© 2014 Concerned Citizens of Western Montana
The battle being waged on the Flathead Reservation goes much deeper than the water, or even the land. It is a battle being fought over sovereignty and control over every one and every thing that exists within the exterior boundaries of the reservation. Let us call it the CSKT government versus the state of Montana and its citizens.
In Part 1 of this series: Filling in the Blanks, we began a discussion about the errors and omissions from history that are used by the compact commission and the tribes to perpetuate the myth that the CSKT not only have strong claims to all the water on the reservation, but also to the land.
We have often said that in these compact “negotiations”, the state of Montana conceded everything to the CSKT, and then spent the last 5 or 6 years attempting to rationalize their capitulation by developing strong talking points, creating a public narrative to support the compact as written, and last but not least, backing into the science of the numbers behind the compact.
This article exposes some of the “stories” the compact commission told to the public concerning the issue of water jurisdiction. As is typical of this compact commission, half truths and omissions were used to rationalize or justify the existence Unitary Management Board, a board that effectively enables the CSKT to have jurisdiction over the water needs of every person living within the boundaries of the reservation.
THE CIOTTI DECISION(S)
In public meetings, the compact commission often referred to the existence of a “jurisdictional vacuum” on the reservation. This so called vacuum was created by a Montana Supreme Court decision in 1996 that said the state could not issue new water use permits on the reservation until the tribe’s federal reserved water rights were quantified.
The CSKT is responsible for getting the courts to put this restriction in place. In the 1970’s, they initiated a series of lawsuits intended to stop state administration of water on the reservation. The tribe has been very consistent and quite successful in their objective to slow down development of new water claims and limit changes of existing uses of water by private landowners within reservation boundaries.
In 1996 tribal attorneys hit pay dirt in a Montana Supreme court decision known as the Ciotti decision. In that case, the Montana Supreme Court held that the state of Montana was precluded from adjudicating water rights on the Flathead Reservation because the CSKT reserved water rights had not been quantified. The decision said in part:
….. an applicant for a permit to use water within the exterior boundaries of the Flathead Reservation must prove that his proposed use does not unreasonably interfere with the Tribes’ reserved water rights. We hold that given the nature of Indian reserved water rights such a showing cannot be made until the Tribes’ rights are quantified ….. we further hold that DNRC does not have authority to grant water use permits on the reservation until that quantification is complete……
This position was reiterated again in Ciotti II:
In conclusion, the DNRC lacks jurisdiction over waters within the exterior boundaries of the Reservation. State administrative power is not authorized with respect to Indian reserved water rights until those rights have been adjudicated (or quantified by compact negotiation). And while regulatory power may exist with respect to excess, non-reserved waters, it is not presently possible to know whether such waters even exist on the Reservation and whether a particular putative state-law water right is to such non-reserved waters since the Tribes’ reserved water rights have not yet been quantified.
This decision effectively stopped adjudication in western Montana and water permitting on the reservation in their tracks. It also placed great pressure upon Montana officials and the compact commission to quantify the tribe’s water rights, so their goal of adjudication for all water in Montana could be accomplished. It also seemingly placed the CSKT in a position of power concerning their federal reserved water rights negotiations.
TRIBAL COMPACT PROPOSALS
It is very difficult to know exactly when the on again and off again negotiations for the CSKT’s federal reserved water rights actually began. Documents gathered from Freedom of Information Act requests seem to indicate that the state had great difficulty working with the tribe toward a negotiated settlement.
In a negotiation, it is understandable and expected that both parties would place their “wish lists” on the table for consideration. It is also anticipated that in good faith negotiations there is compromise between the parties toward achieving an agreement that works for both sides. The proposed compact of 2013 provides no significant evidence of compromise by the CSKT.
The CSKT attorneys were bold. They laid out their case for ownership and control of all the water within reservation boundaries in their 2001 compact proposal which proclaimed:
Water is a unitary resource – The hydrologic cycle is a unitary system. Unitary management and administration of all water on and under the Flathead Indian Reservation by one government is a logical and pragmatic use of limited resources. We propose the development of a reservation wide tribal management ordinance……All water on and under the Flathead Indian Reservation is owned by the United States in trust for the Confederated Salish and Kootenai Tribes.
To their credit, Montana did not agree with the tribe’s proposed framework at that time. In a 2002 article “Liquid Assets“, attorney for the compact commission said as much. The state still maintained a strong position as late as 2008 when John Tubbs, now director of the Montana DNRC sent a letter to compact commission director Susan Cottingham. His letter was intended to establish a framework for negotiations and stated clearly that “Holders of state based water rights need to be able to come to DNRC to address their concerns” and “administration cannot be exclusively by tribal ordinance.”
But the CSKT held firm, and in 2010 they presented essentially the same proposal again. Apparently it is somewhere around this time, coinciding with the tenure of Governor Brian Schweitzer and the hiring of compact commission attorney Jay Weiner, that the state capitulated on most major points demanded by the tribe. They agreed to a Unitary Management Board, the tribe’s ownership of the water flowing through and under the reservation, conceded off reservation water, and the forced relinquishment of irrigation project water rights to the CSKT.
