© 2015 Concerned Citizens of Western Montana
Appendix 4 of the CSKT water compact lays out the framework for the Unitary Management Ordinance, aka “The Grand Bargain.” In 2012, Chris Tweeten explained it in very simple terms:
“Jay (Weiner) talked about push back 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.”
Source: Transcript of Compact Commission Meeting in Helena August 2012
Let that ring loud and clear: the ratification of this compact with the UMO included in it will “subject or 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.”
In other words, Montana Water Law will no longer apply to anyone living within the historical boundaries of the reservation.
Don’t believe it?
The Unitary Management Ordinance found in Appendix 4 of the CSKT Water Compact says the following:
Upon the Effective Date of the Compact, this Ordinance shall govern all water rights, whether derived from tribal, state or federal law, and shall control all aspects of water use, including all permitting of new uses, changes of existing uses, enforcement of water right calls and all aspects of enforcement within the exterior boundaries of the Flathead Indian Reservation. Any provision of Title 85, MCA, that is inconsistent with this Law of Administration is not applicable within the Reservation.
Source: Unitary Management Ordinance (Page 5) 1-1-101 4.
SO WHAT ABOUT EQUAL PROTECTION UNDER THE LAW?
At the hearing for Representative Bob Brown’s HB427, asking legislators to set aside the funds necessary to assist with the claims review process should the tribe follow through with their threat of 10,000 claims, John Carter made the perfect case against the Unitary Management Ordinance. One of his many criticisms of the bill included the following statement:
John Carter: The third point that I will make is the destructive nature of this piece of legislation. It clearly treats water rights claimants dis-equally. In 1985 the Montana Supreme Court issued a case called State Ex. Rel. Greely v. Confederated Salish and Kootenai Tribes. In that case the tribes sought to challenge the application of the Montana Water Use Act on the Flathead Indian Reservation. The court spent, and it’s a wonderful opinion by the way for anyone who really wants to read up on Indian reserved, and in particular the Salish Kootenai tribe’s reserved and aboriginal water rights. It just lays out a roadmap for the litigation that would come if the compact does not. But in any event, what the court said in 1985, was that the water use act is adequate on its face. That means as it reads, it’s okay. What the court explicitly did not rule on, and held off ruling on, was whether or not the Water Use Act was adequate as applied. And this bill would fall squarely into that adequacy as applied because you are treating water rights claimants dis-equally, and the Montana Supreme Court is profoundly clear in Greely that water rights claimants, regardless of who they are have to be treated equally across the board. So I just think this bill has sufficient flaws that it should probably not come out of committee.
So if Mr. Carter and the Montana Supreme court don’t like the idea of unequal treatment under the law for water claimants, exactly what does Mr. Carter think that the CSKT Compact proposes to do?
The Unitary Management Ordinance removes a class of citizens out from under the protection of state law, so why isn’t that also a violation of equal treatment under the law?
If the Montana legislature passes the compact before others in western Montana have gone through the adjudication process, won’t it place those claimants at a clear disadvantage to the CSKT who will already have been awarded vast amounts of water in the compact?
Keep in mind, the compact proposes give the CSKT time immemorial water rights to nearly all of the water in western Montana and bare legal title to 100% of the water in the Flathead Irrigation Project.
How will anyone be able to defend their water claims against a compact that has already been ratified by the legislature?
THE UMO VIOLATES THE CONSTITUTION
Article IX Section 3 of the Montana Constitution states that “the legislature shall provide for the administration, control and regulation of water rights.”
As the Compact Commission and their attorneys have said, none of these constitutional provisions specifies what sovereign has to perform the commanded function. If legislators carve 23,000 citizens out from under the protection and jurisdiction of the state for their water, what is next?
Will it be our schools?
Article X Section 1 of the Montana Constitution states that “the legislature shall provide a system of free quality public elementary and secondary schools.”
Will it be our system of local governance?
Article XI Section 3 of the Montana Constitution states that “the legislature shall provide methods for governing local government units….”
Will it be agriculture?
Article XII Section 1 of the Montana Constitution states that “the legislature shall provide for a department of Agriculture and enact laws and provide appropriations to protect, enhance, and develop all agriculture.”
Let’s make this simple for everyone.
The Unitary Management Ordinance violates the equal protection and due process guarantees of both the United States and the Montana Constitutions. If legislators choose to ratify the CSKT compact with the Unitary Management Ordinance included, they are violating their oath of office which also is included in the Montana Constitution. That oath says:
“I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).”
The hypocrisy on display concerning this compact is really quite stunning. One thing we can be certain of is that the UMO accomplishes the tribe’s goal of removing the Montana Water Use Act from applying on the reservation just as Mr. Carter explained they tried to do in the 1985 Greely case.
The other thing we are certain of is that the governor, the attorney general, the compact commission and their attorneys, and legislators such as Dan Salomon and Chas Vincent, are more than happy to cede state sovereignty and jurisdiction to the CSKT.
What about other legislators? Where will they stand on this issue? Will they unknowingly fall for the tribe’s goal of removing state jurisdiction on the reservation thereby fulfilling a decades old agenda of the CSKT?