than 100 years of federal law-making. The lawsuit claims that the United States had no right to allot Indian lands, and that in fact no patent issued by the United States for reservation water or land is valid. At page 13 of the lawsuit, paragraph 45, it is claimed that once Indians began irrigating,” no non-Indian could own land or claim water rights on the Flathead Indian Reservation”.
What part of “no non-Indian could own land or claim water rights on the Flathead Indian Reservation” is “narrowly focused”?
Does this not sound like the definition of the reservation used in the Compact? Recall:
“The Flathead Indian Reservation is 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.”
- Repudiation of State Law and Institutions. The CSKT lawsuit attempts to remove the resolution of the Tribes’ federal reserved water rights from state court and put them into a federal forum. Based on an unsupported assertion that the State Courts are biased and unfair, the lawsuit “attempts to enjoin two Montana judicial institutions, the Montana Water Court and the 20th Judicial District Court, from hearing cases properly before them“. This flies in the face of long-standing federal law and practice, notably the McCarran Amendment, that federal reserved water rights may be resolved in State courts and disregards the Montana Supreme Court’s Greely decision directives that the Montana Water Court holds jurisdiction to resolve the federal reserved water rights of the CSKT.
What part of “enjoining two Montana judicial institutions…from hearing cases properly before them” is “narrowly focused”?
Does this not sound remarkably similar to the Compact’s assertion of complete Tribal jurisdiction over state-based water rights contemplated in the Unitary Management Ordinance? Recall:
“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”
- Claim for All Water Flowing On, Under and Flowing Through the Reservation. In the lawsuit, the Tribes claim complete ownership of and title to all the water on the reservation, derived from its ‘aboriginal chain of title’ argument and on an incorrect reading of the Winters Doctrine, claiming that the Winters Doctrine reserved all of the water on the reservation for the Tribes. By now, nearly everyone in Montana knows that a federal reserved water right is the amount of water necessary to fulfill the purposes of the reservation. That is not all the water on the reservation, it is only that amount to fulfill the purposes of the Flathead Indian Reservation as determined by the Treaty of Hellgate. Furthermore, the Tribes claim they have the title to all of the water used by the irrigation project
So, what part of the “claim for all water flowing on, under and flowing through the reservation” is “narrowly focused”‘?
Does this claim not sound exactly like the Compact’s 1,000+ pages of Water Abstracts and the required relinquishment of project water rights claims by the irrigators in the Water Use Agreement?
There is a tough road ahead for anyone who tries to downplay, distort, or minimize the true contents and danger of the Compact and the CSKT’s recent lawsuit. Once exposed, both speak volumes for true intentions. Relinquishing Montana’s constitutional authority for water administration, turning over western Montana’s water resources to the Department of the Interior Bureau of Indian Affairs, failing to address the water and economic development needs of the Tribal people, and eviscerating state judicial institutions won’t be viewed as a popular chapter in Montana’s history.
View CSKT Lawsuit here.