© 2014 Concerned Citizens of Western Montana

This is the first of a series of articles providing historical details of the reservation that we’ve uncovered while questioning and researching the foundational premises of the Flathead Water Compact and the CSKT lawsuit.  We hope that the reader will find it helpful as we prepare for the upcoming 2015 legislative push for the same old worn out, bloated and overreaching water compact.

In the very first post on this blog two years ago, we lamented the mistreatment of Native Americans long ago and called for fairness concerning water rights and the water needs of everyone.  We still hold faithful to those declarations.  In 2014 America, it is unacceptable that any group of people should be taken advantage of or mistreated. We also believe that in a country whose very foundation is that “all men are created equal”, no individual or group should be given special advantage because of their race.

It is also a given that water is the very essence of life, and as such, is not something that should be politicized or controlled by an elite group of people who can use it to exert power and control over a large number of citizens.  To do so would work against the very foundation of our country and the principles of freedom.

Since those early days in the effort to inform ourselves and others about the Flathead Reservation water compact, our learning curve has been very steep.  There has been a steady stream of information brought to light that has helped us piece together the history of the reservation, allotments and homesteading, and the Flathead Irrigation and Power Project.

We realized very quickly that to understand the compact documents and the “talking points” provided us, we needed to dig deep into history.  This was crucial to determining whether or not the compact commission’s key assumptions going into negotiations were in fact true.  Instead of finding truth in the statements of the compact negotiators, we discovered that the parties expected us to believe something that we will call “convenient” or opportunistic history.

To complicate things even further, we undertook our research with a clear understanding that the compact dovetails nicely with the goals of a federal government that advances and agenda for control over its citizens and presently considers itself first and foremost as a trustee for all federally recognized Indian tribes, even if it is to the detriment of all other citizens.

Much of what is taking place on the Flathead Reservation today begins and ends with partial truths and the omission of important historical information and facts.  Had that information been appropriately communicated to the public, everyone would more clearly see this water compact and the recent lawsuit by the CSKT for what they really are:  a significant overreach for control and power by the federal government and tribal elite.  On the other side of the coin, complete disclosure would also put a microscope on the Compact Commission and Governor Bullock’s complete capitulation of ownership and control of Montana’s water to the federal government for reasons only they know.  Concerned Citizen’s recent comprehensive review and analysis of the governor’s report, explains in detail how this chess game is being played.

To add insult to injury, the CSKT recently filed a lawsuit that makes some very bold claims that could lead the average reader to believe aboriginal title to all the land within the reservation boundaries still exists, notwithstanding the fact that 1/2 of it is privately owned.  The suit goes on to imply that the original homesteaders were little more than freeloaders off the system, given opportunity after opportunity, after opportunity to “pay for the irrigation project” and to perfect their water rights, which they failed to do.  Additionally CSKT attorneys would like the courts to believe that the irrigation project was established solely for the Indians, and for that reason the ownership of its valuable water rights belongs to them.

Unfortunately for the CSKT, careful scrutiny of a more complete and factual history of the reservation makes the tribe’s arguments concerning land and water fall very flat.

ORIGINAL INDIAN TITLE

In our post entitled The Compact and the New Tribal Lawsuit are the Same, we discussed the fact that both the compact and the CSKT lawsuit lay tribal claim to the homesteaded and private fee lands with reservation boundaries.

The CSKT is not the only tribe that has used the courts to attempt to claim existing aboriginal title to ceded lands both inside of and outside of their reservation boundaries.  To help give those claims context, here are a few excerpts from an article named ORIGINAL INDIAN TITLE by Felix S. Cohen, a lawyer, scholar and author of the Handbook of Federal Indian Law.  His article ORIGINAL INDIAN TITLE extensively discusses the extinguishment of aboriginal title:

Fortunately for the security of American real estate titles, the business of securing cessions of Indian titles has been, on the whole, conscientiously pursued by the Federal Government, as long as there has been a Federal Government. The notion that America was stolen from the Indians is one of the myths by which we Americans are prone to hide our real virtues and make our idealism look as hard-boiled as possible. We are probably the one great nation in the world that has consistently sought to deal with an aboriginal population on fair and equitable terms. We have not always succeeded in this effort but our deviations have not been typical.

Cohen goes on to say:

Every American schoolboy is taught to believe that the lands of the United States were acquired by purchase or treaty from Britain, Spain, France, Mexico, and Russia, and that for all the continental lands so purchased we paid about 50 million dollars out of the Federal Treasury. Most of us believe this story as unquestioningly as we believe in electricity or corporations. We have seen little maps of the United States in our history books and big maps in our geography books showing the vast area that Napoleon sold us in 1803 for 15 million dollars and the various other cessions that make up the story of our national expansion. As for the original Indian owners of the continent, the common impression is that we took the land from them by force and proceeded to lock them up in concentration camps called “reservations.”

Notwithstanding this prevailing mythology, the historic fact is that practically all of the real estate acquired by the United States since 1776 was purchased not from Napoleon or any other emperor or czar but from its original Indian owners.” What we acquired from Napoleon in the Louisiana Purchase was not real estate, for practically all of the ceded territory that was not privately owned by Spanish and French settlers was still owned by the Indians, and the property rights of all the inhabitants were safeguarded by the terms of the treaty of cession.  What we did acquire from Napoleon was not the land, which was not his to sell, but simply the power to govern and to tax, the same sort of power that we gained with the acquisition of Puerto Rico or the Virgin Islands a century later.

And he continues by saying…..

