GOT WATER? HOW ABOUT THE RIGHT TO USE IT?
The issues discussed throughout the pages of this blog arise from problems created or advanced by the Federal Government, the State of Montana, and the Confederated Salish Kootenai Tribes elite and their attorneys. Not individual tribal members.
They also stem from the willingness of the state of Montana to cede its land and water resources, and its constitutionally mandated responsibilities and jurisdiction over water to the United States and CSKT tribal governments under the guise of an “Indian water settlement.”
This blog was established because our local traditional media stifle public discourse and debate on these very serious issues. They choose to ignore our precarious position by failing to seriously look into Federal Indian Policy run amok, refusing to print opinions and letters that differ from their own personal views, or worse yet, “censoring and revising” letters ahead of their publication.
Sadly, we all have lost the significant history of this very special place, and the actions of our respective governments have created the strife and divisiveness that now exists within our families and communities.
It is our sincerest hope that you find this website helpful in your journey to stay informed about the Flathead (Confederated Salish and Kootenai Tribes) Water Compact. It is brought to you by Concerned Citizens of Western Montana and is a collaborative effort.
We appreciate your opinions, concerns, comments, and suggestions. You can reach us via the CONTACT page, or comment on any post or page.
Throughout the pages of this blog the use of the term tribe is intended to mean tribal government, not individual tribal people, many of whom are our friends and neighbors.
You can FOLLOW the blog by scrolling down the left side of this page and clicking on the gray FOLLOW button. Just type in your email address and you will be notified each time a new post has been added.
Perhaps with the help of your eyes and others focusing on this problem, we can bring forth solutions for impactful and positive change concerning this most serious issue. Heaven knows our governments have not done so.
Montana is unique in its efforts to settle federal reserved water rights. In 1979 the state legislature created a compact commission allowing for political appointments to a commission that was given the authority to negotiate federal reserved water rights settlements with the federal government and the various Indian tribes in the state.
At the time, the CSKT and the federal government fought this approach, arguing that the state could not adjudicate the tribe’s water rights fairly. Little did anyone know then, they were almost correct, however it was non-Indian water rights and Constitutional protections that would ultimately be compromised by the state in their effort to settle with this tribe.
The current iteration of the Flathead Compact was completed in January 2015 and consists of roughly 1,500 pages with the appendices and maps.
All compacts were supposed to QUANTIFY the federal reserved water right for each federal reservation of land. The Flathead Compact is the only Montana compact that does not provide a quantification of the amount of water necessary to fulfill the purpose of the reservation.
Montana failed to provide this and other information to legislators or citizens because they knew that the compact would not have been ratified if legislators knew and understood what the State was willing to cede to just one of the seven tribes located within its borders.
When asked about the missing quantification, the state referred the public to the hundreds of water rights abstracts in the appendices to the compact. We took up that challenge, and from our research, we estimate that between 28-48 million acre feet of water per year were ceded to the United States / CSKT in this compact. This amount is four times greater than the volume of water awarded to all other tribes in the United States combined thus far. It is also 145 times greater than the tribal average as noted on the chart below:
Note: Although we tried to participate in the legislative process through our state representatives and other elected officials, we were unaware that state, tribal and federal governments had already aligned to force its ratification through the Montana state legislature using whatever means necessary. Governor Steve Bullock artfully orchestrated a simple majority coup within the Montana legislature to force their controversial, flawed and illegal legislation over the finish line. By changing house rules they ensured a fraudulent simple majority cram down in the 2015 Montana legislature.
As of March 2020, it has not yet been ratified by Congress or the Tribes, however Senator Steve Daines has introduced S.3019 into the Senate Committee on Indian Affairs. SB262 is the heart of the Daines’s Compact, and his support of it is a conscious decision on his part to support federal overreach, to the detriment of the people he is supposed to represent.
Why So Much Water for the CSKT?
It’s Built Upon Flawed Historical and Legal Assumptions
Keep in mind that the Flathead Indian Reservation is the only “open” reservation in Montana, opened by Presidential Proclamation in 1909, and 90% of the population is non-Indian.
Montana allowed the Flathead Compact to be predicated upon a flawed and legally incorrect definition of the reservation, paving the way for an expansive taking of water and jurisdiction over it within reservation boundaries. In it, the Flathead Reservation is defined to include: “all land within the exterior boundaries of the Indian Reservation established under the July 16, 1855 Treaty of Hellgate, notwithstanding the issuance of any patent, and including rights-of-way running through the Reservation.”
Both Indians and non-Indians that own and live on private fee land within the external boundaries of the former reservation should pay close attention to this definition, because it includes your property.
This flawed premise is used to rationalize giving all water running through and under the reservation to the CSKT tribal government, to the detriment of private land owners, and with little or no benefit to individual tribal members.
It Ignores History and Then Attempts to Rewrite It
Both the state and federal legislation for this compact ignores the fact that the United States opened the reservation to settlement in 1908, as articulated in Article VI of the Treaty of Hellgate. The vast majority of people living within the boundaries of the former reservation today are NON-INDIAN. Additionally, many CSKT tribal members carry a mere 25% blood quantum, making them essentially non-Indian, but acceptable for the purpose of membership in the CSKT federally chartered tribal corporation.
The proposed compact also ignores other court ordered settlements with the tribe through the Indian Claims Commission and U.S. Court of Claims, that were related to the entirety of the tribe’s ceded lands.
The terms of those settlements preclude the tribe from going after any additional damages throughout their ceded territory. In order to receive their settlement monies for these claims, the tribes signed a stipulation agreement in 1966 that specified:
“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.”
It Creates “Tribal Reserved Water Rights” Out of Thin Air
In a carefully crafted sleight of hand, and smoke and mirrors talking points, the Compact Commission exceeded their authority by creating non-existent “tribal reserved water rights” with a time immemorial priority date (Note: they were authorized by the legislature to negotiate “federal reserved water rights” that are strictly limited to the purposes of the reservation of land).
This was a transparent attempt to give the state legal cover for awarding vast amounts of water both on and off the reservation to the United States / CSKT with time immemorial priority dates.
Western States Beware
If this compact is ratified as written, one could reasonably conclude that all tribes in the United States will reopen their old claims to land and water, wreaking havoc throughout the west.
Additionally the compact sets dangerous precedent by awarding the federal government time immemorial water rights for every drop of water in Flathead Lake, and concedes significant instream flows with various priority dates throughout 11 counties in western Montana in the Clark Fork and Kootenai River basins.
There are 573 federally recognized tribes in the United States, and only 35 or so have settled their water claims. What do you think will happen to water rights in the western states if Senator Daines awards all of the water in SB262 to them in his S.3019 water compact legislation?
During the Montana negotiation and legislative phases of seeking state ratification, state officials refused to complete any impact studies on their proposed settlement that would have helped the public and legislators understand its environmental, economic and legal impacts.
With no quantification or impact studies, in 2015 the Montana legislature essentially ratified a blank check to the federal government.
There is no question that this compact has far reaching implications for other western states many Indian tribes reside.
NOTE: DO YOUR OWN HOMEWORK. TAKE NOTHING AT FACE VALUE. WE CERTAINLY DON’T HAVE ALL THE ANSWERS, BUT PROMISE TO DO OUR BEST TO PROVIDE YOU WITH INFORMATION NECESSARY TO UNDERSTAND THIS COMPLEX AND IMPORTANT ISSUE.
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