©2015 Concerned Citizens of Western Montana

When we talked about the “perfect storm” hitting Montana with the CSKT we are referring to the combined intent, effects and potential impacts of:

  • The CSKT Compact
  • The Tribes federal action (recently dismissed)
  • The acquisition of Kerr Dam

All of these actions were initiated at different times, but all have come to fruition since 2013 and seem to be culminating now, in 2015. If you think these weren’t strategically planned or are related, think again…we are, after all, dealing with the most precious of the precious resources: water.  And don’t forget the actors: a very ambitious and litigious Tribe, a gullible collaborator in the state, and a powerful supporter in United States.

Although the Compact has dominated the headlines, by far the clearest indicator of where the Tribes are going with their actions (compact, lawsuits, land acquisitions, etc) was illustrated in the CSKT federal lawsuit “against everyone” filed on February 17, 2014.  The Tribes lawsuit for the first time exposed the rationale for and meaning behind the Compact, as well as the Compact’s role in achieving the ultimate broader goals of the CSKT.

The Tribes portrayed the lawsuit as “narrowly tailored”, but the federal judge dismissing the case disagreed:

“The Tribes’ declaratory claim, by which they purport to seek a “ruling only on the ownership of FIIP water” (Doc. 63 at 11 n.3. ), actually contains eleven separate elements. The Tribes ask the Court to “reaffirm[] and declar[ e] that:”

1. the Hellgate Treaty did not implicitly diminish aboriginal water rights;

2. when the FIR was created the United States reserved all waters on, under and flowing through the Reservation for the Tribes;

3. the chain of title to land on the FIR has never been broken and for that reason no lands within the borders of the FIR have ever been part of the public domain or subject to general public land laws;

4. after the FIR was created the Tribes continued their exclusive and uninterrupted use and occupation of Reservation lands and waters for hunting, fishing and gathering practices. Tribal water rights for non consumptive aboriginal uses carry a priority date of”time immemorial.”

5. all waters of the FIR for consumptive use were reserved by the Tribes pursuant to the Winters Doctrine. The priority date for Tribal and individual Indian consumptive water use is July16, 1855;

6. water rights on the Flathead Indian Reservation could only be acquired as specified by Congress;

7. Congress specified the only manner for any non-Indian to acquire a water right on the FHP in the Acts of 1908, 1912, 1914 and 1926, addressed above, and that those conditions have not been met by any person;

8. the [Secretary of the Interior] has issued no person a “final certificate of water right” under the FAA;

9. the 1904 [Flathead Allotment Act] implicitly reserved to the United States out of the senior pervasive Tribal Winters rights a volume of irrigation water to serve the federal purpose of the FHP, with a priority date of April 23, 1904;

10. as a matter of federal law the [Bureau of Indian Affairs] is entitled to a volume of irrigation water adequate to maintain beneficial irrigation in the FHP service area when such volumes of irrigation water are physically available within the FIR and do not adversely impact the Tribes’ “time immemorial” instream flow rights; and

11. FHP has always been a [Bureau of Indian Affairs]Indian irrigation project and not a Bureau of  Reclamation irrigation project.

Without going into detail, these eleven points are completely without merit and generally untrue historically and legally.

If you think about the implications of what the Tribe is asking in its lawsuit, you can see the terror of the long-term goal, which is to completely rewrite history and reclaim all reservation land to its pre-1855 environment.  Not only would this have affected all of Montana, but the implications for the western states are very troubling.

As a side note, remember the United States, initially sued as part of the CSKT action, threatened to change sides last July, and then kept asking for an extension or stay of proceedings.  Their latest request was to stay proceedings until June 3, which is now of course moot.

Importantly, Judge Christianson saw and called out the Tribes’ attempt to get a favorable advisory opinion from a federal court to use in state court proceedings and in Congress no matter the outcome of the Compact.

the Court’s discretion in order to determine whether to assume jurisdiction depends on whether the declaratory action is being sought merely for the purposes of procedural fencing or to obtain a “res judicata” advantage;  or whether the use of a declaratory action will result in entanglement between the federal and state court systems.” (page 18, Judge’s order)

Procedural fencing it is.  But, the Tribes will be back, especially if the Compact vote is ruled void.

The Tribes attorney dismissed the dismissal as “good news” for the Tribes and not a loss.  However, those of us who live here know that the Tribes’ attorneys would like nothing better than to take this case and the Compact and ride them both up to the Supreme Court, avoiding the state court. They still can, although the timing may be dependent on other factors.

Our hope was that the lawsuit would be dismissed with prejudice, but know that these issues eventually will get to the U.S.Supreme Court.  Underscoring again the importance of developing that strength in all of the legal defenses against the Tribe for the next time this comes up, which is likely sooner rather than later.

All of this said, it is a relief that this action was dismissed.  And, sleep with one eye open for a while…