©2019 Montana Land and Water Alliance

The 1,500 page CSKT Compact was designed to disguise the truly significant issues that were at stake that should have been researched and addressed by the Compact Commission, presented to the legislature, and described to the public.  Instead, the public got the 3-page set of bullet points that focused on minor little details and cute assurances that masked the true extent of the overreach, harm, and precedent-setting nature of the CSKT Compact.

The Federal Review of the CSKT Compact/S.3013

Now that the 2015 CSKT Compact is out of Montana, and added to by Senator Jon Tester as the 2016 S. 3013 at the federal level, according to the 2015  directive from the House Committee on Natural Resources, the Departments of the Interior and Justice and the Office of Management and Budget (OMB) must complete their review of any Indian water settlement, which includes the CSKT Compact/S. 3013, before it can come before committee. While in theory this review would have presumably caught the glaring problems with the CSKT Compact and resolved them, we learned that the Departments were just going to accept the CSKT Compact as is, with no critical review.

The Interior/DOJ review has been underway for a while and we understand was near completion.  Working with our legislative team on the People’s Compact,  which we believe resolves the problems with the CSKT Compact, we were able to secure an opportunity to send our concerns to and have a discussion with the Interior Department’s Secretary’s Indian Water Rights Office about their review. This was to ensure that the United States was aware of the concerns of Montana citizens that were not represented by the State of Montana in the so-called “negotiations”.

The Letter

The letter we sent to the Department of the Interior is our “CSKT Compact in a Nutshell”, and you will see boils down to issues you probably never heard of because the State did not tell you what the CSKT Compact was really about or the actual legal constraints that should have prevented the CSKT Compact from developing in this form.

You will note that this is not a “nutshell”.  But it is as close to succinctly describing the fundamental problems with the CSKT Compact as it can be, and it does not describe it all!  So while it might take you a few days over several glasses of your favorite beverage, we think you will see that the CSKT Compact is even worse than you already know!

Was the state of Montana nuts?

December 17, 2018

                    , Esq.

Director, Secretary’s Indian Water Rights Office

U.S. Department of the Interior

1849 C Street NW

Washington, D.C.  20240

                         VIA ELECTRONIC TRANSMISSION

Dear Director:

We understand that the Department of the Interior,  the Justice Department and Office of Management and Budget are currently undertaking a review of the United States’ liability with respect to the proposed Confederated Salish and Kootenai Tribes (CSKT)-Montana water compact, and Senator Tester’s S. 3013 (2016) which incorporates that compact into a larger bill.  In support of that review, we are writing to provide new information that you may not be aware of to assist the Departments’ analysis and to ensure that all the aspects of the United States’ potential liability are fully addressed.

The context for submitting this additional information arises from the specific historical and legal circumstances of the Flathead Indian Reservation and from the provisions of the CSKT Compact itself. We believe that these circumstances will necessitate the evaluation of the United States’ liability beyond its potential liability to the CSKT and consideration of the impacts of the precedent-setting provisions of the CSKT Compact on Montana and the western states. In the pages that follow, we describe just a few of the key issues in the CSKT Compact and why we believe that the U.S. liability to the non-Indian settlers and off-reservation residents could be even greater than the $2.3 billion dollar price tag associated with Senator Tester’s S. 3013.

Liability to Non-Indian Project Water Users in the Flathead Irrigation Project

Pursuant to Article VI of the Treaty of Hellgate, the Flathead Indian Reservation was opened for settlement in 1909.  In anticipation of settlement, in 1908 the United States constructed an irrigation and power project that is statutorily obligated to serve all residents of the reservation.[1]  To meet this objective, the United States reserved or appropriated under state law 2.6 million acre feet of water to serve the integrated water and power project.  The United States holds the project water right by contract with the irrigators in the project who own 90% of the lands now served by the project.  Further, the 1908 Act created a statutory obligation to turn the management and operation of the project over to the landowners served by the project upon the completion of repayment of the construction costs to the United States (35 Stat. at 450).  The costs were completely repaid in 2004.

