© 2023 Concerned Citizens of Western Montana
Note: This is a repost of an article that was published a year ago. Because we are hearing that consensual agreements are being offered to objectors in at least some of the mediation sessions we felt if was important to reemphasize the pitfalls and dangers of accepting any consensual agreement with the tribes. We have no idea as to which objectors are being offered these agreements.
To the original article we would like to add the following thoughts for you to consider:
Consensual agreements do not modify any provision of the compact. The compact is and continues to be “non-negotiable.”
We would argue that in reality, by entering into a consensual agreement with the tribe pertaining to the Flathead Water Compact, you could unknowingly be agreeing to:
- give your personal consent to the provisions of the water compact
- tribal jurisdiction over your water use
- relinquish your right to go to state courts for any water disputes, or your ability to hold the state accountable for what it has done to its citizens via this compact.
- forever bind your property, and heirs and assigns to the agreement
- the adjudication of your irrigation project water right as part of the Flathead Compact decree
- less water than your historic use, and because the compact proposes to pare down water deliveries based upon “adaptive management,” there is no limit as to how much your water deliveries will be further reduced
We urge any objector considering accepting the tribe’s offer of a consensual agreement to fully inform yourself on the issues associated with such an agreement before you sign it. It is irrevocable and will forever restrict the property rights on your land, and submit future owners of the land to the same terms and conditions.
We are not saying this is in included in the agreements, but we wouldn’t be surprised to find out that such agreements may also give the tribe the right to first refusal when you or your heirs try to sell the property in the future.
Here is the original article posted on July 30, 2022:
Irrigators beware.
The phrase “consensual agreement” appears in the CSKT water compact legislation sixteen times, but like so much of the compact, the underlying historical predicates to such an agreement, and its jurisdictional implications are not addressed, nor were they ever explained to the public in any meaningful way.
Instead, the compact explains that if you have an irrigation water right anywhere within the Flathead Project “influence area” that meets certain conditions, you may enter into a consensual agreement with the CSKT, the United States, and the Project Operator.
Those criteria include water rights:
- whose purpose is irrigation
- whose point(s) of diversion or places(s) of use are within the FIP influence Area, and
- whose source of supply is surface water, or
- whose source of supply is groundwater and whose flow rate is greater than 100 gallons per minute.
In exchange for the privilege of being able to sign a consensual agreement with the tribe, they generously agree to not call your water right, but only if you agree to stringent measurement standards and reporting mandates, with the understanding that if you sign such an agreement, it is “permanent and is binding on the heirs and assigns of the owner of each water right arising under state law who enters into such agreement.”
Read that again. It permanently binds you, your heirs, tenants, other assigns, and we assume future owners of that property to these yet to be determined standards and mandates of the tribe. All that just to keep your water right from being called. Water rights that in many instances, will provide far less water than historically used.
For all intents and purposes, in either their complicity or ignorance, the compacts’ authors, supporters and ratifiers agreed to this additional level of tribal control over the use of private fee land property, should a property owner feel the need to protect their water rights.
To those readers who own valuable Flathead Irrigation Project water rights, some with double and triple duty water, it’s important to understand that the compact essentially stripped your claims of their value by ignoring historic use of water and providing instead a one size fits all “water allowance” that severely limits your water right to an average delivery of 1.03 acre feet of water per year.
This represents an astounding 42% to 74% reduction of water based upon historic usage depending upon your location and duty of water.
An analysis of the water compact abstracts also shows that 89% of Flathead Irrigation Project Water has been designated for fish, and a mere 11% for Irrigation (kind of, sort of, maybe).
Please reference the chart below by clicking on it. The analysis shows historic Flathead Project water deliveries as noted in the 1946 Walker Report compared to those “agreed to” in the CSKT Compact
It’s highly probable that the Compact Commission provisions for Consensual Agreements was also meant to target Secretarial and Walton water rights holders whose claims are located within the Flathead Project Influence Area.
These types of claims are the gold standard of water rights because of their very early priority dates and the volume of water awarded in them. Historically, these water rights in and of themselves, increased the value of land. It can be argued that these water rights are also at great risk of their very existence due to the scope and magnitude of the tribe’s claims.
For that reason, we suppose that in some tortured form of rationalization, the Compact Commission believed that providing an option for consensual agreements with the tribe would somehow be a stop gap measure to fulfill Montana’s publicly stated commitment to “protect existing uses of water.”
So why might people with irrigation water rights located within the Flathead Project Influence area find it necessary to protect their water rights from being called?
Because Montana agreed to award most if not all of the water in the Flathead Project Influence area to the United States / CSKT with a time immemorial priority date. The massive volumes of water, coupled with a time immemorial priority date places all of these water rights at great risk of being called by the tribe.
