Looking Forward by First Looking Back

© 2023 Concerned Citizens of Western Montana

Note:  Despite the fact that mediation related to the Flathead Water Compact Preliminary Decree is still ongoing in the Montana Water Court, we are beginning to think beyond that to the hearing track of the proceedings.  This article is not specific to the water court proceedings, but is mindful of those of you who will soon be preparing to go to the hearing track, and to any readers that are new to this issue that aren’t familiar with the history of this amazing place.   Let’s never forget, this is our home too.

It’s been one of our goals from the beginning of our Flathead Water Compact journey to gather the historic record of the Flathead Reservation, to better understand it, and to preserve as much of it as we could.  This is because it was abundantly clear to us that the compacting parties had literally revised and distorted the historical record of the Flathead Reservation for their own selfish ends of compact ratification and implementation.  

All three government parties to the Flathead Compact and Montana’s Congressional delegation have worked diligently to rewrite our history, including the tribes’ Treaty, and even federal and state law pertaining to the reservation via the Flathead Water Compact.  Despite their efforts to inundate us with revisionist history, the documents themselves stand in testimony to the truth and explain exactly why the compact is unlawful and fraudulent.  They also lay bare, all of the lies and deceit that the compacting parties found necessary to move their horrible compact settlement closer to the finish line.

It is not possible for the three amigo governments to erase us from western Montana unless we let them.  We can prevent that from happening by working together to defeat this compact in its entirety and replacing it with a bona fide federal reserved water right settlement that respects the needs of the Indian people and provides a final resolution to the tribe’s water rights so the people of western Montana can have certainty with respect to their own water rights.

In addition to subverting the complete history of what the United States conveyed to settlers as the “former Flathead Indian Reservation”, the compacting parties also deceitfully used out of context statements in legal cases to advance their artificially created “legal” arguments for their water compact transfer of wealth and overreach.

If allowed to stand, the compact will use the federalization of Montana’s amazingly clean and abundant water to tear all of that rich history apart by effectively reversing the Presidential opening of the reservation and western Montana to settlement.  It will also make people’s land patents meaningless pieces of paper.

Believe it or not, there was a time…….

Believe it or not, there was a time when the Confederated Salish and Kootenai Tribes weren’t interested in off reservation water, or all of the water flowing through, over and under the reservation, let alone all of Flathead Lake.

Time immemorial tribal reserved water rights did not exist until the compacting parties “invented” them in the compact,

See:  Off Reservation Claims:  It’s Not Complicated

There was also a time that the United States was working within the confines of the Winter’s Doctrine, and declared so in 1979 when it filed several lawsuits around the state for their “federal reserved water rights.”  Federal reserved Water Rights are meant to be for a discrete amount water necessary to fulfill the original purpose for which a federal reservation of land was created by the United States.

1979 was also a time that Congress actually cared about the overreach of its federal agencies and after these lawsuits were filed throughout Montana (we believe in an effort to pre-empt the state’s adjudication of federal reserved water rights), the Senate held field hearings throughout the state of Montana, including one in Ronan to allow people to testify about their concerns and to discuss the lawsuits as well as to ease the concerns of the thousands of people and entities that were filed against.

See:  Off Reservation Cognitive Dissonance

Prior to the CSKT submitting their 2001 framework for “negotiations”, there was a time that all three of the compacting parties were working toward a true federal reserved water rights settlement for the Flathead Reservation. Legislative intent and the historic record shows that federal reserved water rights  were the only kind of settlement the compact commission was authorized by the legislature to settle. Although the state pushed back on the tribe’s proposal for a while, shortly thereafter the Compact Commission agreed to every unreasonable demand made by the tribe, and presented a compact that rejected “federal reserved water rights” and instead inserted fraudulent “tribal reserved water rights” into the settlement   

See:  Why Didn’t Montana Call off Negotiations?

                 State’s Quantification of water rights in the Flathead Compact

         Tribal Reserved Water Rights in the Compact

And there was a time when Montana stood solidly behind the Winter’s Doctrine and defended the people of Montana against the efforts of the CSKT to stop the state from revising the Montana Water Use Act to adjudicate the federal reserved water rights for all of the federal reservations in Montana, including the tribes.

Unfortunately somewhere along the line Montana felt it was more important to have a water compact than it was to assert its jurisdiction over the water of western Montana. In 2015 Montana ceded and relinquished its constitutional duty to administer the water of 30,000 of its taxpaying citizens in the Compact, and gave it instead to a tribally controlled board.

See:  Montana’s Ceded Territory

There was a time when the United States created the Indian Claims Commission to bring an end to, and a final settlement of  tribal grievances, yet we are still dealing with the same long ago settled grievances today. The historic record is clear that in the Indian Claims Commission, and the United States Court of Claims, all but one of the tribe’s grievances prior to the1950’s were resolved, most with monetary settlements.   

Upon receipt of those settlements, the tribe was required to sign a stipulation agreement that precludes them from going after the land and water in their aboriginal territory, and also from claiming water via the 10,000 claims covering 2/3 of the state of Montana. These monetary settlements also extinguished the tribe’s aboriginal title to all of their off and on reservation ceded lands that they were paid for, and the water that exists upon them.

Notwithstanding most of these settlements are more than 50 years old, the parties to the compact willfully ignored that settled history and gave the tribe billions of dollars in additional “settlement money.” AND ownership of most if not all the water in western Montana. 

If indeed there was any taking of the tribes water (there wasn’t), the tribe should have been paid for it as part of this so called settlement.  However, in what kind of universe do you ratify a settlement that fails to quantify the tribes’ water needs and instead returns everyone else’s water back to the United States / CSKT, in addition to the multi billions of dollars the tribe received in the settlement? 

What in the world was Montana thinking?

See:  Docket 61:  The CSKT Off Reservation Aboriginal Title Clam

There was a time that the United States cared about the original intent for the Flathead Irrigation project and denied the tribe’s request to manage the Flathead Irrigation project via a 638 contract because the project was created for the benefit of both the tribe and the settlers. 

All of that history meant nothing when the compacting parties agreed to give the CSKT bare legal title to 100% of Flathead Irrigation Project water despite the fact that 90% of the lands served by it are owned by non-Indians.   Instead the compact carte blanche gives the tribe control over the irrigators via their substantially reduced water deliveries.

See:  Denial Letter

Our Articles Often Link to Historic Documents and Records

This post is intended to help those of you who may be interested in the history of the reservation, and the water compact issue to get started.  As articles are written we do our best to try to link to documents, or earlier articles that have links to documents that can help give you the historical context you may need to better understand the serious issues we are dealing with.  Our goal is not to overwhelm you, but to provide you with important historic context should you want to look at it.

In addition to that, over the years we developed a library of information that may be helpful to you as you begin to think about the hearing track of the water court proceedings.

On the top of every page in the blog you will see a list of pages across the top, including our LIBRARY.  On that page you can click on the table of contents links to go to the documents related to a particular subject, or you can scroll down the page to get a feel for the information that is available.  

The library of course is a work in progress, and cannot possibly include the entire history of the reservation.  Things are frequently being added to the library as new information and documents become available to us.

Because over time, links on the internet tend to disappear or documents are scrubbed, we try to upload the files onto the blog and link to them so we know they are intact and available for your use and reference.

If you have any important documents you’d like to have us add to our library, we encourage you to submit them, or let us know about them via the CONTACT page of the website.  If it’s possible to do so, we will do our best to get the information out there for people to have access too. 

We are also working on a new page that will be introduced closer to the hearing track.  We are trying to pull together helpful information for people that are planning to represent themselves in the water court pro se.  We will let readers know when its ready for readers to have access.

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