Flathead Compact: Disconnecting Water from the Land

© Concerned Citizens of Western Montana

Would you knowingly purchase land or real estate if you knew that it had no appurtenant water rights because the state in which it is located had agreed to retroactively give a tribal government ownership of all the water flowing through, over and under land it does not own and no longer has rights to? 

Would you be willing to purchase such property if you were promised that the “compact deemed” tribal government owner of all the water on your land might allow you to use some of their water, but only under their terms and conditions?

Would you purchase a property that is bound by a private “consensual agreement” that a previous owner had signed with the same tribal government, forever binding the property to the restricted use of water and terms and conditions that can be changed at will by a tribally controlled water management board?

We would like to think the answer to these questions is a resounding HELL NO.

Yet all of this this is what the Flathead Water Compact retroactively does to private property throughout western Montana. 

We believe that every area in western Montana that is upstream of the tribe’s water rights both within and outside of the reservation will necessarily end up falling under the auspices of what will ultimately become a very aggressive water management board.  There is little doubt that it will aggressively challenge all uses and changes of water use that are perceived to affect the tribal water right in any way, up to and including “water quality.”

This nicely named Flathead Water Management Board also known as the Grand Bargain was established “To protect the unique federal attributes of the tribe’s Indian reserved and aboriginal rights.”  See: CSKT 2001 Proposal for Settlement.  The board is necessary because the tribe was awarded ownership of most if not all of the water in western Montana in the compact. There is absolutely no way that the tribe would allow Montana to have one iota of jurisdiction over their water. 

See The Fraud of Tribal Reserved Water Rights.

The compact speaks for itself. Its hundreds of complicated water rights abstracts are meant to be confusing and difficult to understand, and may very well be unimplementable. 

Adding to that is the outright deceit and fraud perpetrated upon the people by Montana’s consistent refusal to publicly prove that it didn’t give away all the water to the United States by providing the public with:  

1) a quantification of the amount of water awarded to the United States / CSKT in the compact,

2) the physical amount of water existing in western Montana, and

3) how much water has already been spoken for by state based water users.

Access to such information is the only way we can know for certain how much “surplus” water exists for future and existing uses of water in a “post” water compact scenario. 

It is a given that Montana has absolute control and jurisdiction over all of the “surplus” water in western Montana. Because the State ceded its jurisdiction over the water within reservation boundaries and built into the compact provisions to “protect” some state based water uses, but leaving all irrigation uses throughout western Montana at risk of call by the tribe, we know the state gave away its surplus water.  Coupling this with the State’s willful omissions and subsequent actions confirms to us that our state gave ownership of more water than exists in western Montana to the United States / CSKT. 

How is that possible that Montanans will be deprived of water in a state with so few people and an amazing abundance of water?  

WE CAN’T SAY THIS LOUDLY ENOUGH:  Not only does the compact ensure there is there no surplus water for future uses, it also purports to “protect” some (but not all) existing state based water uses, because it gave that water away as well.

Closing an Opened Reservation?

Taking this one step further, we have a couple more rhetorical questions:

Does anyone think that the homesteaders that came to western Montana more than a century ago at the invitation of the federal government would have purchased land, and done the backbreaking work of clearing and making it productive had they known that the water on their land would forever belong to the tribes? 

Did the newspapers back in the day warn homesteaders that the lands ceded by the tribes to the United States decades earlier and opened to settlement somehow were ceded without water because the tribe forever reserved all of the water that is appurtenant to them?

Do the patents for land issued by the United States specifically exclude water as an appurtenance to it?

Of course, we know the answers to these questions. 

Had homesteaders known that the tribe would have owned the water rights to their land, or that the United States’ invitation to settle in western Montana was under false pretenses, they would have steered clear of Montana and other western state for that matter.

Things are no different today.

Here is an example: 

A family purchased their home with irrigated acreage nearly two decades ago.  At the time, their realtor told them that the Flathead Reservation was the only open reservation in Montana and  property ownership was the same as everywhere else in the country giving owners fee simple title to their land. 

According to the  Cornell Legal Information Institute: 

A fee simple is the greatest possible property interest in land, granting its owner all traditional property rights. Because a fee simple interest stretches out in time forever, there can only be one fee simple at a time for any given chunk of land. Traditionally, transferring a fee simple required a deed with the words “to X and their heirs.” In the modern day, there is a presumption that a fee simple is transferred unless the text of a grant specifically indicates a lesser interest is transferred instead.

These purchasers were also told by the realtor that the land had appurtenant water rights and indeed, it had irrigation project water rights and a well.  A very small piece of paper mentioning the negotiation of a water compact was included in the closing packet, but no discussion of it took place, and the realtor made no special point of notifying the purchaser of the significance of the compact.

Whoever would have thought that a few short years later that the Attorney General for the state of Montana would hire a “constitutional expert” to declare:

“Property oп 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 bе subject to different rules that mау not otherwise аррlу if they lived off the Reservation, especially оп issues surrоuпdiпg water use.”

