©2016 Montana Land and Water Alliance
As the unconstitutionally-passed CSKT Compact makes its way to the Montana Supreme Court for a review of the lower court ruling on severability, it is important to review just what was planned for Montana if the CSKT Compact had passed.
One of the major mistruths perpetuated by the elected and non-elected CSKT Compact proponents is the statement that Indian Tribes are “sovereign nations” in the same sense that the United States and the States are sovereign entities. A history of federal Indian policy, our Constitution, and case law prove definitively that in our system there are but two sovereigns—the States and the United States. What is different about Tribes is that Congress—which has plenary power over Indian affairs, allows the tribes to be self-governing entities but not entities that govern others.
Thus the Compact’s “Unitary Management Ordinance” or “Law of Administration” is patently not viable because the Tribes do not have that authority as prescribed by Congress and are not a ‘sovereign nation’ independent of the United States. The state, exceeding its constitutional authority, gave that power to the CSKT through “negotiation”, whereas Congress and the President never have. The federal government also exceeded its constitutional authority in permitting negotiators to get this far.
I don’t believe anyone can give this power to another entity. This power is reserved to the Federal Government and the States by the Constitution. Only a revision to the Constitution would allow this and that would take 3/4ths of the States to approve that revision. Montana would also have to revise its constitution to permit this jurisdiction.
The political notion that was turned into supposedly “legal doctrine” was a romantic, sympathetic, and essentially respectful view towards the Tribes, which was transformed into “Indian Tribes as sovereign nations” that had control over all citizens just like the States and United States. That there cannot be three sovereigns in the United States is indicated by the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Indian Reservation vs. Indian Country
In the compact, the Flathead Indian Reservation was defined as “Indian Country” instead of “Indian Reservation”. The term “Indian Country” is actually derived from U.S. Code (18 USC § 1151) and involves criminal matters such as child abuse, gaming revenue, theft from tribal organizations and other issues, but not land or water. As used in the Compact, this definition of the Flathead Reservation includes all lands, rights of way, notwithstanding (in spite of) existing land patents. In other words, everyone’s private land comes under the criminal jurisdiction of the Tribes in the compact using this definition of the Flathead Indian Reservation.
On the contrary, “Indian Reservation” according to Montana and federal law means the “lands within a reservation that are owned by the United States in trust for the tribe.” In the case of the CSKT, that would include about 650,000 acres of the 1.2 million acre “reservation”. The rest is owned as private property 100% subject to state taxation and all state laws.
The political concept that was advanced was simply an acknowledgement of Tribes having been here in Montana before others, as in “all of Montana was Indian country at one time”. No one disagrees with that. But the adoption of one definition of the Flathead Indian Reservation that improperly expands a political notion to the resolution of the federal reserved water rights of a Tribe is a major fatal flaw in the compact’s “reasoning”.
Constitution, Laws, and Treaties on Equal Footing
How often have you heard the phrase that “treaties are the highest law of the land”? And then been made to feel that whatever the Treaty says, even if it overrides state law and common sense, is the only law that applies? But Article VI of the Constitution says “this constitution and the Laws of the United States which shall be made in pursuance thereof and all the treaties made, or which shall be made shall be the supreme Law of the Land”. All three have equal footing—all are the “supreme law of the land”.
Note that a state has no power to make or reinterpret a Treaty, or to pass a law that violates its own constitution or laws of the United States. The state’s political notion of basically returning ceded lands back to the Tribes was somehow changed into a “legal fiction” that the Tribes had off-reservation water rights. Thus the state’s reinterpretation of the Hellgate Treaty to state that an off-reservation access right to fish is automatically a water right is flatly unconstitutional. In the face of clear legal uncertainty of this notion, the state advanced the unsubstantiated political concept that the “courts would rule in favor of the Tribes” every time.
There is no “Fix” to the CSKT Compact
The information above presents only a few of the extremely serious flaws with the CSKT Compact and prove that even if the legislature were to remove the immunity language, the fundamental political-notions-turned –legal-doctrine problems with the CSKT Compact will not be resolved. It was negotiated on false premises to begin with and promoted with absolute bias in favor of the CSKT to the detriment of Montana citizens.
Equally important to note is that the CSKT Compact is the only compact in Montana where these excesses appear.
It’s time for all of these water rights to be resolved in Montana’s General Stream Adjudication. Then everyone is on a level playing field , rules apply, and the state will have to protect its citizens instead of siding with an adverse party.