© 2020 Concerned Citizens of Western Montana
It isn’t often in this fierce battle for water and property rights in western Montana, that we get small glimpses of the truth from the government parties about what the Flathead water rights settlement was supposed to be, to contrast with what they’ve allowed it to become.
In our last post, we pointed out that at a Congressional hearing held in Ronan in 1979, the Vice Chair of the CSKT said this in a public statement about the US v Abell et al lawsuit:
“I would like to set the record straight. The Confederated Salish and Kootenai Tribes Council has never claimed water or water rights outside of the border of the reservation”.
As late as 2008, John Tubbs, current Director of Montana’s DNRC instructed the compact commission that “reserved rights should be within reservation boundaries“.
So why then does the Daines / CSKT Compact include time immemorial, off reservation water rights to vast amounts of water?
How can anyone in Montana, or anywhere else for that matter, have certainty with respect to their land patents or property rights if the ball keeps moving toward federal government overreach and away from the rule of law?
That made us wonder what Montana was saying in 1979 when these lawsuits were filed. We thought that perhaps officials would have done their best to assuage the anger and fear of the 4,600 or so defendants in the United States federal reserved water rights lawsuits. We found very few references to the state’s response:
1979 04 13 News Release, Governor Thomas L. Judge
The state, fearful of this litigation and the threat of more, touted its negotiation strategy as the best solution for everyone. Defendants, some of which may not even have a water right to defend, were told to lawyer up. And Montana sang its “Compact Commission Negotiation Lullaby” to citizens who wanted to believe that the state had a system in place to protect their water rights.
The Commission, created in 1979 as part of the general stream adjudication process, is authorized to negotiate with Native American tribes and federal agencies that claim federally reserved water rights within Montana. The water rights claims of the federal entities are suspended from adjudication while they are under negotiation with the Commission. Through statute, the Commission is authorized to: . . . proceed . . . with an effort to conclude compacts for the equitable division and apportionment of waters between the state and its people and the several Indian tribes claiming reserved water rights within the state. . . Source: 1988 Final Water Policy Committee report to the MT legislature
While the commission may have been nice in theory, the Daines S.3019 / SB262 Compact they “negotiated” is far from the “equitable division and apportionment of waters” the state had initially envisioned.
Testimony from the 1979 Montana Water Right field hearings shows that federal officials had worked diligently to get the Montana legislature to remove Indian Water Rights from inclusion under the umbrella of Senate Bill 76 that passed earlier in the year. That bill created the Montana Water court and the “politically appointed” Montana Reserved Water Rights Compact Commission.
In his testimony to the committee on July 30, 1979, Solicitor Leo Krulitz arrogantly stated:
The issues involved in Indian water and property disputes are federal
in nature and are within the unique expertise of federal courts. Many Indian issues, particularly water rights, generate considerable controversy and emotion. Federal judges, appointed for life, are more able to act in an objective, dispassionate manner than can be popularly elected state judges.
When their efforts to influence the legislature failed, the United States followed through with its threatened lawsuits against Montana and approximately 4,600 other defendants across the state.
We argue that federal officials did not act in good faith, because they were aware of the 1978 U.S. Supreme Court ruling in U.S. v New Mexico that strictly limited federal reserved water rights to the primary purposes of the reservation. (Note: Article VI of the treaty declared the intent of the federal government to allot lands to individual tribal members and to open the reservation to settlement. A homeland was not a primary purpose of the reservation).
In the aftermath this decision, federal officials began to lobby for negotiations to settle federal reserved water rights. After all, when backed up with the threat of litigation, this avenue could more easily result in coercive, expansive outcomes without ever going through the courts or state adjudication processes.
Better yet, the claims in a negotiated settlement, no matter how unreasonable or overreaching, could literally move through the system without ever having been examined. We hope Senator Daines can appreciate this little nuance with respect to the S.3019 / SB262 claims he proposes to award in his compact.
With its negotiation and fear of litigation strategy, the feds struck BLUE GOLD in Montana. By filing all of those lawsuits back in 1979, they successfully introduced the fear of aggressive and expensive federal litigation into the hearts and minds of Montana officials and citizens.
We believe the 1979 litigation, and Montana’s weak in the knees response to it, compromised the whole negotiation process from the very beginning, up to and including the Daines Compact.
In 2015 Chas Vincent conveyed the same weak response at the Senate Hearing for his water compact bill SB262:
“if you have Walton Rights … go adjudicate ‘em. …… But why drag everybody else from the Idaho border to Townsend into court with ya?
What the Senator from Libby failed to understand was that the compact process ensures that Montanans holding these valuable water rights cannot compete with the time immemorial water rights awarded to the United States / CSKT in his legislation.
It’s no wonder why the 10,000 claims were filed after the water compact was questionably ratified in the Montana legislature. Not only did the fear of litigation created by these claims divide Montanans against one another, it also served as an “insurance policy” to make sure the overreaching Daines Compact and SB262 would have a better chance of getting across the congressional finish line. And at the risk of being redundant, without any of these unlawful, overreaching claims ever being scrutinized for legality, reasonableness, or their environmental and economic impacts.
These artificially contrived claims to eastern Montana water through a dingy, illegal and yellowed “color of law” concept, and Montana’s no response, response to them, guarantees future federal and tribal government encroachment over state resources, as well as the private water and property rights of Montanans.
Montana has also acted in bad faith, ever since it made the decision to give in to every one of the U.S. and tribe’s unreasonable demands. State officials and a corrupted Compact Commission could have taken the same path as Idaho, opting to protect the water rights of Montanans, but chose instead to place its thumb on the scales of the federal government and CSKT insisting that the compact was far better than decades of litigation.
Remember also that in 2008 the Montana Attorney General’s office hired a known tribal advocate, Jay Weiner, and “loaned” his services to the Compact Commission as their staff attorney. In that capacity he worked for the benefit of the U.S. and tribes by constructing a legal narrative to explain the state’s capitulation. In 2015, Attorney General Tim Fox, touted Weiner as his “water guru.” Weiner is now the chief legal counsel to the Klamath Tribe, while still working “for” the state of Montana.
In 2015, Attorney General Fox told a legislator that he was aware of constitutional problems with the compact, but it’s expensive to sue, so he wasn’t worried about litigation from Montanan’s impacted by it. In other words, he was only worried about litigation from the federal government and the tribes. If this isn’t corrupt and cynical, we don’t know what is.
When you have an attorney general who supports the Daines’ compact and tells the non Indians living within the exterior boundaries of a diminished Indian reservation that they should have known their rights are diminished, how can anyone ever expect to get a fair shake from the state of Montana?
Here, it is doubtful that non-Tribal water users on the Reservation are similarly situated with non-Tribal water users in the rest of the state. Property on the Reservation is subject to special rules derived from the unique federal status of the Tribes. Non-Tribal citizens moving to the Reservation should know that when they live within the boundaries of the Reservation, they might be subject to different rules that may not otherwise apply if they lived off the Reservation, especially on issues surrounding water use.
We can’t help but wonder if this TIM FOX STANDARD will also be applied to the people whose water rights intersect with the US/CSKT claims covering 2/3 of the state of Montana, which arguably is the new ex post facto Flathead Indian Reservation?
So, is Montana hopelessly compromised? You bet it is.
Note: An ex post facto law (corrupted from Latin: ex postfacto, lit. ‘out of the aftermath’) is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.