©2018 Concerned Citizens of Western Montana
Created by the Montana legislature in 1979, Montana’s Reserved Water Rights Compact Commission stayed within its legislative mandate and authority, at least in the beginning. By all appearances, they had succeeded in developing at least two compacts that defined the federal reserved water rights for the Fort Peck and Northern Cheyenne Indian reservations and actually sought to provide a final resolution of their claims, giving some level of certainty to impacted water users within the hydrologic basins in which these reservations were located.
The Fort Peck water rights compact was negotiated by the Montana Water Rights Compact Commission under the chairmanships of Henry Loble and W. Gordon McComber. In 1985 the Montana legislature ratified the Fort Peck water rights compact. It is codified under MCA 85-20-201.
ARTICLE I of the Fort Peck compact begins with a clear purpose:
The basic purposes of this Compact are to determine finally and forever all rights of the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation in the State of Montana to water on, under, adjacent to, or otherwise appurtenant to the Reservation, to settle existing disputes and remove causes of future controversy between the Tribes and the State and between Indians of the Fort Peck Reservation and other persons concerning waters of the Missouri River……
ARTICLE IX is also clear in terms of the finality of the resolution of the tribe’s water claims:
The Tribal Water Right confirmed in Article III shall be final and conclusive. With the exception of the Tribal Water Right recognized herein and rights established under state law as authorized by this Compact, the Tribes and the United States as trustee for the Tribes hereby relinquish forever any and all existing and future claims to water from any source and for any purpose. This relinquishment includes, but is not limited to, any claim for water derived from: aboriginal use of land or water; any Indian treaties; any act of Congress; and any executive act of the United States.
The Northern Cheyenne water rights compact, ratified by Congress in 1992, includes similar intent and language.
But before the ink was dry on these two water compacts, the political winds in Montana were changing. At the time the Fort Peck water compact was ratified by the Montana legislature, Chris Tweeten , an associate attorney general for the state of Montana was already a member of the Compact Commission. He became its vice-chair in 1988, and ultimately became its chairman in 1993.
It is likely that Tweeten, who has indicated that he wanted to go beyond existing federal reserved rights law articulated in U.S. v. New Mexico (strictly limiting federal reserved water rights to the primary purposes of the reservation), had already formulated that personal goal in the early years of his tenure on the Reserved Water Rights Compact Commission. Why else would his team come up with the notion of “reverse quantification“?
And that is exactly what we got in the 2015 CSKT water compact. Not only does it cede to the United States an unknown and vast amount of on and off reservation water, buried within 1,500 pages of legalese and water abstracts, it also attaches to them “time immemorial priority dates.”
Also buried within the tedious and monotonous language of the CSKT compact, is ARTICLE VII titled FINALITY. Instead of a simple and clearly written paragraph that makes its finality abundantly clear, the CSKT Compact includes a minimum of several pages that, when boiled down, essentially says that after a final decree that includes the CSKT claims as per the onerous compact is issued, the Tribes, the State and the United States will file joint motions to dismiss all other claims in other lawsuits and filings with the water court, including the 10,000 claims WITHOUT PREJUDICE.
In the legal world, a court case that is dismissed with prejudice means that it is dismissed permanently. A case dismissed with prejudice is over and done with, once and for all, and can’t be brought back to court. A case dismissed without prejudice means the opposite. It’s not dismissed forever. The person whose case it is can try again.
Do people understand that this will leave a dark cloud of uncertainty over all the water and property rights of citizens living in 2/3 of the state of Montana? ARTICLE VII and the complete CSKT Compact language in Montana statutes can be found at this link: MCA 85-20-1901.
So how did we go from a simple statement of finality in the Fort Peck Water Compact to the CSKT Compact that dismisses the tribe’s claims over 2/3 of the state of Montana without prejudice?
That is a good question to ask the state of Montana, Governor Bullock and staunch CSKT compact supporter Attorney General Tim Fox.
The simple truth is that the CSKT Compact and the litigation threats that continue to accompany it were never about providing Montanans with certainty and finality. It was about the federalization of our water and the establishment of a pathway toward endless U.S and CSKT attorney litigation against Montanans for generations to come.
Oh, and don’t forget, the state gave itself immunity from the damages it will cause to Montanans, and for all practical purposes, will not defend its own citizens as against the Tribes or the United States. That is spelled out in the so-called “mutual defense clause” of the compact. If you as a citizen are harmed by this compact, and litigate, you will be fighting the state of Montana, the Tribes, and the United States.
With a democrat Governor and democrat-lite Attorney General like we have in Montana, who needs enemies?