To put all of this in perspective, the CSKT have publicly claimed that their tribal water rights have suffered from two principal stresses, 1) the construction, operation and maintenance of the project has degraded their natural resources and 2) that ongoing development has substantially diminished reservation riparian and aquatic habitats.
So given their position, how well do you think that irrigation, property rights, or future growth and development will fare under the control of a political and adversarial anti-irrigation and anti-growth tribal government?
What is a Consensual Agreement?
While it may be tempting to consider working with the tribe on a consensual agreement, we’d like to provide you with information that may give you good reason to consider declining their “generous” offer.
Over 30 years ago, the U.S. Supreme Court created two exceptions to the general rule that Indian tribes cannot exercise civil jurisdiction over nonmembers in Montana v. United States, 450 U.S. 544, 565–66 (1981). The first of the two Montana exceptions, also known as the “consensual relationship” exception, establishes that a tribe may regulate the activities of nonmembers entering consensual relationships with the tribe or members thereof through “commercial dealing, contracts, leases, or other arrangements.” Methods of such regulation include “taxation, licensing, or other means.”
Source (web archives): Conducting Business with Tribes
This essentially means that by signing a consensual agreement with the tribe, you most likely are agreeing to submit to their jurisdiction, up to and including going to tribal court for resolution of any disputes.
The tribe is well known for promising to do the right thing, and then reneging on that promise later. For example in 1984, the C$KT tribal council promised through tribal resolution to pay the taxes on Kerr Dam when they acquired it, however they reneged on that promise AFTER their acquisition of the dam in 2015.
See: Tribes Won’t Help Offset Loss of Tax Revenue from Kerr Dam
So what happens if you sign a consensual agreement with the tribe and at some future date you are out of favor with the tribal government, or you disagree on the terms and conditions of the agreement and the tribe decides to ignore the agreement and call your water?
Because the Montana Water Use Act no longer applies on the reservation, you have no recourse through the state courts to resolve or adjudicate this issue, or to recover damages from the tribal default on your contract. That leaves either the expensive United States or biased CSKT Courts as the only venues for litigation.
Keep in mind you signed a contract with a tribal government that you have no rights in, nor are you able to participate.
And then there is the issue of subject matter jurisdiction of the federal courts:
Contracts with Indian tribes should specify a venue for disputes arising from those agreements. A common mistake for attorneys drafting agreements involving tribes is to assume that federal courts automatically have subject matter jurisdiction over matters involving Indian tribes. In fact, the presence of an Indian tribal party in litigation invokes neither diversity nor “arising-under” federal jurisdiction. Contracts often specify a federal court as the venue for disputes, likely because tribal parties sometimes distrust state courts and non-tribal parties may distrust tribal courts, so federal court seems like a neutral choice.
However, experienced Indian law attorneys know that federal courts generally lack subject matter jurisdiction over contract disputes and will summarily dismiss such actions. As a result, litigants may unexpectedly find themselves in state and tribal courts. In fact, state courts increasingly defer to tribal courts when such courts have jurisdiction and may dismiss in favor of tribal court as a matter of comity.
Source: Illusion of Federal Jurisdiction in Tribal Contracts
If this happens, good luck getting a good outcome in tribal court.
The purpose of this article is not to provide legal advice, but rather to try to inform you as to the pitfalls and landmines that have been written into the CSKT compact so that you can decide for yourself the course of action you need to take to protect your water rights from the overreach of the Three Amigo Governments.
At a minimum, we ask you to do your homework before you enter into any agreements with the tribe. Your civil rights and constitutional protections of equal protection and due process under the law, and perhaps even your legal standing may be compromised if you choose to sign on the dotted line.
Thanks for taking the time to read.
Western Montana Water Rights 
Consider the perversion that is now taking place in the context of the water court proceedings.
During the “judicial review” process of a water rights settlement that was sold to the public and the state legislature as having protected “existing uses of water,” the water court is now allowing Consensual Agreements with the tribe to be offered to water rights holders as a means to “protect their uses of water” from the Compact overreach.
The offer of such “agreements” during the proceedings speaks directly to the scope of the overreach that Montana agreed to in the compact.
In addition to compromising the due process protections bargained away with the Unitary Management provisions of the compact, these agreements have the potential to further compromise the due process protections of its citizens.
One could also reasonably conclude that if signed, such agreements could help protect the state from liability for what it has agreed to in the compact.
Not only is the state participating in a process that they must know further compromises the jurisdictional protections of the people affected by the compact, the compact codified it into state law without telling the people about the seriousness of their jurisdictional implications.