Under the terms of the CSKT Compact, the contract between the United States and irrigators is nullified because the bare legal title to 100% of the water is turned over to the Tribes[2], 90% of which is intended to be changed from irrigation use to instream flow. Under the terms of the CSKT Compact, it is estimated that historic irrigation water deliveries could be reduced by 40%-70%.[3] Moreover, federal management of the federal irrigation project is turned over to a committee consisting of the state and Tribes with minimal representation of the United States or the irrigators who paid for the project.[4]  Under Senator Tester’s bill, the federal infrastructure of the Flathead Irrigation and Power Project (FIPP) is also given to the CSKT[5].  We believe this constitutes a Fifth Amendment taking without compensation, for which the United States would be liable.

The Winters Doctrine, the McCarran Amendment, and Off-Reservation Water Rights

We assert that the provisions in and water claims of the CSKT Compact are outside the legally permitted scope of the Winters Doctrine and the McCarran Amendment and therefore the CSKT Compact is not a federal reserved water rights settlement[6]. As a threshold issue, the State of Montana failed to quantify the federal reserved water rights of the tribes and instead allowed virtually unlimited claims to be filed for all surface water on the reservation[7] as well as significant claims for state-owned water resources outside the geographical boundaries of the opened Flathead Indian Reservation.

The responsibility for the adjudication of water rights within a state belongs to each state.  In order to provide for a comprehensive adjudication of all water rights within a state that also had federal reservations of land, the 1952 McCarran Amendment (43 U.S.C. 666) waived the sovereign immunity of the United States for the purpose of adjudicating federal water rights, which include the water rights of Indian Tribes.  The only federal water rights that are found within the states are those water rights associated with the federal reservation of land. The CSKT Compact was negotiated pursuant to procedures established by the Montana legislature under the auspices of the Montana General Stream Adjudication which is a McCarran Amendment proceeding.

In sharp contrast to the principles of the Winters Doctrine and federal reserved water rights, the 2015 CSKT Compact and Senator Tester’s S. 3013 begin with a tribal, not federal reservation of land:

WHEREAS, pursuant to the Hellgate Treaty of 1855 12 Stat. 975, the Confederated Salish and Kootenai Tribes reserved the Flathead Indian Reservation

Bluntly, if the CSKT reserved the reservation themselves[8], are there any federal reserved water rights? Indeed, the CSKT assert that their Tribal reservation of land gives rise to aboriginal water rights and [tribal] reserved water rights to fulfill the purposes of the Treaty:

WHEREAS, the Confederated Salish and Kootenai Tribes claim aboriginal water rights and, pursuant to said Treaty, reserved water rights to fulfill the purposes of the Treaty and the Reservation

Thus, the CSKT Compact does not meet the definition of a federal reserved water right proceeding based on the Winters Doctrine.

The Montana General Stream Adjudication is governed by the McCarran Amendment with respect to the adjudication of federal water rights, which arise only from a federal reservation of land.  Except for this CSKT Compact, every Indian and non-Indian compact negotiated in the State of Montana acknowledges the federal reservation of land.  In short, there are no “aboriginal tribal reserved water rights” recognized in or allowed by either the Winters Doctrine or the McCarran Amendment in a state’s general stream adjudication.

Notwithstanding the prescriptions of the Winters Doctrine and requirements of the McCarran Amendment, the 2015 CSKT Compact and Senator Tester’s S. 3013 used the erroneous tribal reservation of land to create and claim new ‘tribal reserved water rights’ geographically outside the Flathead Indian Reservation, extending their claims throughout western Montana[9].  This is in stark contrast not only to existing law, but also violates an Indian Claims Commission stipulation agreement signed by the CSKT in 1966 that forever barred the CSKT from seeking any further off-reservation claims that it could have filed against the United States in any forum.[10]

While we recognize it has been a long-term policy goal of the Tribes to assert the Tribal reservation of land instead of the federal reservation of land as a basis for a Tribal reserved water right[11],  such a mechanism is not afforded to the Tribes because the Winters Doctrine and McCarran Amendment recognize only those federal  water rights that arise from a federal reservation of land[12].