While it is impossible to know the real reasons for this capitulation by the state of Montana, it seems likely that by this point in time, the compact commission had so much invested in the so called “success” of other compacts that they were determined to achieve a compact for the Flathead Reservation, no matter what the cost to the state of Montana.
WE THREW OUR CITIZENS UNDER THE BUS: NOW WHAT?
STEP 1: FINE TUNE TALKING YOUR POINTS
Instead of being honest with the public, the commission and the state’s talking points began to change. It was from this time forward that the public began to hear that the tribe’s treaty gives them very strong claims to both on and off reservation water, that litigation will be expensive and time consuming, and that the tribe has made “major concessions” in this compact. There also was the infamous “this is the best deal you’re going to get” sales job.
The simple truth is that it was the state that made the only “major concessions” in the compact. It gave up both its water and its constitutional duty to protect its citizens by agreeing to deny them state jurisdiction for their water needs.
STEP 2: SMOKE AND MIRRORS – CONTRIVE A PROBLEM THAT MUST BE FIXED
From the time the commission capitulated to the tribe on water administration, they attempted to lead the public to believe that the Ciotti decision left a jurisdictional void that made it necessary for the commission to include Unitary Management in the compact. THIS IS NOT ONLY INCORRECT, BUT IT IS UNTRUE.
The commission used the jurisdictional issue created by the Ciotti decision to advance the tribe’s idea of “Unitary Management”. They disingenuously attempted to give the public the impression this was a permanent problem that needed to be addressed in the compact. The commission became very adept at repeating that the state could not issue water permits on the reservation, and hence the need to create an entity to manage water needs within reservation boundaries. They intentionally left out the remainder of the sentence that said “until the tribe’s federal reserved water rights are quantified.” This court created “temporary jurisdictional vacuum” is now being used by the tribe and the compact commission as a Trojan horse for tribal jurisdiction over the water needs for 23,000 non-Indians living within reservation boundaries.
STEP 3: RATIONALIZE IT’S CONSTITUTIONALITY AND LEGALITY, AND CALL IT SOMETHING “GRAND”
The commission has also referred to their capitulation over water management on the reservation as the GRAND BARGAIN. At a public meeting in 2012, Jay Weiner said the state expected to start getting pushback from the tribe because they had negotiated so successfully and had forced the tribe into making too many concessions in the compact. Chris Tweeten, chairman of the compact commission responded by saying:
“Jay talked about pushback from the tribe at some point about what they’re being asked to give, and I think, that in addition to the point that Jay made, the response is to remind the tribes about the GRAND BARGAIN, and the fact that we agreed to do this extraordinary thing, frankly, with respect to agreeing to subject or to remove non-Indian rights on the reservation from the jurisdiction and control of the state, and place that somewhere else at the tribe’s request.”
Listen to audio:
When asked to elaborate on the GRAND BARGAIN, Tweeten added that it was the compact commission that decided make the Ciotti decision permanent, forever removing the state from any jurisdiction over reservation water. However he was quick to add that it would be legislators that would ultimately make the decision “to extend the non-jurisdiction of DNRC and agree to vest jurisdiction in the Unitary Board.” “This”, he said, would be done “in the exercise of its constitutional power to regulate the use of water on the reservation.”
The Ciotti decision became a means to an end. Through omission, and by only conveying part of the Montana Supreme Court decision, the compact commission made a conscious decision to “INVENT” the need for a Unitary Management Ordinance. This narrative also conveniently played into their talking point of “protecting” water users.
VIOLATION OF EQUAL PROTECTION
The Unitary Management Ordinance is the most egregious aspect of the Flathead Water Compact because it blatantly violates and casually discards very specific guarantees of equal protection under the United States and Montana Constitutions. The Equal Protection Clause in the United States Constitution is part of the Fourteenth Amendment. It provides that no state shall deny to any person within its jurisdiction the equal protection of the laws:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Article II Section 4 of the Montana Constitution states:
The dignity of the human being is inviolable. No person shall be denied equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminated against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.
The UMO proposes to remove a class of citizens, non-Indians living within the reservation boundaries, from the protection of the state of Montana for their water needs, based purely upon where they live. All other tribal compacts in the state allow for what is called dual administration where the state manages its water interests and the tribes manage theirs.
In this compact, the CSKT are given administration of the water because buried in the thousand pages of abstracts the compact essentially gives the CSKT all the water on and under the reservation to manage.
Since the 1970’s, tribal governments have attempted to systematically chip away at the personal sovereignty of non-Indians who often find themselves at odds with a tribal government which they can never have a say in. Diminished hunting and fishing rights are an example.
Tribal jurisdiction is generally restricted to tribal members and specific areas of land that tribes or tribal members own in fee title are held in federal trust. If ratified as part of this compact, the Unitary Management Ordinance will reverberate around the country as a precedent that paves the way for many types of tribal jurisdiction over non-Indians within reservation boundaries, and perhaps even outside of them.
Don’t listen to what the compact commission, the governor or the tribes are saying about the virtues of the compact. Read it yourself, then refresh yourself on the Constitution. It doesn’t take a brain surgeon or a nuclear physicist to realize that the Unitary Management Ordinance violates both the Montana and United States Constitutions, and as such must firmly be rejected.