Photo dated 05/22/2014 St. Ignatius, MT
There is a legal fiction which has permeated the halls of Montana state government and its legislative committees, the Bureau of Indian Affairs and Department of the Interior, and the entire CSKT Compact: that the irrigation project on the Flathead Reservation is known as the “Flathead Indian Irrigation Project”. The purpose of promoting this falsehood is to imply a number of things–first and foremost, that the CSKT owns the irrigation project and the water used therein, and that because of that ownership, it has the right to dictate how much water irrigators receive and how it is to be managed.
But there is another reason why the Tribes promote this legal fiction–and that has to do with the origin of the Flathead Irrigation and Power project as a Reclamation project and the Indian Reorganization Act. Let’s examine these fundamental issues to understand why the irrigation project on the Flathead Indian Reservation is legally known as the Flathead Irrigation and Power Project (FIPP).
Reclamation Origin of Flathead Irrigation and Power Project (FIPP)
The Tribes have always vehemently protested the origin of the FIPP as a project of the Reclamation Service (now Bureau of Reclamation) on Indian lands. Beginning with the 1902 Reclamation Act, dozens of irrigation projects were built across the western United States by the Reclamation service, including projects on Indian lands of which the Flathead Project was one.
The Reclamation origin of the project provides a number of key foundational principles that were used to fund the construction of the irrigation project, determine the conditions of repayment for project works, and integration of a power system to ensure the success of the irrigation project and assist in repayment of construction costs to the United States. They are as follows:
- The Reclamation Service was authorized by Congress to construct irrigation and power projects across the west, including several on Indian Reservations. Between 1902 and 1910, Congress authorized the Reclamation Service to construct 24 irrigation project across the western United States, and the Flathead Project was one of them. The Ninth Annual Report of the Reclamation Service (1909-1910) listed the Flathead Project as a project on Indian lands that was authorized through the 1908 amendments to the Flathead Allotment Act of 1904.
- The 1902 Reclamation Act provided that every irrigation project no matter where constructed would be funded by a revolving fund known and the Reclamation Fund, which was capitalized through the sales of public lands, grazing and timber leases, and water sales. The Reclamation Fund was used to construct the FIPP. The Reclamation Fund later included funding from hydropower revenues, oil and gas sales/leases, and off-shore oil and gas production. Occasionally, Congress supplemented the fund through general funds contained in the U.S. Treasury.
- Section 3 of the Reclamation Act provided that once the majority of an irrigation project construction costs were repaid, “the management and operation of such irrigation works shall pass to the owners of the lands irrigated thereby, to be maintained at their expense under such form of organization and under such rules and regulations as may be acceptable to the Secretary of the Interior” This exact same language from the Reclamation Act of 1902 was incorporated into the 1908 Amendments to the Flathead Allotment Act which authorized the construction of a reclamation project on the Flathead Indian Reservation.
This last provision is of critical significance, because it means that TODAY, since the project has been repaid, the FIPP management and operation of the project should be turned over to the landowners within the FIPP–the majority of which are non-Indians.
Another important feature of the Reclamation origin of the FIPP is the repayment of the project through power revenues derived from the power components of the project. Every Reclamation project has a power component, and every reclamation project was repaid in part through power revenue.
The CSKT’s position has been that the FIPP was always an “Indian Irrigation Project”, citing a 1909 memorandum of agreement between the Indian and Reclamation Service that Reclamation would build the projects on Indian lands. Reclamation did build those projects using its own engineers, the mechanism for funding provided by the Reclamation Fund, and meticulous reporting on these projects in annual reports of the Reclamation Service from 1902 to 1924. In 1924, , the operation and management of the FIPP was turned over to the Indian Service, which ceased producing annual reports. In only 20 years, and by 1924, 60% of the FIPP had been constructed. Using the same Reclamation Fund and repayment methods, it took the Indian Service 50 years to build the remaining 40% of the project.
The Indian Reorganization Act of 1934
The provisions of the Indian Reorganization Act of 1934, which make it inapplicable to lands within in any reclamation project (small r) on Indian lands, means that the Tribes can’t reclaim, purchase, or claim any private fee lands owned by non-Indians within the FIPP as their own. Neither can they use the CSKT Compact elements to take the water belonging to those lands, or exercise any jurisdictional control over them.
The CSKT and Compact Commission, however, by ignoring the Reclamation service origin of the FIPP, and ignoring the fact that the IRA references any small-r reclamation project on Indian lands–meaning any irrigation project on Indian lands, are able to inaccurately claim they can control the lands and take the water belonging to the FIPP.
Here is the language of the Indian Reorganization Act:
The Secretary of the Interior, if he shall find it to be in the public interest, is authorized to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened, or authorized to be opened, to sale, or any other form of disposal by Presidential proclamation, or by any of the public-land laws of the United States: Provided, however, That valid rights or claims of any persons to any lands so withdrawn existing on the date of the withdrawal shall not be affected by this Act: Provided further, That this section shall not apply to lands within any reclamation project heretofore authorized in any Indian reservation
In addition, the Tribes and the United States are prohibited from purchasing any private land within the FIPP by the provisions of the Indian Reorganization Act. So the Bonneville Power Administration(BPA)–a federal agency–cannot buy land within the irrigation project and turn it over to the Tribes because that violates federal law. Interestingly, BPA and the Tribes have been doing exactly that, and remove the land from agricultural production, create wetlands, and send the water off reservation and downstream to be sold.
The FIPP had its origin in the Reclamation Service, the Reclamation Act of 1902, and Reclamation law. It was paid for by the Reclamation Fund, and irrigator funds that repaid the project construction were deposited to the Reclamation fund within the federal treasury. Any reclamation funds that were derived from the sale of Indian lands were returned to the credit of the Indian tribe.
That the FIPP is the Flathead Indian Irrigation Project is a complete legal and historical fiction which is used in the Compact as a pretext for the theft of irrigator water rights, land, and the imposition of Tribal management over those lands.