The potential liability to the United States of the asserted non-federal reserved water rights claims in the CSKT Compact appear to be two-fold. First, the United States could face the loss of most if not all these water claims for failure to adhere to and comply with the Winters Doctrine and McCarran Amendment thus wasting time and resources in the effort.  Secondly, it appears that if the United States somehow prevailed in these claims, it would be in direct violation of a stipulation agreement signed between it and the CSKT in 1966. We also believe this will result in a Fifth Amendment taking without compensation of the water rights of hundreds of thousands of Montanans both on and off the reservation.

A Closer Look at Article 3 of the Treaty of Hellgate and Off-Reservation Water Rights

The CSKT Compact asserts that Article 3 of the Treaty of Hellgate, a “Stevens Treaty”, reserved a water right off the Flathead Reservation to fulfill the purposes of the Treaty.  For the CSKT Compact purposes, the relevant language of Article 3 is:

…the exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land[13]

Commonly seen as a right of access to usual and accustomed places, the geographic scope of the Stevens Treaty access right extends only to the lands ceded by a Tribe to the United States or to reservations within the ceded areas created by the United States when the treaties were ratified (United States v. Winans, 198 U.S. 371 (1905)).[14] The Winans case was not a water rights case but was about a servitude in the land and had nothing to do with reserved water rights.

The CSKT Compact, however, combines the Winters and Winans cases together so that the Article 3 Treaty-imposed servitude generates a reserved water right for instream flow.  The Compact extends this Article 3 reserved water right claim outside the CSKT aboriginal lands ceded to the United States, and then further, extends the reserved water right east of the continental divide to include reserved water rights in the CSKT claimed “subsistence range”, which covers roughly half the state of Montana.[15]

While we recognize the complexity of the issues and policy questions presented by the interpretation of the “in common” phrase of the Stevens Treaties containing similar Article 3 language[16], we believe that the off-reservation claims presented in the CSKT Compact should not be resolved within a federal reserved water rights settlement that is a McCarran Amendment proceeding.

Article 3 in our view does not generate federal reserved water rights, or any other water right. However, in the People’s Compact we attempted to address the 270,600 acre feet of water awarded to the CSKT out of the irrigation project in 1985 for fisheries purposes as part of the on-reservation federal reserved water right. We are unsure if this is the proper way to address this as bifurcating the Article 3 into on-reservation or off-reservation access rights, with on-reservation access generating a federal reserved water right doesn’t fit the legal intent of Article 3’s access provisions, or the “in common” language’s addition of a harvestable quantity of fish. It makes more sense to attribute the 270,600 acre feet awarded to the Tribes for fisheries in 1985 as the agricultural reserved water right that was changed to instream flow. This highlights the importance of accurately describing Article 3 and appropriately attributing federal reserved water rights to the purpose they are generated from. [Note: our further research resolved this problem by noting that Article 3 is not a purpose of the reservation but instead conveyed usufructory rights to use the reservation for fisheries within the irrigation project.  See the People’s Compact Framework Paper for how this resolution affected the People’s Compact here.]

 Water Administration, Due Process, and Civil Rights

We assert that the water administration mechanism proposed by the CSKT Compact violates the due process rights of Montana citizens and is a violation of the civil rights of citizens guaranteed by the U.S. Constitution.

A central feature of the CSKT Compact involves the replacement of the Montana Water Use Act[17] with a new compact-created administration system that permits a political entity to have jurisdiction over the water rights of Montana citizens whether based in federal, state, or tribal law.  Known as the Unitary Management Ordinance or Law of Administration, it vests the power to manage the state law-based water rights and uses of  Montana citizens in a politically-appointed and unaccountable board dominated by the CSKT.

