Note: our heartfelt thanks to former Senator Verdell Jackson, an outspoken critic of the CSKT water compact for this article that will be sent out to all legislators and newspapers throughout the state.

by Verdell Jackson, Kalispell

Ten thousand water claims ready to be filed by the CSKT has been an effective threat for the proponents of the CSKT Compact which has passed the Senate. This threat and a list of things that the Compact does not do seem to be enough to convince a majority of the Senate to shred our constitution and give up state sovereignty. Other compacts provided water for the purposes of the reservations, but this compact breaches Montana’s sovereignty. Giving control and management of the water in western Montana and on the Reservation to the CSKT and federal government and taking the state based water rights away from the Flathead Irrigation project irrigators shreds both the federal and state constitutions.

Eleven counties, 330,000 citizens will have their properties lowered in value because the CSKT Compact grants in stream water rights on the main rivers. Irrigators on tributaries think they are exempt but present water law allows a senior water right holder on a main river that has been ordered to stop using water because of low flow to go up tributaries and shut down water users until his source rises above the minimum flow. Irrigation wells over 100 gallons per minute can also be shut down. These minimum flows are based on a robust river standard, not on survival of fish. Everyone ends up being affected because water becomes scarce. Irrigators, the people who grow our food and provide the largest contribution to our economy, may go out of business. However, some of the irrigators off the Reservation may be able to lease water from the Tribe for $40 an acre foot because the Compact gives the Tribe 229,000 acre feet of water out of Flathead Lake and the Flathead River which they may use for such purpose.

Off reservation water rights are a huge breach of Montana’s sovereignty because the time immemorial water abstracts are made out to the federal government in trust to the CSKT tribe. They now control the water for their benefit rather than Montana controlling it for everyone’s benefit as required by our Constitution. The federal government delegated control of non-navigable water to the states in the Desert Land Act of 1877and they have been trying unsuccessfully for several years to get it back through via congress. The Compact gives control of water in western Montana to the federal government.

No off reservation water rights on stream flows have been previously awarded in a compact or in case law in Montana or any other state. The CSKT Compact would be the first and set a precedent for other tribes. The legal basis for this breach of state sovereignty is the Hell Gate Treaty which contains language by US Commissioner Stevens. The first Tribe to use the precedent could be the Blackfoot Tribe through their 1855 Judith River Treaty which is also a Stevens Treaty with similar language. The Blackfoot nation consisting of the Piegan, Blood, Blackfoot, and Gros Ventres tribes of Indians were granted the privilege of hunting, fishing, gathering fruits and other subsistence activities in a large area, about 8 million acres, in eastern Montana. The CSKT are not included. The hunting and fishing area starts at the Main Divide of Rocky Mountains and goes east to the Muscle Shell River. Helena is at the bottom of strip of land and Great Falls at the top. The Blackfoot Compact has not been finalized yet which will give them an opportunity to go after water in their traditional aboriginal area. Actually 4 Montana tribal compacts have not been fully approved.

Specifically, the legal basis for this breach of state sovereignty cited in the Compact via the Hell Gate Treaty is Article III which does not mention water or water rights: “The exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places, in common with the citizens of the Territory…” Note that the statement “right to take fish in common with the citizens of the Territory” in not a water right. A subsistence life style was common among both Indians and the citizens of the territory 159 years ago, but now government programs and fast food restaurants take the place of self-sufficiency. However, Judges have stretched the Treaty by ruling that there is an implied obligation in the treaty to provide for the survival of fish. This was done in 1970 by the state of Montana through the Department of Fish, wildlife and Parks with state water rights (called Murphy rights) which provide for minimum flows needed for fish for the whole state. Fish were protected and state sovereignty was left intact.

Also, Article I of the Treaty makes clear that the CSKT cannot be granted off Reservation water rights based on the right to hunt and fish on their aboriginal land: CSKT “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…” Note that the words cede, relinquish and convey and the words right, title, and interest were all used to make sure everyone understood that all aboriginal rights were given up.

Article II established the Reservation: “reserved from the lands above ceded, for the use and occupation of the said confederated tribes…”

Article VIII of the Treaty actually forbids off reservations tribal rights: “The confederated tribes of Indians acknowledge their dependence upon the Government of the United States, and promise to be friendly with all citizens thereof, and pledge themselves to commit no depredations upon the property of such citizens.” Control of water with time immemorial water rights greatly degrades property values because of the risk of not having adequate water.

There are several treaties that have the Stevens language in them giving Indians access to hunting and fishing on aboriginal land. None of the tribes have been given off reservation water rights in a Compact or in court. There is no precedent. The Nez Perce Tribe’s negotiation with the state of Idaho has been held up as a negotiation that resulted in off reservation water rights. However, unlike the CSKT Compact, the Nez Perce Tribe did not get water rights. Idaho was not willing to breach their sovereignty by giving control to the Nez Perce Tribe. Idaho’s Department of Water Resources maintained control by putting 200 minimum instream flow water rights in place for “springs and fountains” with a priority date of 2007 while protecting all present uses and some future uses.