Another Stipulation to Ignore?

© 2023 Concerned Citizens of Western Montana

Note: We realize that many of the issues we discuss on this blog are complicated and difficult to understand.  We apologize for our own limitations with respect to not being able to simplify it for you.  Indeed, the compacting parties intentionally wanted to make the compact difficult to understand, making it easier for them to develop a water compact that is built upon fraudulent tribal reserved water rights. And unfortunately the fraud seems to carry on through the water court proceedings. 

Over the weekend, we found a document on the water court website simply called STIPULATION.  It’s name peaked our curiosity so we took a look at it.  

As it turns out, the document is  denoted as a STIPULATION OF WITHDRAWAL OF OBJECTION AND STATEMENT OF NO CALL BY THE CONFEDERATED SALISH AND KOOTENAI TRIBES OF THE FLATHEAD RESERVATION, STATE OF MONTANA AND UNITED STATES.  A copy of it can be found at STIPULATION link above. Although it is a public document, we excluded the objector’s abstracts of water right that are attached to the water court document. 

The objector has two off-reservation water rights, neither of which is an irrigation water right. 

Of course the mutual defense provisions of the compact kicked in and all three parties iterated to the objector that according to  ARTICLE III G. 1 of the compact, the tribes and United States agreed not to exercise the water right found in the Preliminary Decree to make a call against the water rights of the objector described in Paragraph three and will not seek to do so.  The State concurred.

In exchange for that “official” statement, the objector withdrew their objection.

We are writing about this stipulation agreement, because this is a perfect example of the fraud that is being played out with this water compact.  There truly is nothing good faith about what the compacting parties are doing. 

Let us explain.

Fraud #1: The compacting parties cannot protect your water from being called

The problem here is that the compact is the overreach, and the compacting parties cannot possibly promise to “protect any existing use of water” from it.  

Sure they can promise not to call your water like this stipulation agreement says, but in fact, it is little more than an empty promise.   This is because  they cannot prevent a water user that they do call from in turn calling your water.  Let’s call it a secondary call, that is directly related to the overreaching claims in the water compact. Indeed a domino or fire cracker effect could very well result from even one tribal call, because of the vast amounts of water awarded to the US CSKT in the compact that carry time immemorial priority dates.

The  chart below was compiled directly from the information on the water abstracts in the appendices to the compact.  Please note the volume of water, their priority dates and their Purpose.  Note that nearly all of this water is intended for fish and wildlife, none of it is specifically for the Indian people.  The beneficiaries of all that water are the United States, the tribal government, and fish, to the detriment of everyone else.  

In comparison, approximately 25 million acre feet of water flow out of the state of Montana each year.  This means that compact cedes to the United States / CSKT the use of more than twice the amount of water available in western Montana.  This is possible because the compact often claims two or more reaches of any given stream or river for the purpose of exerting maximum control over the water uses, and to prevent development.  The compact also links all of this surface water to the groundwater for maximum negative effect: 

The parties to the compact fully understand that the compact is intended to cause harm to irrigators, and indeed, the compact as well as the abstracts specify that only irrigation uses of water will be called.  (Isn’t that discriminatory?)

They also understand that it doesn’t matter at all if the tribe pinky promises not to call non-irrigation uses of water.  Indeed, they are probably laughing at any objector that buys this line of BS.  

The way a water call works, the tribe only needs to call one large irrigation water right and it will be the irrigator, probably with a senior priority date, who in turn could call this objector’s water right.

Who will be the bad guy in this situation? 

Of course the process makes the irrigator the bad guy for calling their neighbor’s water, when indeed it was the “tribal reserved claims” in the compact that would be responsible for the call in the first place.

See: Don’t Fall for the Lie: Our Wells are Not Okay

Fraud #2: The tribe is legally precluded from claiming off reservation water but the compacting parties agreed to them anyway

The terms if the tribe’s 1966 off reservation Indian Claims Commission settlement legally precludes the tribe from claiming any off reservation water right claims in the compact.

In essence, the objector referenced in this article unknowingly gave up their right to object to what is a fraudulent tribal reserved water rights claim that should never have been agreed to in the compact.