Resolution of disputes among water users within the Law of Administration, whether tribal or non-tribal, is up to a “court of competent jurisdiction”, which under the CSKT Compact the litigating parties must agree upon.  Since it is likely the Tribes will never accept state court jurisdiction, a federal court will be the only resort of Montana citizens, and that federal court may not have jurisdiction over the issue.

Thus, Montana citizens are deprived of the customary District and State Supreme Court mechanism employed to resolve disputes among citizens and are deprived of the constitutional protections of the Montana and U.S. Constitutions[18].  The liability to the United States and state of Montana for these violations is incalculable[19].

Summary

In summary, the evaluation of the United States liability regarding the proposed CSKT Compact necessarily will involve expanding the scope of the analysis to include the impacts to the thousands of non-Indian citizens within the Flathead Irrigation Project, residing on the reservation, and potentially to the hundreds of thousands of citizens across Montana whose water rights will be impacted by the extensive claims of the CSKT.

The damage done to the Winters Doctrine, the McCarran Amendment, Acts of Congress, Congressional intent, and the civil and due process rights of Montanans, while evident in the terms of the CSKT Compact, are almost incalculable.  For these reasons, we believe that the CSKT Compact is not in any way, shape, or form a settlement of the federal reserved water rights of the CSKT.

 A Proposed Solution

The complexities and impacts of the CSKT Compact, and the potential liability both to the United States and State of Montana generated by it inspired us to develop an alternative solution to present to Congress for consideration.[20]

This effort began with a sincere desire to resolve the federal reserved water rights of the CSKT within the framework of existing federal reserved water rights law and the McCarran Amendment; to respect the Congressional intent in the development of the water resources of the Flathead Reservation;  and to resolve any outstanding water claims of the Tribes.  Because the CSKT Compact itself generated considerable divisiveness, our intent was to also mend fences within our community and across the state of Montana.

Called “The People’s Compact” or “Mending Fences Act”, this alternative solution quantifies the federal reserved water rights of the CSKT,[21] resolves an outstanding 1951 CSKT Claim related to the use of water in the Flathead Irrigation Project, provides for the development of the Tribes’ federal reserved water rights including the rehabilitation of the Flathead Irrigation Project to benefit both fisheries and irrigation, and retains the dual administration system for state law-based and tribal law-based water rights characteristic of every other Compact in Montana.

Under the People’s Compact-Mending Fences Act, there are no off-reservation water claims.  The estimated costs for this settlement, including the resolution of the outstanding water claim of the CSKT, are between $600 and $775 million dollars, less than one-third of the costs in Senator Tester’s S. 3013.

We have attached to this letter a background paper describing the Legislative Framework for the People’s Compact, which provides new information the Department may not be aware of and describes the current issues that must be addressed in moving forward with the resolution of the CSKT federal reserved water rights.  The paper provides a pathway forward in rectifying the deficiencies of the CSKT Compact/S. 3013, limiting the United States’ liability, and providing a viable and vibrant self-determined future for the full use and development of the CSKT federal reserved rights.

For your information, we have also attached additional information including a legal review of the CSKT Compact and charts comparing Indian water rights settlements in Montana and across the United States with the proposed CSKT Compact.  We hope you find these useful to the Department’s evaluation of the CSKT Compact.

We look forward to our discussion with you and the Secretary’s Indian Water Rights Office.

Sincerely,

/s/ Al Olszewski

Dr. Al Olszewski, State Senator

Co-signators: Boone Cole, Chairman Jocko Irrigation District; Catherine Vandemoer, Ph.D. Chair, Montana Land and Water Alliance;Terry Backs, Concerned Citizens of Western Montana

Attachments

Cc:  Office of Senator Steve Daines, Congressman Greg Gianforte

FOOTNOTES

[1] 35 Stat. 444, 448-50. See also Letter to James Steele, Jr., Chairman, CSKT from Edith Blackwell, Deputy Associate Solicitor, Division of Indian Affairs, U.S. Department of the Interior,  December 21, 2007.

