©2018 Montana Land and Water Alliance

As people around the state of Montana start receiving their Second Notice from FARM, threatening the water rights of irrigators if Congress does not approve the CSKT Compact, the question begs itself:  is FARM lying?  If the compact is so good for Montana, why do they have to threaten Montana citizens?  This threat is not only among the partisan groups like FARM, it also permeates through the halls of Montana’s executive branch.

There is an old adage that says, “if you repeat a lie long enough eventually people will believe it”…like the statement that “Article 3 of the Treaty of Hellgate grants the CSKT extensive water rights off the reservation in their aboriginal territory”. This is flat out untrue as Article 3 grants ACCESS to off reservation, ceded aboriginal lands IN COMMON WITH THE CITIZENS OF THE TERRITORY.

Or FARM’s statement that “like all state based claims, all tribal claims are presumed valid, predate most if not all water use claims, and can be enforced against all other water users until adjudication is completed.” What?

Our questions, and those that EVERY MONTANAN should be paying attention to are:

In what world does the State of Montana get to give a state water right with a time immemorial priority date, predating statehood, to a Tribe? Has it happened before?

And, since Montana’s general stream adjudication has been underway since 1979, has anyone been deprived of the use of their water during that adjudication process?

Think about this.   And note, Article I of Montana’s Constitution, and Article I (10), the Fifth and Fourteenth Amendment of the United States Constitution prohibit the state of Montana from advancing either one of these claims or actions.

REVIEW: THE CSKT COMPACT IN ONE CHART

The FARM organization, as all compact proponents, tout the the “negotiated” aspect of the CSKT Compact as if that somehow magically allowed the state, the CSKT, and the United States to violate the basic legal  framework of a federal reserved water rights settlement:

Federal Reserved Water Rights Settlement vs. CSKT Compact

Key Features Federal Reserved Water Rights Settlement or litigation CSKT Compact
Reservation of land United States CSKT
Purpose of the reservation Articles 3, 5, 6  of Hellgate Treaty: Agriculture, Fisheries, Industrial Permanent homeland
 Volume of water Discrete amount of water required to fulfill purposes Unlimited
Geographic scope of federal reserved water right Reservation boundaries unlimited
Administration State & tribal control over respective resources U.S./Tribal control over all water rights

Being in a federal reserved water rights negotiation does not allow the state to violate federal or state law.  Contrary to the Compact Commission’s determination, this flexibility is not allowed and should never have been taken by a non-elected political body subject to the Governor’s whim.

On its face then, when this compact gets to Congress, it just might be laughed out  of the halls. It simply cannot be defended.

CLOSING THE DEBATE ON WHETHER ANY OFF RESERVATION WATER RIGHTS EXIST FOR THE CSKT

The compact proponents are all promoting a compact that puts the water rights of hundreds of thousands of Montana residents across the state at risk.  Thus FARM in fact is advocating against the farming and ranching community despite claiming the opposite.

Let’s provide the proper framework for ending this discussion.

The top diagram on this Legal Context & Reference Map shows the geographic scope of various treaties in Montana.   The bottom map shows the CSKT Compact claims plus the “10,000 Claims” filed in eastern Montana after the legislature passed the compact in 2015.

The top map shows the geographic scope of the Treaty of Hellgate, and other treaties that historically limit the range of the Flathead Tribes’ historic occupation.  The only reason the treaties are relevant at all in this discussion are to determine the scope of the federal reserved right.  Note the following:

  1. The  lands covered by the Treaty of Hellgate are outlined in green and are in western Montana.  They include the ceded lands and the Flathead Indian Reservation.  They are bound on the east by the Rocky Mountains and the Judith River Treaty area (blue), and on the southeast by the common hunting area used by all tribes.  The western boundary of the lands covered by the Treaty border Idaho, except for a small section that borders ceded lands of the Pend de’Oreille Tribe of Idaho.
  2. The Article 3 access right to aboriginal territory is limited to only those lands ceded by the CSKT to the United States, aka, western Montana.
  3. In Article 5 of the Judith River Treaty, the Flathead agreed to not permanently occupy any land east of the continental divide and to limit its use to temporary hunting and fishing.
  4. The red line is an arbitrary line drawn by the state and tribes that extends into the Judith River Treaty area and outside the CSKT ceded lands to signify a “subsistence area”, which are the geographic scope of the  “10,000 off reservation claims” filed by the Tribes after the compact passed, shown in the bottom map.

Conclusions:

  • First, there are no federal reserved or “state law” water rights off the Flathead Indian Reservation.
  • Second, the Article 3 Treaty right is an access right, not a water right, limited to the lands ceded to the United States in western Montana.
  • Third, the CSKT have no “access right” to lands in the claimed “subsistence area” because the Treaty of Hellgate limits the access right to lands they ceded to the United States in western Montana.

That similar claims to off reservation water rights by a tribe have been soundly defeated by the State of Idaho makes you wonder what Montana was thinking!

Of course, Montana had tribal advocates running the Attorney General’s office and Compact Commission, thinking that they could break the law and no one would notice. Or by the time they did, it would have already passed the legislature.

That the state of Montana supports the outrageous claims put forth by FARM–by not refuting them and sometimes repeating them–is an embarrassing stand for a western state whose neighbors have decided to follow the law.

The CSKT Compact was NOT the Only Solution

Another fallacy readily accepted by an unsuspecting public was the line that the CSKT Compact, with all its illegality and excesses, was the only solution to this issue. Was it?

Just think about the difference between the CSKT Compact and other settlements in Montana.  Why did this one end up this way?

What if the State, Tribes and United States actually had focused on the resolution of the federal reserved water rights of the CSKT according to practice and the chart above?  Would we all be here more than six years later, accurately describing and sounding the alarm?

After 20 years, you mean there was no alternative?  And a 1,500 page document that no one could understand was put forth as “the best you’re going to get”?

No, this was the best scenario for the Tribal, state, and federal governments, not for the people of Montana.

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