© 2018 Concerned Citizens of Western Montana

Clark Fork Basin Task Force Meeting 08/02/2011  discussion about the CSKT water compact “negotiations.”

QUESTION – Will the compact specify or cap the flow and volume of the CSKT reserved water right?

ANSWER BY JAY WEINER (COMPACT COMMISSION ATTORNEY) – Maybe. This is a complicated issue. If the reserved right is quantified numerically (either by volume or flow rate), it will likely be larger than the available supply. The Compact Commission will seek sideboards on the use of the reserved right to protect existing water users.

It’s impossible to understand the off reservation components of the CSKT compact, SB 262, Jon Tester’s S.3013, or the tribe’s 10,000 claims when the actual historic context is considered in the mix.  Take for example the payment made by the United States to the CSKT in 1966 as a final settlement for their off reservation ceded lands:

DOCKET 61:  THE INDIAN CLAIMS COMMISSION
OFF RESERVATION CEDED LANDS ABORIGINAL TITLE CLAIM
1950 CSKT Attorneys file a petition with the Indian Claims Commission related to off reservation lands ceded to the United States in the 1855 Hellgate Treaty. The petition, describing the lands and their appurtenant waters, claimed that 14.7 million off reservation acres were ceded and only 2 ½ cents per acre was paid for them, suggesting their value was “at least” $18.4 million or  $1.25 per acre, the minimum price of public lands at the time the lands were taken.  This petition became docket number 61, and was referred to as the CSKT Indian Title or Aboriginal Title Claim.
1958 The original petition was amended to reduce the amount of acreage ceded by the CSKT to a more accurate figure of 12 million acres.
1959 The Indian Claims Commission found that the effective date of the 1855 treaty was March 8, 1859, the date of its Senate ratification.  The case then moved to a determination of the acreage involved and the value of the lands as of March 8, 1859, in order to determine if the U.S. payment for said lands was in fact, unconscionable.
1965 Between 1959 and 1965, the court went through an intensive land classification and valuation process that included appraisers from both sides.  After consideration of the facts presented, the Commission determined that the the difference between the $593,000 consideration paid to the tribes by the United States, and its 1859 fair-market value of $5.3 million, was unconscionable and petitioner was entitled to recover $4.7 million, less whatever offsets the U.S. was entitled to under the Indian Claims Commission Act.

On November 30, 1965 the United States filed an amended answer claiming offsets of $4.3 million.  The tribes appealed, and the parties ultimately agreed that the offsets would be settled at $275,000 conditioned by the agreement of the CSKT Tribal Government, Bureau of Indian Affairs and Indian Claims Commission, as well as plaintiff dismissal of all other appeals entered for Docket 61.
1966 The proposed settlement was taken to the tribal membership, the majority of respondents in support of the settlement.  On July 1, 1966 the CSKT Tribal Council unanimously voted to accept the proposed settlement by passing Tribal Resolution 1977, APPROVING AND ACCEPTING THE OFFER TO COMPROMISE AND SETTLE THE ABORIGINAL TITLE CLAIM OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES, DOCKET NO. 61 INDIAN CLAIMS COMMISSION.

The parties entered into a stipulation agreement for final judgment that included the following condition:

“The judgment shall finally dispose of all claims or demands which petitioner has asserted or could have asserted in this case against defendant, and petitioner shall be barred from asserting all such claims or demands in any future action.”

We would like to take a moment to let the Indian Claims Commission final judgment stipulation agreement language sink in:

“The judgment shall finally dispose of all claims or demands which petitioner has asserted or could have asserted in this case against defendant, and petitioner shall be barred from asserting all such claims or demands in any future action.”

So how is it then, that in 2011 the state could be discussing the scope of the tribe’s water rights as “more water than exists?”

How is it, that in 2015, the state of Montana questionably ratified the CSKT water compact, ceding to the tribes time immemorial claims to vast amounts of off reservation water, including all of Flathead Lake, throughout western Montana?

And how could it be possible, that in June of 2015, empowered and emboldened by their success in Montana’s political swamp, the United States and CSKT promptly upped the ante by filing 10,000 claims covering 2/3 of the state of Montana, including time immemorial claims for all of the deep aquifer water that lies beneath the Flathead Reservation?

With the final language of the tribe’s Indian Claims final settlement agreement,  in what universe are they able to go from being barred from asserting future off reservation claims to claiming water not only in their ceded off reservation lands, but also to lands covering most of the state?

PONDERING THE DEPTHS OF THE MONTANA SWAMP

We can’t help but wonder what the Montana Reserved Water Rights Compact Commission was doing over its decades of so called “negotiations” with the CSKT.

Apparently instead of completing actual due diligence, the state chose to follow a pathway that ignored the history of the tribe’s claims and settlements  while deliberately attempting to erase it from the public record with a 1,500 page intentionally complicated document.  And to their credit,  they managed to kick it over the legislative finish line without ever divulging what really was ceded in it to the United States and CSKT tribal governments.

Montana instead chose a detour of sorts, using out of context decisions by activist judges, and state employed attorneys to convey that the overly aggressive claims of the CSKT were “legally colorable.”

And of course let’s not forget that state Senator Chas Vincent assured the people he had read (almost) “all the Jurisprudence” prior to putting his support behind the compact in the Montana legislature. If he had read the jurisprudence, then, how could he have missed these basic facts?  Perhaps he only read what the agenda driven Compact Commission had pointed him to.


This begs the question as to what standard should be applied to our Governor, Attorney General and Compact Commission staffers, and some state legislators who also happen to be attorneys?  Does their unbridled advocacy for such an outrageous agreement come out of their own incompetence, or is it agenda driven with a willful disregard of the rule of law, the constitution, and the history of western Montana?

Does one call that ignorance?  Negligence?  More importantly could it be considered a fraud perpetrated by all of them upon the citizens of the state of Montana?

For more information about Original and Aboriginal Indian Title, check out this 1947 article by Felix Cohen, Associate Solicitor of the Department of the Interior:  Original Indian Title

CSKT related Indian Claims Commission Docket 61 Documents

Docket 61 MAR 29, 1950 PETITION
Docket 61 AUG 03, 1959 FINDINGS OF FACT
Docket 61 AUG 03, 1959 OPINION OF THE COMMISSION
Docket 61 AUG 03, 1959 INTERLOCHUTORY ORDER
Docket 61 SEP 29, 1965 ADDITIONAL FINDINGS OF FACT
Docket 61 SEP 29, 1965 OPINION OF THE COMMISSION
Docket 61 SEP 29, 1965 SECOND INTERLOCHUTORY ORDER
Docket 61 AUG 01, 1966 FINDINGS OF FACT IN COMPROMISE SETTLEMENT
Docket 61 MAR 10, 1967 FINDING OF FACTS ON ATTORNEY FEE
Docket 61 MAR 10, 1967 ORDER ALLOWING ATTORNEYS FEES