[2] In 1982, the Bureau of Indian Affairs (BIA) timely filed water claims on behalf of project water users in the Flathead Irrigation Project.  In 2015 the BIA filed competing claims on the same water but on behalf of the CSKT.

[3] Richard A. Simms, “Letter to Montana Legislators Regarding the Lack of Quantification in the Proposed CSKT Compact”, January 11, 2015, in Montana Land and Water Alliance, 2015,  Legal Analysis of the CSKT Compact

[4] The Compact Implementation Technical Team (CITT), already implementing the compact inside the federal irrigation project, replaces the BIA. Irrigators, who own 90% of the project lands, are allowed one representative.

[5]The 1908 Act maintains federal ownership of the federal infrastructure although management and operations would be turned over to the landowners served by the project

[6] The Winters Doctrine specifies that the federal reserved water right is the amount of water necessary to fulfill the purposes of the reservation and is a discrete amount of water limited to the reservation land.

[7] The additional CSKT claims filed after the Compact was passed by the Montana legislature included claims for 35 million acre feet of ground water beneath the reservation.  The United States did not include these ground water claims as part of their filing of the post-passage 10,000 claims.

[8] The concept that Indian Tribes reserved their own reservation is defeated by history and case law.  See, Simms, Richard A., January 8, 2015, Memorandum to Senate President Debby Barrett and Speaker of the House Austin Knudsen; and Simms, March 18, 2015 “Threat of 10,000 Off-Reservation Instream Flow Claims” in Legal Analysis of the CSKT Compact, MLWA, April 2015.

[9] The United States and CSKT claim that Article 3 of the Treaty of Hellgate conveys a tribal reserved water right to meet the Treaty right to access aboriginal lands to fish. The extent and scope of the Article 3 access right is a hotly debated and litigated issue outside of McCarran Amendment proceedings.

[10] 17 Ind. Cl. Comm. 297. Stipulation agreement found at p. 309 and reads “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.”

[11] American Indian Policy Review Commission Final Report Submitted to Congress May 17, 1977

[12] Any additional claims for off-reservation water rights in western and eastern Montana would have to be resolved through a separate court action outside of the McCarran Amendment proceeding’s Montana General Stream Adjudication.

[13] Treaty with the Flatheads etc., July 16, 1855 12 Stats. 975, Ratified March 8, 1859, in Indian Affairs Laws and Treaties Vol. II (Treaties), Compiled by Charles J. Kappler, Washington, Government Printing Office, 1904.

[14] See also Antione et ux. V. Washington, 420 U.S. 194, 205 (1975).

[15] Simms, Richard A., 2015. “Threat of 10,000 Off-Reservation Instream Flow Claims”, in Montana Land and Water Alliance Legal Analysis of the CSKT Compact, March 18, 2015.

[16] For example, see United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975), otherwise known as the Boldt Decision, that expanded the “in common” language to include a right to 50% of the harvestable fish. The decision did not amend the nature of Article 3 to include a water right.

[17] Montana Code Annotated Title 85

[18] Simms, Richard A., 2015, “Constitutional Violations of the CSKT Compact”, in Montana Land and Water Alliance, 2015, Legal Analysis of the CSKT Compact.

[19] Title 42 Sec. 1985

[20] With the completion of the negotiations on the CSKT Compact and its passage by the Montana legislature, Montana’s Compacting process through the Montana Reserved Water Rights Compact Commission has been completed. Pursuant to that process the CSKT and United States water claims on behalf of the CSKT were filed with the Montana Department of Natural Resources and the Montana Water Court in July 2015.

[21] The quantification numbers are taken from the 2015 United States water claims filings that were developed to fulfill the agricultural, on-reservation fisheries, and industrial purposes of the reservation as articulated in Articles 3, 5, and 6 of the Treaty of Hellgate. [Note, Article 3 is not a purpose of the Flathead Reservation.  See here.]

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