By Senator Jedediah Hinkle
Note: our thanks to Senator Jedediah Hinkle for this article in today’s Missoulian explaining why SB262 should not be passed in the legislature.
After significant review of the proposed Confederated Salish and Kootenai Tribes Water Compact and my own questioning process, here is what I have discovered.
In my question of legal counsel supporting the compact, it was made clear that the water rights of non-Indian land owners on the reservation are currently not tribal water rights, and are not federal water rights, but are individual landowner water rights granted through deeds and land conveyances generations ago. If this compact passes, these individual water rights will become tribal water rights “held in trust by the federal government.”
The compact would establish off-reservation water rights for the tribes. Proponents assure us that the federal government will not have rights over this off-reservation water. But their claim looks to be false. The “Federal Indian Trust Responsibility Doctrine” is a legal obligation, in which the United States “has charged itself with moral obligations of the highest responsibility” toward Indian tribes. (Seminole Nation vs. US 1942, discussed by John Marshall in Cherokee Nation v. Georgia).
According to the Bureau of Indian Affairs, “The Federal Indian trust responsibility is also a legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets and resources, as well as a duty to carry out the mandates of federal law with respect to American Indian and Alaska Native tribes and villages” (BIA website).
Therefore, if off-reservation water rights and co-ownership of Montana’s rivers are granted to the tribes, they become an asset and a resource of the tribes—that the federal government has a fiduciary responsibility to protect. There are areas of the compact that make specific references to the Bureau of Indian Affairs having jurisdiction.
I do not believe it is in the best interest of this state to grant federal jurisdiction over the water of Montana that belongs to the people of Montana, protected by Article 9 of the Montana Constitution.
Lastly, the tribes threaten that if they do not get their way with every letter of this proposed compact, they will file 10,000 other water rights all across the state, costing millions in litigation fees. All so that they can fish? Really?
I ask the tribes: How many of these major rivers and streams have actually been dewatered to the point of a fish kill? I don’t know of any. Are you prevented from fishing now?
The language of the Hellgate Treaty grants the tribes the right to hunt, fish and gather off-reservation in common with the citizens of the territory (non-Indian people). Language in the same treaty solidifies that the tribes agreed to cede, relinquish and convey their territorial right and title to all non-reserved land.
The tribes are currently legally able to fish and hunt off-reservation. Why should the opportunity to fish translate in to an actual property right in the form of a water right? If the Hellgate Treaty grants a water right because it allow the Tribes to fish, does the treaty also grant a private property right over land because it allows them to hunt and gather berries? I believe this compact establishes a president that is contrary to one that protects private property rights.
This proposed CSKT Water Compact is over 1,000 pages, highly technical and difficult to understand. I could not vote to pass this permanent legislation—just to find out later what is in it and if it is good or bad.
Sen. Jedediah Hinkle, R-Bozeman, represents Senate District 32 in the Montana Legislature.