See Plausible Deniabililty

Adding to this insult by the state is the fact that the property owners discovered their property carried something called a “deed to Restricted Indian Land.” When querying the title company about it, they were told that a deed to restricted land is the same as any other deed, and suggested that they contact the tribal “land title records office” for the missing land title timeline.  Additionally, upon closer scrutiny the landowners discovered that their title insurance has the following exclusions written into it: 

6. ….. (b) reservations or exceptions in patents or Acts authorizing the issuance thereof, (c) Indian treaty or aboriginal rights, including but not limited to , easement or equitable servitudes; or, (d) water rights, claims or title to water;……..

Since hindsight is 20-20, one can’t help but wonder if the “different rules” referred to by Attorney General Tim Fox might include such things as a fraudulent compact, fraudulent time immemorial “tribal reserved” water rights and fraudulent land title, and worthless title insurance not worth the toilet paper it was written on?

Stripping Appurtenant Water from the Land

In Montana’s prior appropriation water rights doctrine,  water rights are generally considered to be “appurtenant” (attached) to the specific property where the water use is authorized.  When property is sold, water rights are typically conveyed with the sale of property unless they are specifically excluded from the property transaction deed.

Because the Flathead Compact failed to quantify the tribe’s water rights, placing limits upon them if you will, there is no way for people to know the effect it will have on their water rights now, and certainly not into the future.

This is exactly the uncertainty that the compacting parties wanted needed, for the purpose of getting the compact through the water court proceedings. 

Do not underestimate the fact that the compacting parties are counting on the fact that their omission of a bona fide quantification of the compact claims will make it extremely difficult for objectors to show the Water Court by a preponderance of the evidence the damage the compact will have their property rights. 

Contributing to this problem is the complexity of the compact documents and the abstracts of water rights.

The Deed Trumps All?  It depends upon what the definition of ALL is.

In December 2019 comments made to the Water Policy interim committee, attorney and avid Flathead Compact supporter Krista Lee Evans said this:

The deed trumps all. The statutes are clear that if the deed is silent the water transfers with the property. Entities that think that filing an ownership update form with DNRC transfers the water right are not correct. I would recommend working with the legal profession and the Title companies to improve education on this point.

She goes on to say: 

You are positive you own water rights, but a search of the Montana Department of Natural Resources and Conservation website does not list any in your name or your ranch’s name.

Does this mean you don’t own any water rights? Did you lose or forfeit them?

The good news is that you probably do still own water rights but finding the right record could be a different story. For example, the record for your water rights may have a misspelling, or the ownership was not updated when the land was transferred. Thankfully, in Montana water rights are appurtenant to the land where they are used, meaning when land is sold, the right to use water on the land automatically transfers to the new landowner.

The deed to the property we mentioned above was silent about the water.  Does this mean that the water rights transferred to the new landowners when it was purchased from a tribal member, or are the property rights to that land subject to the Tim Fox Special Indian Property Rights Rules?

Private Property Ownership is Under Attack Everywhere

It is becoming more and more difficult to look at the details within the water compact, and to not connect them to what clearly is taking place all over our country. 

The ownership of private property is under attack everywhere.  While the overreaching issues in the compact are not a mirror image of what is happening in other parts of the United States, they are still in common in the fact that they contribute to the impediment and destabilization of private property ownership.

If the federal government’s actions (or inaction) continue to go unchallenged by the American people, government will be empowered to continue ushering in the destruction of our way of life, our ability to determine the food we eat and where we can live. It’s becoming far easier to see that the “government” is on track to restrict the freedoms we have enjoyed over our lifetimes.   

Through the Flathead Compact, the United States is exploiting an “Indian” water rights settlement to undo more than century of law pertaining to the Desert Lands Act, the 1887 Dawes General Allotment Act, the 1904 Flathead Allotment Act, and perhaps even the Enabling Act that created the state of Montana.

If successful, it will effectively have restored to the United States, the water resources held on privately owned lands that were opened to settlement more than a century ago. 

We have little doubt that the end game is to ultimately restore the lands from which the water was taken back to the United States via the tribes as well.

The compact and its associated Daines legislation are little more than an ex post facto manipulation of the law so as to effectuate a “consent decree” negotiated taking of Indian water rights to the tune of $2 billion dollars and counting, rather than the actual taking of non-Indian and allottee water rights that have been pulled out from under the land in the compact.

This is accomplished by allowing three governments to negotiate an agreement that proposes to retroactively give time immemorial water rights to all of the water appurtenant to non-trust reservation lands to an unaccountable tribal government that is intent on the restoration of all of the tribe’s 1855 ceded lands back to tribal ownership.

If the Indian people think that the United States will allow them to restore back to themselves what they ceded to the United States in their treaty, they are sadly mistaken.

Perhaps the time has come to have an honest discussion about something called the “tribal inheritance.” Someday the CSKT membership will awaken to the fact that in 1934 their “inheritance” was squirreled away from individual Indians and given to their tribal government corporation instead. 

Perhaps they should consider where the billions upon billions of dollars flowing through the tribe are going because we certainly don’t see the individual Indians benefitting from such government largesse.  Nor will their heirs unless they happen to be tribal council members.

But that is a different story for another day.