© 2017 Concerned Citizens of Western Montana
Once again, we would like to shine light on an obvious and notable trend concerning the CSKT water compact and the flawed processes that have brought us to where we are today.
Twenty to thirty years ago Montana loudly pronounced that the demands of the CSKT for ownership and management of all reservation water, and for off reservation water, were non-starters. State officials said as much in the numerous newspaper articles of the day.
By all appearances, the 1990’s Montana understood its responsibility to protect its citizens from overreach of the federal government with respect to its very important and valuable water resources. People read these articles and were led to believe that the state was diligently working for a fair and reasonable agreement, and as such, they stepped back and allowed the state to do its job.
Unfortunately with the election of Brian Schweitzer as governor, and unbeknownst to the public, a huge policy shift began to take foothold in the state, and it has grown like cancer. One part of the shift, was a new and improved 2010 Montana that quietly caved in to the tribes’ “non-negotiable” demands, giving the citizens of western Montana no hope for a reasonable settlement.
While ceding to the US / CSKT demands may have taken a decade or two, it didn’t take long for the state to then turn its attention to rationalizing their capitulation and pulling out all the stops necessary to sell it to the citizens of the state of Montana. Attorneys and other “experts” were hired for the purpose of creating a false narrative that the state had no choice but to accept the cession of its ownership and sovereignty over water. After all the CSKT are a Steven’s Treaty tribe and their situation is unlike all others (not).
Most of us were none the wiser. After all, we thought the 1990’s Montana was still in the drivers seat.
A similar scenario played out with the Flathead Joint Board of Control for the Flathead Irrigation Project. The 1993 Alan Mikkelsen, executive director of the FJBC wrote this editorial in a local newspaper:
Tribal power grab threatens basic constitutional rights
BY ALAN MIKKELSEN
The Flathead Indian Reservation is once again embroiled in controversy over the another claim by the Confederated Salish and Kootenai Tribes that they have jurisdiction and regulatory authority over non-tribal member’s activities on privately owned land. The tribes are now attempting to gain authority to be treated as a state government in order to develop water quality standards and a water quality permitting process on the reservation.
To the uninformed, this may be most logical and understandable. After all, aren’t we talking about an Indian reservation here? Surprisingly the answer to that question from the Supreme Court of the United States is no. On June 14, the Supreme Court issued its latest and most important decision (South Dakota vs. Bourland) in a modern trilogy of cases involving tribal civil jurisdiction over non-members. In the Bourland case, Montana vs. United States (1982) and Brendale vs. Yakima Nation (1989), the court has spoken directly to the issue of whether Indian tribes have any civil jurisdiction over non-Indian activities on private, fee-owned land.
In all three decisions, involving hunting, fishing, and land and water resources, the court has clearly stated that the affected tribes do not possess such power. On the Flathead Reservation, however, the Confederated Salish and Kootenai Tribes continue to grasp for power, ignoring such decisions. This incessant grasping for power by the tribes thus provokes the reservation population (18,000 non-Indians, 3,000 Indians), who simply do not want to be subjected to a government in which they have not right of participation. (The vast majority of land located on the valley floors of the reservation is privately owned by non-Indians.) Given the rulings from the Supreme Court, an 85% non-Indian population, a huge amount of privately owned land and an aggressive tribal government, conflict is nearly inevitable.
Land use and water use regulation involves the most fundamental principles on which the U.S. Constitution rests and which the Montana Constitution accords even greater protection. It involves not only the exercise of police power, but also affects property rights, civil rights and political rights. Some people view these rights and the arguments aimed at protecting them as merely a cloak for what are racist views. This is an easy charge to make, and an extremely difficult charge to disprove, and it is extremely unfair to force people to be put to this test.
It is undoubtedly true that some people do have racist motivations for their opposition to the tribal government’s control. They are few in number. It is also true, however, that even these odious people enjoy all the protections our laws provide. Among the most basic and fundamental of these protections are those involving property rights, political rights and civil rights. This is a legal fact applicable to all – no matter what their motivation. Any implication that opposition to tribal controls is rooted in racism is to be expressly rejected. These are fundamental principles involved in this debate that are enshrined in our Constitution. The legitimate opposition to tribal authority over non-member fee land, which includes the majority of reservation residents, will not accept capitulation to the tribes’ incessant and (under the controlling federal law) extreme demands for power over their lives as the proper means to avert a conflict.
The Flathead Reservation is a homeland of the Indian people. Although many tribal advocates will refuse to acknowledge it, this area is also a homeland for non-Indian people. Whether you were born here or moved here, if you have an emotional, cultural, or ancestral attachment to this area, it is your homeland. That it may be a tragedy to Indian people that this now a shared homeland cannot be debated. However, the wrongs that were visited upon the Indian people yesterday cannot be corrected by visiting more wrongs on the non-Indian people today. Until an acknowledgement is made of the need for self-rule for all people, non-Indian as well as Indian, the situation here will only continue to drift into greater conflict and extremism from elements of both sides.
The state of Montana needs to maintain a strong presence on the Flathead Reservation, in order to assure that the rights on non-tribal members to participate in the government that controls their activities be preserved.
This article clearly shows that the 1993 Alan Mikkelsen understood the issues here on the reservation, and the constitutional conflicts they presented. It was this 1993 Mikkelsen that irrigators believed was negotiating to protect their interests and water rights as a well paid consultant for the Joint Board of Control.
Unfortunately sometime between 1993 and 2012, Mr. Mikkelsen was personally “enlightened” as to the futility of standing up against federal and tribal over reach on the reservation. (During this period, Mikkelsen had also completed a stint in Washington DC working for Denny Rehberg, former Representative of Montana and the brains behind Farmers and Ranchers for Montana, funded by the tribe, who lobbied aggressively for the compact in 2015 under the guise of being a grassroots entitiy of farmers). It was this new 2012 Alan Mikkelsen who presented to the Joint Board a water use agreement that significantly reduced water deliveries and proposed that:
… the United States and the FJBC agree to withdraw and cease prosecution or defense of all claims to federal reserved water rights, state‐based claims, permits or exempt water rights for water held in their names in the Montana General Stream Adjudication for use on lands served by the FIIP.
We were at the May of 2012 Joint Board of Control meeting when Mikkelsen unveiled this horrendous agreement (subsequently ruled to be an unconstitutional taking) and told the board that these things were “non-negotiable” by the tribes and this agreement was “the best deal that irrigators are going to get.”
How sad this situation is for so many living in our valley that placed a tremendous amount of faith in the efforts of one man. This example demonstrates just how important it is for irrigators and other citizens to be alert, vigilant, and to do their own homework.
For yet unknown reasons this water compact is being pushed by deep pockets, Montana cronyism and a significant amount of corruption and deceit. We may never know why the state of Montana was willing to sacrifice the rights of its citizens, its most valuable natural resources, and its constitutional mandates concerning water for the sake of an unsound, unconstitutional, and in our opinion, illegal compact.
It is incumbent upon each of us to pay very close attention to the parties that continue to push it, and to call them out for what they are doing.
Let’s not allow our property rights, civil rights and constitutional protections become mere “collateral damage” for the sake of finalizing the “adjudication” of water rights in Montana.