Docket 61: Indian Claims Commission

The historic record shows that the compacting parties ignored the stipulation agreement signed by the CSKT tribes in 1966, when they accepted a $4.4 million dollar settlement from their 1950  Indian Claims Commission lawsuit pertaining to their off reservation ceded lands:

In 1950, the CSKT filed a petition with the Indian Claims Commission related to off reservation lands ceded to the United States in the 1855 Hellgate Treaty. The petition claimed that the payment given to the tribe for the off reservation ceded lands was unconscionable.  This petition became docket number 61, and was referred to as the CSKT Indian Title or Aboriginal Title Claim. 

Between 1959 and 1965, the court went through an intensive land classification and valuation process that included appraisers from both sides.  It is abundantly clear that the valuation of the land undertaken by the court assessed the lands with the value of the water that was appurtenant to them. 

After consideration of the facts presented, the Commission determined that the consideration paid to the tribes by the United States was unconscionable and the tribe was entitled to recover $4.7 million, less whatever offsets the U.S. was entitled to under the Indian Claims Commission Act.

In 1966, the CSKT Tribal Council unanimously voted to accept the proposed settlement by passing Tribal Resolution 1977, APPROVING AND ACCEPTING THE OFFER TO COMPROMISE AND SETTLE THE ABORIGINAL TITLE CLAIM OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES, DOCKET NO. 61 INDIAN CLAIMS COMMISSION.

Because the Indian Claims Commission was created for the purpose of providing a final resolution to tribal grievances, in order to receive their settlement, the CSKT was required to enter into a stipulation agreement for final judgment that included the following language:

“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.”

This stipulation agreement was part of the official Indian Claims Commission court proceeding.  A copy of the stipulation agreement can be found at this link.

For additional details and information, see Docket 61:  The CSKT Off Reservation Aboriginal Title Claim

Having been parties to the Indian Claims Commission lawsuit and settlement, the United States and CSKT absolutely were aware of the tribes’ stipulation agreement.  They know that the tribe is precluded from going after any 1) off reservation claims which were asserted in the case and 2) any claims that could have been asserted. 

If Montana didn’t know about the agreement, it is either negligent, otherwise it chose to willfully ignore this legal preclusion against any off reservation claims, aboriginal or otherwise.

Therefore, the signing of that “official court mandated” stipulation agreement made no difference to the compacting parties when they developed the Flathead Water Compact. 

What makes anyone think that in the future the tribe will honor this stipulation agreement, or even any consensual agreement that the tribe has made with irrigators pertaining to this compact for that matter?

The compacting parties gladly ceded vast amounts of off reservation water to the tribes in the compact, including 100% of the water in Flathead Lake.

The objector withdrew their objection to a compact that could not legally have gone after off-reservation claims in the first place, and cannot possibly be protected from call as noted by Fraud #1.

Fraud #3 Tribal Reserved Water Rights do not exist

We want to remind readers that this compact was supposed to be for the settlement of the Federal Reserved Water Rights specific to the Flathead Reservation.   Federal reserved water rights are for a discrete amount of water necessary to fulfill the purposes for the federal government reservation of the Flathead Reservation.  These water rights are supposed to carry a priority date of 1859.

There should be no water rights in the compact pertaining to private lands within the boundaries of the Presidentially opened Flathead Reservation, and there should be no water rights in the compact for water outside of the reservation boundaries.

The compacting parties effected a reserved water rights bait and switch by inserting fraudulent “tribal” reserved water rights into the compact while repudiating the “federal” reserved rights they were supposed to have in it.

See: The Fraud of Tribal Reserved Water Rights.

Objectors need to read and understand this fraudulent insertion of tribal reserved water rights into the compact before they get to the hearing track of the proceedings.  Objectors: Please don’t be fooled by impossible promises by the compacting party to protect your water rights from call.  There has been nothing good faith about these proceedings, and we guarantee that none of the compacting parties are looking out for your interests. 

The three amigo governments’ sole purpose at this point is to defend the compact against all challenges to the compact, and to get the damn thing approved by the Water Court.

Montana is a state that seemingly doesn’t want to be a state.  It didn’t even care to look after its own interests, let alone those of its citizens.

The only thing that will protect your water right at this point is to stay in the water court proceedings and convince the water court to void the compact.  We need to let the tribe’s claims go into the adjudication process along with everyone else’s claims. 

This is the only way that this compact will be fully exposed for the fraud that it is.

And after that, the people who developed, ratified, and are currently implementing this monstrosity must be held accountable for their actions.