©2015 Montana Land and Water Alliance
C. Vandemoer, Chair

This is an essay on a key assumption in the compact–which is fundamental to its destruction of western Montana–that is actually hard to talk about, even worse to testify about…and have people fully grasp how fundamentally wrong this CSKT Compact is.  So if you want a quick discussion of the issues, no problem if you just choose to leave…for those of you who want to absorb this issue, grab your favorite beverage and join me for a bit.

As a long-time practitioner in the field of federal reserved water rights on Indian reservations, I am still shocked that the blatant fundamental errors made in the first few pages of the Compact evaded all scrutiny or common-sense thinking on the part of the bill sponsor, the Compact Commission, Governor,  and Attorney General.  And a host of other characters.

And my experience also tells me that these flaws and language were intentional, the evasion of scrutiny purposeful, and the entire document constructed to hide these flaws found in the first few pages of SB262.  The flaws were hidden in plain site.

The First Clause of Article I of CSKT Compact

The primary flaw in the compact can be found on page one, and it is the first recital  of Article I of the Compact:

WHEREAS, pursuant to the Hellgate Treaty of 1855 12 Stat.975, the Confederated Salish and Kootenai Tribes reserved the Flathead Indian Reservation,

Emphasis added.

That the Tribes reserved the Flathead Indian Reservation by themselves is a legal and historical myth: the only government in 1855 that had the power to reserve anything in its own territory was the United States. Even the sentence itself is internally inconsistent, that is: pursuant to a federal (United States) statute (Hellgate Treaty), the Tribes reserved the Flathead Indian Reservation”…as if the United States had nothing to do with it.

Let’s look at the legal and historical facts of federal reserved water rights.  There is a reason why they are called “federal reserved” rights…it is because when the federal government reserved a piece of land, including Indian reservations, the reservation also implied a reservation of  enough water to fulfill the purposes of the reservation.  That is the Winters Doctrine and the water rights are correspondingly federal reserved water rights.

The significance of this historically and legally inaccurate recital in the Compact is stunning: it sets the stage for the large-scale transfer of state water resources to the CSKT/U.S. on and off reservation in the CSKT Compact   Here is how it is done:

  • No limits on the quantity of water claimed by the CSKT.  Because the federal government’s reservation of the FIR is not recognized, the rules that guide the quantification of federal reserved water rights were NOT followed in the CSKT compact.  For example, the measure of a federal reserved right is the volume of  water to fulfill the purposes of the reservation.  Instead of quantifying this volume of water, the compact placed no limits on the extent of the CSKT water rights claims on the reservation, and for the first time, the compact allowed off-reservation water claims not linked to the purpose of the reservation.
  • Claims for All Water on the Reservation. Based on the fiction that the Tribes reserved the reservation, then,  the CSKT claim that they reserved all the water on the reservation”–and like the above, there are no limits on the amount of water the Tribes claimed.  They did claim all the surface and ground water on and near the Flathead Reservationl–just look in the abstracts.
  • Claim right to manage and regulate all water users. Because the Tribe reserved the reservation, and reserved all the water, then it has the right to use the Flathead Irrigation Project water irrigators’ water for its own purposes

These are wholly unsupported claims made in the CSKT Compact that are derived from the first recital, duping Montana entirely.

Federal reserved rights apply to all land reserved by the federal government, including Indian reservations. Montana has 17 federal reserved water rights compacts with at least three federal agencies and six tribes.  Every single Compact except the CSKT Compact acknowledges and recites the federal reservation of land for the (forest, national park, Indian reservation) in its first recitals in the Compact.

The fundamental flaw here is that the compact rewrites the history and law of treaties and related federal reserved water rights doctrine. And of course,  neither the Tribes, the state, or the federal government can re-define a federal reserved water right just by signing a political document–the compact.

The faulty assumption that the Tribes reserved their own land and not the United States leads to the rest of the theft of water perpetuated on Montana citizens through this compact,and made effective through the definition of the reservation, the organization of the CITT, the unitary management ordinance, and the off-reservation water rights claims that turn a treaty access right to a water right.

Second Clause, Article I, CSKT Compact

The second clause in Article I of the Compact reinforces how the first clause–the Tribes reserving land and not the United States–paves the way for the over-reaching water claims of the Compact:

WHEREAS, the Confederated Salish and Kootenai Tribes claim aboriginal water rights and pursuant to said Treaty, reserved rights to fulfill the purpose of the Treaty and Reservation

Here again, the Tribes instead of the United States claim the water rights in whatever way they want to define them,  unrestricted by the definition of a federal reserved water right:

  • “..aboriginal water rights pursuant to said Treaty”.  The Treaty did not grant “aboriginal water rights” to the Tribes, it granted them an access right to aboriginal lands whose title, right, and interest in was ceded to the United States; by definition in this compact, aboriginal water rights are not federal reserved water rights
  • “…reserved rights to fulfill the purpose of the Treaty“.  Federal reserved rights apply only to the purpose of the reservation, but since the Tribes believe they reserved the reservation, then “reserved rights” means “tribal reserved rights”, which do not legally exist at this time.  For an Indian reservation, only federal reserved water rights do.

So based on the legal and historical fiction that the CSKT reserved the Flathead Indian Reservation by themselves, the Tribes claim ownership of all the water on the reservation including that in a federal irrigation project legally built for everyone, not just the Tribes; retained actual water rights instead of access rights to lands they ceded to the United States; and have the full authority, absent the United States, to regulate state law-based water rights users.

In other words, the ownership of all the water, the attack on the Flathead Irrigation Project water,  the sole management authority claimed in the Unitary Management Ordinance/Board, and the CITT (Compact Implementation Technical Team) all stem from this first historically and legally inaccurate first recital of the CSKT Compact.

If page one of a 1,500 page document contains such a glaring, historically and legally inaccurate statement, can you imagine what we found in the rest of the document? 😯

Summary

If the Compact gets to Congress, it is highly likely that these flawed assumptions will be noticed..but will they be acted on by Congress?  These faulty assumptions should be stricken despite the probable efforts of the State and Tribes to remove or hide the language.

In itself, the correction of that language will automatically lead to a reduction in the amount of water given to the Tribes both on and off reservation because without those flawed assumptions, the volume of water claimed in the compact is completely unjustified.  Striking that first recital in the Compact may also strictly limit the scope of any jurisdiction the Tribes may claim or the state may give up in this Compact.

 

 

 

 

 

 

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