©2016 Concerned Citizens of Western Montana
The Confederated Salish and Kootenai Tribes (CSKT) water compact, and the parties to it, have tried their best to rewrite the 160 year history of the reservation, elevating the Hellgate Treaty to supercede the United States Constitution while at the same time using this so called agreement to gut the multitude of federal laws and statutes that exist pertaining to this reservation, taking property rights and protections along with them.
Throughout compact “negotiations,” state officials conveyed to the public only those things they wanted them to know, discussing legal cases that supported the tribe’s overreaching claims, and blatantly ignoring the multitude of other decisions that served to limit the scope and volume of a tribe’s water rights.
Montana also neglected to keep its citizens abreast of the importance of documenting their water claims, and verifying that they had been properly submitted. Instead they used fear tactics to frighten people into thinking that they, or the former owners of their property had likely failed to properly submit their water claims, making them tenuous and questionable at best. They also wanted the public to believe that without a compact, citizens would need to hire an attorney to defend their water rights against the aggressive claims of the CSKT. Tactics such as these were used to push Montanans into accepting a very bad agreement.
In short, Montana has proven it is not to be trusted with our water and property rights. That being said, Montanans must take personal responsibility to:
- Keep informed about the status of the water compact and related issues
- Be vigilant and supportive of challenges to the compact and other encroachments on property and property rights
- Understand our rights and responsibilities under the law
- Review their water claims to make sure they are in fact, accurate and in order
- Ensure they are doing their part to get ready for the battle that lies ahead
With this in mind, this is the first of a series of articles discussing some of the issues that property owners throughout the state should be aware of.
For example, if you live within the boundaries of any Indian reservation, and own land that was originally allotted to an Indian in the early 1900’s, you very likely are a successor in interest to a federal reserved water right for the land that was once considered tribally owned. This kind of right is known as a Walton water right.
What are Walton Rights and Why are they Important?
Many folks living within the historic exterior boundaries of the Flathead Reservation might be surprised to find that they have water rights that are just as valuable as the Tribe’s rights, that also carry an 1855 priority date.
Walton rights arise from a 1981 court case defining such rights, the Colville Confederated Tribes (and the United States) v. Walton. In that case, the tribes sought a “judicial determination quieting title in the Tribe of the rights to the use of all the waters contained within No Name Creek Basin with a declaration that the Colville tribes are the beneficial owners of and have sovereign jurisdiction over such waters, together with a determination that the State of Washington is without jurisdiction or authority to authorize the use of or to regulate the waters in question.” (Does this sound like CSKT claims?)
The lands in question were originally allotted to Colville Indian members, and subsequently were purchased and held in fee simple title by the Walton family, a non-Indian. In this case, the court ruled that the water rights of heirs to or purchasers of an original Indian allotment acquire a share of the federal reserved water right and retain the same priority date as the federal establishment of the reservation.
The General Allotment Act of 1887 divided tribal lands into individual parcels, giving each tribal member a parcel, and allowing “surplus’ parcels to be homesteaded (sold) to non-Indian farmers. The President was authorized to allot reservation land to individual Indians. Typically, title to the land remained in the United States in trust for 25 years, then was conveyed to the Indian allottee in fee, free of all encumbrances, including the right to resell the land. Allotted lands are different than lands that were homesteaded when the reservation was opened to settlement.
Walton claims include an amount of water sufficient to irrigate the original allotment’s share of the Tribe’s “practicably irrigable acreage” (PIA), with a priority date of July 19, 1855 (the Treaty date).
Four elements are necessary to constitute a Walton claim:
- The water use must be on former Flathead Indian Reservation land as defined by the treaty;
- The water use must be on land that was transferred from Indian ownership, i.e. land that was originally a tribal allotment;
- The claim is limited to the amount of water actually developed at the time of transfer from Indian ownership; except that
- The claim may also include the amount of the Indian allottee’s partial or undeveloped portion of the PIA right that the Walton claimant has developed with due diligence since the transfer of property from Indian ownership.
Do Walton Rights Exist on the Flathead Reservation?
Although the CSKT water compact ignores them, and attempts to make them irrelevant, a large number of claimants to water rights on the Flathead Reservation have Walton rights claims as non-Indian successors to Flathead Indian allottees.
In fact many claims for water in the Mission Valley on the eastern portion of the reservation within and outside of the Flathead Irrigation Project carry Walton rights. As a general rule, when lands were allotted to tribal members in the early 1900’s, tribal members logically selected the most desirable lands within reservation boundaries, including many areas of the reservation that are now served by the Flathead Irrigation Project. Most of those lands were subsequently sold by tribal members to non-Indians whose rights now fall under the classification of Walton rights.
Do You Have Walton Rights?
If your property was originally allotted to a member of the Flathead Tribe in the early 1900’s, then you very likely have what is considered to be a Walton Right.
You can find out whether your property was an allotment, and secure a copy of the original land patent by checking the General Land Office (GLO) records of the Bureau of Land Management. The document at this link will provide detailed instructions on finding out the original status of your parcel(s) of land.
Why is it Important?
We are not attorneys and do not profess to give legal advice, but it is important to understand the scope and nature of the water rights that you are legally entitled to, and this is a first step in that direction.
Although the CSKT water compact effectively tries to circumvent the idea that any Walton water rights exist on the reservation, if you do have a Walton right, your water right registered with the state of Montana should reflect that, up to and including an 1855 priority date.
It is our understanding that the water rights filed with the state for the Flathead Irrigation project by the Flathead Joint Board of Control were amended to reflect an 1855 priority date.
NOTE: If you have any problems finding your land patent using the instructions at this link, please contact us through the CONTACT US page on this website, email us at firstname.lastname@example.org, or call us at 406-626-3353.
Watch for our next article about making sure your water rights are in order to learn more about the process necessary for checking out your water rights and preparing for the adjudication process in the state water court, expected to begin in early 2017.