©2015 Montana Land and Water Alliance
On June 15 and 30, 2015 respectively, the CSKT and the United States filed claims for federal reserved water rights and “aboriginal water rights” in the Montana General Stream Adjudication. While the media reported the first set of some 2,800 claims, not a whisper was heard regarding the United State’s claims for 7,500 additional claims throughbout Montana.
While the “threat” of 10,000 claims was used by the Compact Commission and various other compact supporters to threaten Montanans to support the Compact, and proponents cried to the legislators to keep them out of that litigation, there was really never any intention of the Tribes’ dropping their aboriginal claims in eastern Montana if the Compact was passed, and even if Congress approves the Compact.
The Tribes’ claims are presented in two (2) maps, one labeled “Basins In Compact” and “Basins With Claims”. The first map shows that all of western Montana is included in the Compact, and the second shows extensive claims extending into eastern Montana. The Tribes and United States have said in court proceedings that if Congress approves the Compact as is, they will drop those claims east of the Continental Divide.
But what does the Compact actually say?
Under Article V of the Compact (SB 262), Disclaimers and Reservation of Rights, section (B), General Disclaimers, the Compact states the following:
Nothing in this Compact shall be construed or interpreted to:
(5) preclude the possession, acquisition or exercise of Water Rights Arising Under State Law by the Tribes or Allotees or members of the Tribes
(14) to limit or prohibit the Tribes, their members or Allotees, or limit the United States in any capacity from objecting in any general stream adjudication in the Montana Water Court to any claims to water rights on or off the Flathead Indian Reservation.
So technically, even if the Compact passes the Montana legislature and Congress, and notwithstanding any pledge to “drop” the eastern Montana claims, the Tribes and the United States still have the right to both go after state-based water rights on and off the reservation, and to object to those water rights in the general stream adjudication including all those areas listed in the misnamed “no compact” map. This is the water in Eastern Montana.
It appears that the Compact, intended to be “final”, never will be a final settlement of the CSKT or any other Tribal water compacts in Montana.
An uneasy question arises: how secure are land titles in Montana, where even title companies disclaim that they are responsible for selling you property in light of aboriginal tribal water rights? Are the CSKT disclaimers being put on other water rights permits across the state?
Laying the Foundation for Legal Challenges to Aboriginal Water Rights, CSKT Eastern Montana Claims, Time Immemorial Priority Dates, and Federal Expansion
Not lost on the MLWA is that the state of Montana and its legislators were warned about the illegality and unconstitutionality of the Compact by the thousands of people who have commented, testified, and written about this issue since 2013.
The MLWA attorneys, in a series of seven memos, discussed only a few of the legal and constitutional problems with the compact. In particular, the 10000 Claims Memo shows that the CSKT claims for water rights off reservation in both eastern and western Montana are historically and legally unfounded based upon the Treaty of Hellgate, existing US Supreme Court case law, and history. No water rights were reserved for the Tribe to accompany their right to take fish in usual and accustomed places off the reservation in western Montana. Legislators on the House Judiciary Committee also easily dismantled the Tribes’ and Compact Commission arguments that any water claim existed east of the Continental Divide.
As to the warning to state officials, they of course responded that they knew about these problems with the compact, but it would be too expensive for Montanans to litigate, so they felt no need to fix anything. Well, newsflash: what kind of Montanan would allow the taking of their property rights without a fight?
No Need to Wait For Congress
In the broadest sense, once a decision is made in the FJBC v. State case, and if it is unfavorable to Montanans, litigation on the Compact will begin. In other words, there is no need to wait for Congressional or agency review before legal action can be taken against, at the very least, the State of Montana.
Issues regarding equal protection, failure to conduct environmental studies, violation of Montana’s constitution, granting jurisdiction to a Tribe which has no legal right, wasting taxpayer money, and violation of federal laws regarding federal reserved water rights are just a few of the issues that are ripe for litigation.
