June 15, 1908 Letter to the Chiefs of the Flathead Tribes of Indians

Article VI of the Hellgate Treaty provided for the Opening of the Reservation to Settlement

Article VI of the treaty of Hellgate provided for the allotment of lands to Individual Indians and opening any surplus lands to settlement as follows:

ARTICLE VI. The President may from time to time, at his discretion, cause the whole, or said portion of such reservation as he may think proper, to be surveyed into lots, and assign the same as such individuals of families of the said confederated tribes as are willing to avail themselves of the privilege, and will locate on the same as a permanent home, on the same terms and subject to the same regulations as are provided in the sixth article of the treaty with the Omahas, so far as the same may be applicable.

The sixth article of the 1854 treaty with the Omahas included this language:

……..And the residue of the land hereby reserved, or of that which may be selected in lieu thereof, after all of the Indian persons or families shall have had assigned to them permanent homes, may be sold for their benefit, under such laws, rules or regulations, as may hereafter be prescribed by the Congress or President of the United States. No State legislature shall remove the restrictions herein provided for, without the consent of Congress.

The treaty clearly says that the United States could provide for “individual homelands” in the form of allotments to individual Indians and open the surplus lands to settlement. The opening of the reservation to settlement was the United States fulfillment of the terms of the treaty.

Tribal Opposition to the Opening of the Reservation

We have often heard that the tribe opposed the opening of the reservation, and it is a fact that between 1907 and 1911 , the leadership of the Flathead Indian Tribe wrote several letters to the United States opposing the opening of the reservation.  

In researching this issue for a very long time, the tribe’s opposition to the opening of the reservation has often been cited as though it is some sort of tortured excuse or validation for what the tribe is doing to its fellow United States citizens (both Indian and non-Indian) with the Flathead Water Compact today.

Indeed, the CSKT and Steve Daines are doing all they can to erase the Flathead Allotment Act from the historic record via the confiscation of western Montana water in the compact.

The compact proposes to give U.S. and CSKT most if not all of the water in western Montana, along with complete control over it, and with absolutely no oversight by the state of Montana. If the compact stands, it is simply a generation or two before all of the land in western Montana will be restored back to the CSKT.

The United States Response to the Tribes’ Opposition

For purposes of beating the compact back we often think that one of our most powerful weapons is to seek out official United States documents and use their own words against them. 

In this instance, we can easily see that the United States once stood for what it thought was best for all of its citizens, not just a select few.

Until today, we’ve never had any inkling as to the United States’ response to the tribe concerning their opposition to the opening of the reservation.  

On June 15, 1908, the Department of the Interior responded to one of the many tribal opposition letters sent as follows.  This letter was sent to the Chiefs of the Flathead Tribes of Indians Through the United States Indian Agent, Flathead Agency, Jocko, Montana:

Dear Friends,

The office is in receipt, by reference of the Secretary of the Interior, of your position of May 31, 1908, address to the President, protesting against the opening of the Flathead Reservation for settlement.

You say in your petition that by the terms of the treaty of July 16, 1855, (12 Stat., L. 975), the reservation on which you now reside was to be reserved for the Indians residing thereon, as long as there were any such Indians; that you do not want the reservation opened to settlement, but want the land to remain as a reservation for the use of the Indians in common.  

In response, you are advised that, in the opinion of the Office, the treaty referred to contains no provision to the effect that the lands on this reservation shall remain as a reservation for the use of the Flathead Tribe of Indians in common.

In this connection, your attention is invited to a part of an opinion by the Supreme Court of the United States in the case of Lone Wolf vs. Hitchcock, (176 U.S., 553-566), reading as follows:

The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so.  When, therefore, treaties were entered into  between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians.  In United States v. Kagama (1885) 118 U.S.375, speaking of the Indians, the court said (p362):

After an experience of a hundred years of the treaty making system of government, Congress has determined upon a new departure – to govern them by acts of Congress.  This is seen in the act of March 3, 1871, embodied in 2079 of the Revised Statutes: “No Indian nation or tribe, within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe or power, with whom the United States may contract by treaty; but no obligation of treaty lawfully made and ratified with any such Indian Nation or tribe prior to March third, eighteen hundred and seventy nine, shall be hereby invalidated or impaired.”

From the foregoing it appears the even if the treaty of July 16, 1855, should have contained a provision reserving the reservation in common for the use of your tribe of Indians, the power would still remain in Congress, by subsequent legislation, to abrogate a provision of this character.  

The Office desires to suggest, that the loss, if any,  resulting to the Flathead Tribe of Indians, by reason of having their reservation thrown open to settlement is more than fully compensated by the inestimable benefits derived from the effect of civilization and contact with the settlers, resulting from the opening of this reservation for settlement.  

You should look upon this as a distinct gain to the Individual members or your tribe, rather than a loss.

Very Sincerely, 

Acting Commissioner

Click here for a copy of the above letter, found amongst the Montana Memory Records found on line.

ABROGATE ăb′rə-gāt″

• To abolish summarily; annul by an authoritative act; repeal.
• To keep clear of; avoid.
• Synonyms Abolish, Repeal, Rescind, etc. (see abolish), cancel, invalidate, dissolve, countermand.
• Annulled; abolished.

So why are we dealing with an Indian water rights settlement more than 100 years down the Flathead Allotment Act road?

Here is another response letter as well.  Letter 12/21/1907