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©2015 Montana Land and Water Alliance

Malfeasance: the performance by a public official of an act that is legally unjustified, harmful, or contrary to law; wrongdoing (used especially of an act in violation of a public trust).

Underneath the many layers of the CSKT Compact lies a whole other realm of wrong-doing done to all, not just Indians, by the federal government.  This applies particularly to the Bureau of Reclamation, Bureau of Indian Affairs, and the Secretary of Interior (multiple) over decades and is on-going to this day.

This is a very long story, with much information available if you are willing to do some research, but only a sketch or two will be presented in these pages as it is the subject of ongoing research.

The details of this malfeasance are deep, and go directly to

  • the construction of the Flathead Irrigation and Power Project using and repayment to the Reclamation Fund;
  • Kerr Dam issues including the generation and disposition of power and power revenue, some of which has also been returned to the Reclamation Fund since 1938
  • the location and release of the liens on private lands required when the FIPP was repaid in 2003 (the liens are not held by the BIA)
  • misuse of federal funds
  • regional use of Flathead Basin waters

Each of these topics–and there are many more–could generate mounds of topics, materials to review, and multiple avenues of research.  And, they are all related in some gigantic puzzle that many are unraveling. A conservative estimate of the money involved in the malfeasance cited above is in the hundreds of millions of dollars.  These are the funds that could be used to rehabilitate the irrigation project, not the state of Montana’s.

One of the effects of the CSKT Compact will be to sweep all of this federal malfeasance under the rug and make it difficult to unravel.  For example, if the Tribes own all the water in the federal irrigation project, why release the liens on the lands those people paid for and developed?  In the Compact, the Tribes are just about given the entire irrigation project itself, a project that somebody else paid for.  The federal government gets to hide behind the so called settlement of Indian water rights to avoid its obligations in the public trust arena.

Didn’t anyone ever wonder why the federal government was so “quiet” during all the negotiations?   Its because it has a conflict of interest and duty:  a duty is owed to the settlers it invited out here and promised an irrigation project–aka the public trust doctrine. With the state so willing to give up everything to the Tribe/United States, there was no need to worry about the public trust doctrine because the state didn’t care and wasn’t doing its job.  A duty is also owed to Indians, the Indian trust doctrine.  Again, the state was so willing to agree that the Indian trust doctrine took higher priority in this negotiation than the public trust doctrine that the federal government let the state do its job.

The conflict of interest is that the BIA has evolved into an “Indians only” organization with a singular focus on Tribes, and is more often than not controlled by the Tribes.  So the BIA cannot properly represent “the irrigators” and it was probably intentional wrong of the entire negotiation not to include, on the federal side, appropriate and additional Interior representation for the irrigation community.

It seems that rather than resolve the conflict between its  public trust and Indian trust responsibilities, the federal government would rather have citizens fighting each other and their state government, while the “other hand” is doing something else.

Lawless is as lawless does.