Does the Flathead Compact Benefit Individual Tribal Members?

© 2023 Concerned Citizens of Western Montana

In our recent article about the tribe’s 10,000 claims, we talked about the fact that the parties to the Flathead Water Compact rejected the legal framework of the Winter’s Doctrine and Federal reserved water rights.

The compact that was ratified by the Montana legislature includes no claims for domestic, industrial, commercial or municipal uses of water for tribal members, tribal allottees, or for the tribal government.  It has no designation for present or future uses of water.  It is a fact that 99.7% of the water awarded in it has been designated for fish and wildlife.

So how is it that after decades of negotiations, the parties to the compact didn’t even designate a drop of water to be set aside for the estimated 5,000-7,500 CSKT tribal members living on the Flathead Reservation?

Here is a chart summarizing the claims in the compact for your reference.  Click on the photo below for a larger, printable copy:

As you can see from the chart above, the Flathead Water Compact rejected the basic water needs of the individual CSKT tribal members, while at the same time significantly diminishing the amount of water available for use by everyone living in western Montana, including tribal members.

While one could argue that the Appendix 9 water right for Flathead System Compact Water could possibly be used for tribal members, the details of the water right abstract for the claim refute that.  The water is tied to a release of 90,000 acre feet of water from Hungry Horse Reservoir and to the management of Flathead Lake levels.   The purpose of the water right is not for the use of tribal members, as the abstract for the claim says this:

The Confederated Salish and Kootenai Tribes may lease any portion of this water right for use on or off the Flathead Indian Reservation pursuant to the terms and conditions set forth in Article IV.B.6.C. of the water rights compact entered into by the CSKT, the State of Montana, and the United States of America. 

It is also notable that in 2002 Montana determined that 100,000 acre feet of water was available from Hungry Horse Reservoir Water to satisfy future needs for the Kalispell region, however Montana ceded that water to the United States / CSKT in the compact. 

Therefore it is reasonable to argue that the real purpose of the Hungry Horse claim was to impede future growth and development north of Flathead Lake, while at the same time creating a revenue stream for the CSKT tribal corporation government.

Under the Winters doctrine, Federal Reserved water rights are determined by the purposes of the reservation of land, and the date when the reservation was created.  The quantification of water is the amount of water necessary to fulfill the purposes for which the reservation was established.

Back in 2015 when the Flathead Compact was ratified by the Montana legislature, the Montana DNRC and Compact Commission were still pretending that the CSKT water rights settlement was resolved within the context of the Winters Doctrine.

The whole purpose of the Flathead Compact was to quantify and settle the federal reserved water rights for the Flathead Reservation.  One would think that meant the current and future needs of the Indian people would be addressed, however not one page or abstract throughout its 1,500 pages provides for their water needs.    

Who would have thought that the needs of fish would be elevated above those of the Indian people for whom this settlement was intended?

How Much is All That Water Worth?

Let’s keep it simple.  The compact provides for the lease of Hungry Horse water from the tribes for $40 per acre foot as of 2015.  In today’s dollars that would be $50 per acre foot.

While we are not sure that it is possible to place a value on something so vital to life itself, or to the local economy, or the harm being caused to property values through western Montana, by using the $50 per acre foot figure, all of the water in Flathead Lake alone is the equivalent of $940 million dollars.

The $1.9 Billion Settlement for “Damages”

In theory, the compact was intended to be a quantification of the tribe’s federal reserved water rights for present and future uses, in order to provide certainty for everyone in western Montana.

The federal legislation which incorporated the water rights agreed to in the water compact as ratified by Montana, also included a “financial component” to settle with the tribe for all of the perceived harmful effects to the tribe’s water resources for the United States for having the audacity to fulfill Article VI provisions of the Treaty of Hellgate by opening the reservation up to settlement in the early 1900’s.

In addition to all that water, Steve Daines awarded $1.9 billion in settlement money to the CSKT tribal government corporation. 

We do not agree that a $1.9 billion dollar settlement was in order, but we would like to make a few points about it.

If the Daine’s legislation really was a settlement for environmental harm caused to tribal water resources, shouldn’t all of that money, averaging $254,000 per tribal member, have been awarded to individual tribal members on a per capita basis?

We’ve heard rumors that the tribal government may provide a $2,000 per capita payment to tribal members out of the settlement monies. If true, that would amount to less than 1% of the total settlement.

This is far different from the People’s Compact, submitted to Daines for consideration in 2019, that recommended tribal members receive a $47,000 per capita payment for damages, a final and forever resolution of claims, only 529,000 acre feet of water, none of which was outside the boundaries of the reservation.

What is Wrong with this Picture?

We have a compact that identifies no specific water for the use of individual tribal members. The individually owned water rights of the allottees are awarded to the tribal government, and are then diminished along with everyone elses.

The $1.9 billion dollar settlement money will be used to build a state of the art “fishery,” and will not be used to benefit individual tribal members.

When you add in the value of all that water, water that must now flow around all of the people living in western Montana and downstream to unknown out of state interests, it would appear that the tribal corporate government was enriched far more than $1.9 billion dollars.  And it was accomplished upon the backs of the tribal membership, all of the people living in western Montana, and every American whose tax dollars were used to fund a phony water right settlement that benefits “fish.”

How is it that Steve Daines enriched the tribal government with such a massive settlement of water and money, and even threw in the National Bison Range, in a compact that literally has nothing to do with the Indian people?

It is abundantly clear that the Flathead Water Compact was simply a vehicle for something else all together.

Do the terms “transfer of wealth,” “money laundering,” or the “federalization of Montana’s water resources” come to mind?

Something fishy is going on in Montana.