But in its totality the account of our land transactions with the Indians is not small potatoes. While nobody has ever calculated the total sum paid by the United States to Indian tribes as consideration for more than two million square miles of land purchased from them, and any such calculation would have to take account of the conjectural value of a myriad of commodities, special services, and tax exemptions, which commonly took the place of cash, a conservative estimate would put the total price of Indian lands sold to the United States at a figure somewhat in excess of 800 million dollars.

(Note:  this figure does not include amounts paid by the Indian Claims Commission or the United States Court of Claims for the cession of these same lands).

THE INDIAN CLAIMS COMMISSION AND THE CSKT

How many times have the CSKT been paid for the lands ceded by them in the treaty, and for the homesteaded lands, the rights of way, and other lands taken by the federal government on the reservation?

While we do not have a satisfactory answer at this time, we do know that through this water compact and the lawsuit, it would appear that the CSKT now expect private citizens to pay for the acts of the federal government with their water rights, up to and including the fee patent titles to their lands, a large portion of which were purchased from Indians over the past century.  Before we move into that discussion, here are a few important points of reference:

Article 1 of the Treaty of Hellgate says:

The said confederated tribe of Indians hereby cede, relinquish, and convey to the United States all their right, title, and interest in and to the country occupied or claimed by them

This statement is strikingly clear, yet in asking for “off reservation” water rights, the “convenient” history used by compact negotiators, ignores this fact.

Article 6 of the Treaty of Hellgate says:

The President may from time to time, at his discretion, cause the whole, or such portion of such reservation as he may think proper, to be surveyed into lots, and assign the same to such individuals or families of the said confederated tribes as are willing to avail themselves of the privilege, and will locate on the same as a permanent home, on the same terms and subject to the same regulations as are provided in the sixth article of the treaty with the Omahas, so far as the same may be applicable.

Article 6 of the treaty with the Omahas says (in part):

…….And the residue of the land hereby reserved, or of that which may be selected in lieu thereof, after all of the Indian persons or families shall have had assigned to them permanent homes, may be sold for their benefit, under such laws, rules or regulations, as may hereafter be prescribed by the Congress or President of the United States.

It is clear from these documents that the treaty of Hellgate allowed for the allotment of and sale of surplus lands at the discretion of the Congress and the President of the United States.  After the allotment of lands to the Indians, the treaty paved the way for excess lands to be sold for the benefit of such Indians.

The Indian Reorganization Act of 1934 (IRA) specifically stated that the lands sold and purchased by the homesteaders constituted valid, legal claims and were not affected in any way by the consolidation of remaing Tribal lands within the Flathead Indian Reservation authorized by the IRA.

In 1946, well after the allotment and homesteading of Flathead Reservation lands, President Harry S. Truman signed the Indian Claims Commission Act. This Act created a special judicial body that allowed American Indian tribes to file all kinds of claims against the United States, and that such claims would be forever resolved. In other words, it provided that determination of a claim by the commission and any subsequent judgment payment would forever discharge the United States government, and prevent any other claims on the matter at hand.

The CSKT could and did participate in the claims commission process.  To note, a document easily found on the internet called Flathead Reservation Timeline  (developed by the CSKT) includes the following references related to payments for their lands:

1965 – The Indian Claims Commission determined that Confederated Salish and Kootenai Tribes had not been compensated for the lands ceded in the 1855 Treaty of Hell Gate. “…the Tribes had surrendered 12, 005,000 acres to the government which were worth $5,300,000. The total payment to the tribes, however, had only been $593,377.82.” After fees were taken out, the tribes received $4,016,293.29 in 1967. The compensation was determined in 1855 land values. No interest paid on the 112 years the Tribes had been deprived of the money.

1971 – The U.S. Court of Claims found that the Flathead Allotment Act was a breach of the 1855 Treaty of Hell Gate.  Compensation to the Tribes was determined in 1912 land values, totaling $7,410,000, of which only $1,783,549 had been paid. The balance of $5,626,451 was paid a few years later.

Note:  Information concerning payments by the Indian Claims Commission and the Court of Claims can be found on the LIBRARY page of our blog, under the INDIAN CLAIMS COMMISSION DOCUMENTS link.

The CSKT were paid by the United States for their ceded lands, and for the lands within reservation boundaries that were homesteaded or used for other purposes.  So why does the tribe continue to push the idea that they have a powerful argument with respect to the ownership of title to all reservation lands?

  • Is it because they believe they will get an activist federal judge that is willing to declare their questionable legal theories are true?
  • Is this part of a legal strategy by the CSKT to break the financial backs of the irrigation districts and others so they ultimately will stop defending their property rights and the water that goes along with them?
  • Is it designed to “nudge” legislators into accepting the compact in exchange for the tribe dropping their lawsuit?
  • Is it at all possible the tribe believes that the courts will be able to rewrite history to favor their goal of ownership and control of reservation lands as well as their ceded lands?

Through their lawsuit, it appears that the CSKT elite continue to advance an unconscionable agenda that flies in the face of history.

The simple matter is that through their treaty, the CSKT ceded all right and title to lands off the reservation and allowed for homesteading on the reservation at the discretion of the President and Congress.  While the historical records indicate the CSKT were opposed to homesteading on the reservation, they did in fact accept funds from the United States for the purchase of those lands.

There is nothing in the record we are able to find that says the CSKT could accept payment for those lands and at the same time retain title to the land and to the water that is appurtenant to them.

Nice try by no banana, or for those of you who prefer, close but no cigar.

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