©2017 Montana Land and Water Alliance

Our thanks to the Western Ag Reporter for publishing this article!

As we have reported in these pages, the CSKT Compact was never about settling the federal reserved rights of the Tribes, protecting culture, or protecting a fishery.  Instead, the compact represented a vast and obscene federal water grab disguised as an Indian water settlement.  Recall that the CSKT compact claims tens of millions of acre feet of water in western Montana on and off the reservation on lands that the Tribe ceded to the United States. The CSKT also claimed water rights on so-called “subsistence territory” in eastern Montana in which the CSKT were barred by the Judith River treaty and inter-tribal warfare from having a permanent presence.

Bear in mind that the extensive CSKT water grab was enabled by the state of Montana executive—specifically Governor Bullock and Attorney General Tim Fox–who took it upon themselves to reinterpret the Treaty of Hellgate and to ignore the legal “rules of the road” for federal reserved water rights quantification. This allowed the state, via Attorney General Fox,  to assert that the CSKT had more rights than regular Montana citizens who own land in fee and more rights than even the federal government had ever given Tribes.

Timing of EPA Aggression and CSKT Compact Not a Coincidence

Therefore, it was no coincidence that the CSKT Compact was introduced to the Montana legislature at the very same time that the Environmental Protection Agency (EPA) was expanding federal jurisdiction over water and land through aggressive Tribal “grant” programs like in Wyoming, and the issuance of the Waters of the United States (WOTUS) rule.   These federal actions in other states would have given the unlawful CSKT-federal water grab in Montana the illusion of “federal law” backing this compact, just like the CSKT Compact endorsement by the Attorney General gave the compact the illusion of  “state constitutionality”.  In fact Mr. Fox went so far as to say the private landowner’s Constitutional rights were diminished because they lived within the “exterior boundaries of the reservation”.

The WOTUS rule was thankfully negated by President Trump in an Executive Order, noting that federal agencies do not make law. The practical result of this action is that the states still retain their authority over the waters within their boundaries and the mandate to protect individual state water rights.

In the Wyoming matter, an air quality grant to the Wind River Tribes led to the assertion of jurisdiction over all activities on certain lands that were ceded to the United States and allotted under the various homestead and reclamation laws.    The Wyoming Farm Bureau—representing irrigators on those lands—had the legal standing to file suit and did so, eventually winning the case.   The Court said:

“We also find the Wyoming Farm Bureau has standing to sue on behalf of its members…..  In this case, some Farm Bureau members own farms within the disputed area and face the costs of complying with a new regulatory regime following the EPA’s decision…. Therefore, we find the Farm Bureau has standing to sue on behalf of its members.”

According to the Mountain States Legal Foundation press release, “exactly what kinds of problems did Wyoming farmers face?  Nothing short of the possibility that non-Indians would be sued in tribal courts that, under the Constitution, have no jurisdiction over non-Indians.  And the possibility that those convicted of crimes in Wyoming courts would be set free because of claims that the case should have been tried in tribal court.”

These very same problems are those now faced by thousands of Montana citizens affected by the CSKT Compact.  The vehicle for this assault on Montana citizens is the Compact’s proposed “Law of Administration”, wherein the state unnecessarily gave up its constitutionally mandated authority to protect and administer the water rights of its citizens and crippled the ability of Montanans to use both the state district and Supreme Court to seek remedies. In contrast to the Wyoming Farm Bureau, the Montana Farm Bureau also failed to recognize this reality and threw western Montana irrigators under the bus by supporting the CSKT compact.

Cede Means Cede—Title is Extinguished

The Wyoming Farm Bureau’s victory in defeating EPA’s land grab has implications for Montana and the CSKT Compact.  The Tribes—supported by the state of Montana—claimed not only that they had water rights on lands they ceded to the United States, but claimed ownership of water rights on private lands within the exterior boundaries of the reservation that were purchased and settled by homesteaders and others.  The CSKT have been compensated over and over again for these same lands, and after the allotment of lands through Article VI of the Hellgate Treaty and in 1904, the aboriginal title to those lands has been extinguished.  The court found in the Wyoming case that the word “cede” actually means “cede”:

“Our task is not to divine why Congress may have chosen certain synonyms over others in this particular Act.  We believe Congress’s use of the word “cede” can only mean one thing—a diminished reservation.  A review of several dictionaries from the turn of the twentieth century confirms that adding the words “sell” or “convey” would not materially change the intent Congress evinced in the 1905 Act.  And in any event, Article II of the 1905 Act includes the word “conveyed”.

Article I of the Hellgate Treaty confirms that the CSKT forever ceded and relinquished all title, rights, and interest in and to their aboriginal territory in western Montana to the United States.  But the first two recitals of the CSKT Compact completely negate this actual history, claiming water rights, fishery rights, and co-management rights for water on all those lands they ceded and were paid for. Remember that the CSKT threatened to file “10,000 additional claims” in eastern Montana if the compact was not approved by the legislature…and when it was allegedly approved, the CSKT filed the claims anyway.

Explanation Needed

Would it surprise you to know that at the same time the Montana Attorney General was pushing the CSKT water compact, he was also filing briefs in support of the Wyoming Farm Bureau  litigation and the states challenging the WOTUS rule?

In fact, on the very same day in February 2015 that the CSKT Compact was being heard before  the MT Senate Judiciary Committee and citizens were begging the legislature to protect their water rights, AG Fox was testifying before Congress that his job was “to protect the water rights of the state and the citizens of Montana”.

How can the Attorney General reconcile his actions against the federal overreach of WOTUS and in Wyoming with his unwavering support of the federal water grab represented by the  CSKT Compact?