If the water court were being honest, it would void the compact for these reasons alone. No need to go any further.
https://definitions.uslegal.com/l/land-patent/
Land Patent Law and Legal Definition
A land patent is a supreme title to land which was originally acquired within the United States of America by a treaty. It grants the rights to the described land under the treaty to the individual person named on the patent and to their heirs and their assigns forever.
The party named on the patent may transfer by inheritance, grant, or assign the patented lands to someone else, which heir or assignee is now named on the patent by that assignment. Assignments are often made by deed, but must be accepted and the grantee must take some action to signify acceptance of the assignment. After accepting the proper assignment of the Land Patent with proper documentation, the transferee is named on the physical land patent where it says, “and to his heir and assigns forever”. It is usually granted by the federal or state government to an individual or private company.
Is it at all possible that if you sign a consensual agreement with the tribe, that its restrictions could end up denoted on your land patent, or were land patents done away with via the compact?
Thanks to Christopher for these additional comments concerning Consensual Agreements with tribes:
Because the Montana Water Use Act no longer applies on the reservation, you have no recourse through the state courts to resolve or adjudicate this issue, or to recover damages from the tribal default on your contract [consensual agreement]. That leaves either the expensive United States [federal] or biased CSKT Courts as the only venues for litigation.
Although this may indeed be called a “contract” in a literal sense if it were between citizens-to-citizens or both non-tribal entities; having a “contract” with a tribal entity — even with an individual tribal member on a reservation — is unpredictable as to legal recourse, with jurisdiction being left to federal or tribal courts. District state courts will demure on the basis of a lack of jurisdictional authority.
Many non-tribal small businesses on the reservation which partnered with tribal members (or entities) have had fall-outs, where that “contract” was defacto erased in favor of the tribal entity (without recourse, defaulting to a tribal court), with the non-tribal party of such agreement being saddled with all the out-standing debt of whatever enterprise. The holder of the debt will understand, or “learn” to understand, that the only recourse for collection of the debt on a reservation is ‘against’ the non-tribal entity, and by which they will direct legal collection efforts in state district courts. This most likely extends to insurance and license liabilities and encumbrances. (We will get back to that.) And these are just a minor considerations.
More poignantly, process against a federally recognized tribe or corporation is a legal fog. Anybody, lawyer of not, can not advise you properly on the consequences of ‘consensual agreements’ (with tribes) as there is a plethora of higher court rulings that are akin to a star burst, going in almost every possible direction, excepting one that might be favorable to a non-tribal (and even a tribal member) entity — a caveat just as applicable to government entities such as county governments.
You, yourself, or you favorite attorney, can research ‘consensual agreements with tribes’ and will most likely come away feeling like you have been through an exorcism, complete with 360 degree head-spins, and projectile vomiting. Yes, it is that bad. If you have an attorney who says this is all nonsense and everything is okay, find another attorney.
There is, at this point, no applicable Constitutional law (it has been waived in favor of tribal law); there is no applicable statutory law — or if there were it also has been waived; and the only ‘law’ — maybe — would be the exorcistic case law that deals specifically with tribes and consensual agreements.
One aspect of the existing case law is its shape-shifting ability, to wit: As you may sign a consensual agreement with specific applicability (say, water), it can imply consent to other aspects of intercourse with the tribe, in related or un-related aspects you might never have fathomed. The exorcistic case law actually imputes that. Such is this foggy nightmare.
If somebody tells you that this is subject to “contract law”, do a spit-take in their face. Unless the contract is adjudicated in a normal (non-federal) court via normal statutory and constitutional law, you are still in the nightmare.
If such as this ever gets to the US Supreme Court, we can look forward to a legal fist fight between Kavanaugh and Gorsuch, and dependent upon the ‘happy swinger’ John Roberts, to eek out a five-four decision. Don’t put too many hopes in Roberts.
In reference to insurance and license liabilities and encumbrances … You should know that the Compact (illegally) has liability immunity. They can not be sued for damages or even deaths, in all aspects of the implementation of the Compact. In signing consensual agreements, it should be noted clearly what additional liberties you are granting to the tribe for access to your properties — irrigation, wells, buildings, etc. You should even be concerned about shape-shifting items that are not specified in the agreement (slippery case law).
Though the tribes are immune, you are not. Non- workers-comp contractors and sub-contractors of the tribe on your properties, or any damages or injuries on your property, put you at risk for suit, putting your property, farm, home, livelihoods at risk. It would be your responsibility to certify contractors on your properties, and you must retain the right to reject non- workers-comp contractors on your properties. It would be wise to film all tribal activities on your properties, and functioning as your own supervisory general contractor. Check your insurance policies.
Insurance agencies will have another market segment open up to them, for any tribal machinations on properties.
Are you signing a pig in a poke?
Thanks for writing it. Worth the read.
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