It is also very clear why we won’t wait. If the state of Montana was given all the evidence of unconstitutionality and illegality of this Compact and they ignored it, do you think Congress will be any different?
Western Montana Water Rights 
Treaty of Hellgate; Article III: (see below) “…………in common with…………….”. Meaning: in general, together, undivided, without preference or deference to any common party.
This is the extent of the Tribes’ off reservation rights relating to water, period.
“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 citizens of the Territory,……..”
Completely agree, documented extensively, and this view is 100% legally supported. This fight will go to the US supreme court
You do understand what the word “exclusive” means, don’t you? You are focused on the words “in common” and disregarding the words “exclusive right.” What this clause is saying is that the right secured to “said Indians” extends beyond the boundaries of the reservation and onto lands held “in common with citizens of the territory.” Remember that the Tribes were not yet citizens at this time.
A little historical context goes a long ways in deciphering the truth.
“Exclusive” right only applied to the reservation. And when congress opened up the reservation, like it was allowed to in ARTICLE VI OF THE HELLGATE TREATY, it was not exclusive any more. The CSKT were paid $22 million by the Indian claims commission and the court of claims for this supposed “violation” of the treaty.
“In common with the citizens of the territory” means exactly that. We get to fish, hunt and gather too on the land the Tribes ceded to the United States, willingly, for $12 million. You get the access to usual and accustomed places as well.
What did tribal “leadership” do with the money, and the other multi-million dollar settlements?
And, no- this is by no means the entire extent of the Tribes’ claim to water. Besides treaty claims we also have federal reserve water claims, and aboriginal water claims.
The Tribes filed all their claims and were required to by law at the end of June 2015 There are no more to file, and we know the tribes can’t legally support the claims they’ve filed now. They needed a lot of assistancefrom a complicit state, gobs of federal (taxpayer) and corporate money, blah blah blah. The Tribes left themselves an open door in the compact to keep trying, but it will be closed. The federal government will use somebody else to get what they want. These claims will be dismissed in court, if not by Congress first. After all, they are going to ask why 5,000 people need all the water in Montana, when the Treaty and Winter’s doctrine and lots of supporting law say otherwise.
The essential ingredients for tyranny. Imagine you come to a police checkpoint (assuming them to be “lawful”, while asserting them to perhaps be “legal”).
If you do not stop, they have told everyone, “you will be stopped, dragged from your vehicle, thrown onto the hood, and handcuffed, then dragged off to jail and fined, without a trial”.
So, you stop. They then proceed (not racial profiling or any other paranoid fantasy of any group) to “drag you from your vehicle, throw you on the hood, handcuff you, drag you off to jail and fine you, without a trial”
This is essentially what the CSKT water compact PARTIES have done, by filing the 10k-plus water claims they SWORE to us (with fingers crossed) they would NOT do if only the Legislature would pass SB262. So SB262 was passed, and what did the lying Indians and their masters in the US Government do? They filed all the claims anyway.
So what, the claims are specious and without merit. If they want to waste their time, talent, resources and integrity by reneging on the deal, let them.
If we had a strong AG in Montana, all of their claims both in western and eastern Montana would be dismissed with one motion for summary judgment. And then based on the law they would be easily dismissed so no one individual would have to fight it alone. And, the ground work has been laid for these claims to be dismissed that way.
And…we’re in Montana where the executive wants this so bad they are willing to do anything to get it, and our courts have a reputation, as well as the 9th circuit. Ergo, any preparation should plan on heading to SCOTUS where they will not overturn more than 100 years of established doctrine involving the development of the entire western US. And by the time we get there, every western state will join us against this compact and actions of the state of montana.
Every affected property owner in the State of Montana has a case in inverse condemnation for decrease in property value against the Tribes, the federal government and the State of Montana due to the filings. Montana, by failing to protect the property of its citizens, volunteered to be a defendant in such a class action suit.
By filing 10K claims, they made the case financially worthwhile for a firm specializing in class action to be interested.
Wait, one will step forth.
My thinking exactly. Timing is key.
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