©2014 Concerned Citizens of Western Montana

“If we don’t pass the Compact, the CSKT will immediately file 10,000 claims across Montana, even east of the Continental Divide, for their water rights!” 

The sky is falling!  The sky is falling!

How many times have you heard this claim made by compact proponents, the Compact Commission, various pro-compact representatives and senators, the Tribes, the Governor, the Attorney General, present DNRC staff, and former DNRC staff having lucrative contracts with the state?   Probably 10,000 times.

Would it surprise you to know that this statement is just a scare tactic to force Montanans into accepting a flawed document?  Here’s why:

  • The off-reservation claims for water even beyond the CSKT aboriginal area (into their subsistence area) are NOT federal reserved water rights, which apply only to the reservation.  Federal reserved water rights on reservation are the only rights that can be adjudicated by the Montana Water Court per the McCarran Amendment.
  • The CSKT have no treaty claim to off-reservation instream water rights even in their aboriginal territory as stated plainly in  Article 3 of the Treaty of Hellgate.
  • The Indian Claims Commission paid the CSKT tens of millions of dollars already for the claims they are now asserting off reservation, and even on reservation, so that such wildly off-based claims are precluded from any action of the Tribe.  Res Judicata, anyone?
  • The subsistence area that the CSKT are claiming holds water rights for them alone is also shared by other Tribes.  Tribe vs Tribe competition, anyone?
  • Proving a water right in a subsistence area requires a showing that the Tribes indeed and actually use this water and resources for their subsistence, not McDonald’s like everyone else.

Even some well-respected but uninformed Senators repeat this claim and base it on the erroneous reading of the Nez Perce Treaty, also a “Stevens Treaty,” and that the Snake River Basin adjudication awarded the Nez Perce some 200 off-reservation water rights.  Importantly, and unlike the Treaty of Hellgate, however, the Nez Perce Treaty of 1863 actually reserves off-reservation springs and fountains to the Tribe…the actual language “reserve springs and fountains off reservation” is in the treaty.  The language in the Hellgate Treaty explicitly states that the CSKT cede and relinquish all rights, claims, and title to the land they ceded to the United States which today is NOT part of the reservation.

Representative Kathleen Williams, when introducing the Compact bill in the 2013 legislative session, stated that “her dog in the fight” was that she didn’t want the CSKT coming into the Bozeman area claiming water rights there…aka, the sky is falling 10,000 claims are somehow a threat to Bozeman.

It is true that the tribes will threaten to make these claims precisely to gum up the Montana General Stream Adjudication….unlike the rest of us they don’t have to pay fees to file their claims.  But let’s look at the experience of other states with this:

  • In Idaho, the BLM filed 6,000 claims for water in a general stream adjudication.  Only SIX (6) were approved.
  • The Nez Perce Tribes’ claims, cited above, and Idaho agreed to a settlement. While they initially claimed a time immemorial instream flow right to the entire Snake River, they ultimately got 200 instream flows on tributaries of the Salmon and Clearwater rivers with a priority date of 2004.  The settlement agreement subordinated ALL of those instream flows to existing irrigation water rights and future non-Indian water development. (Note to the state of Montana: this is how you protect your citizens).
  • Similar federal claims in New Mexico, Utah, Wyoming, and Colorado have been flatly rejected by the Courts

So the next time you hear anyone threaten you with 10,000 claims, call ’em “chicken little”.  No guts to stand up for Montana?  Then no glory.

Additional Resources:

Mountain States Legal Foundation Brief – Res Judicata

To learn more about this tribe’s experience with the Indian Claims Commission, visit our  United States Court of Claims and Indian Claims Commission Documents on the LIBRARY page of our blog.

Nez Perce Treaty – jump to Section on Fountains and Springs