Love Letters to Lawlessness

©2019 Concerned Citizens of Western Montana

In review and summary…

 

The widely reported letter from Secretary Bernhardt to Senator Daines was designed to “breathe new life” into the dead horse known as the CSKT Compact.

The letter contained no new information and doubled down on all the same tired reasoning they have used for years.  All of the assumptions and illegalities of the CSKT Compact have been detailed here on this blog, and for the high level view, in this recently produced video prepared initially for Senator Daines.

DNRC Director John Tubbs, one of the compact’s chief proponents,  thought the Secretary’s letter was “historic”, but to us the “historic” aspect of this is how many years Montana can ignore the law and advance a policy that they know is destructive to Montana.  Sad.

What is not historic, but was a cheap political trick, was to schedule the visit of Attorney General William Barr, and the timing of this letter, to strongly suggest to the public that “the Trump administration supports the CSKT Compact”.  Once again, in scheduling this visit the Senator ignored the pubic and specifically carved out the Tribes with a visit.  Why here, why now?

Of course AG Barr–who has not been presented any other picture than the tribes–is going to say something positive on the issue even though the CSKT Compact was tastelessly raised by the Tribe or Daines at this unrelated meeting.

Interesting, though, that this visit should be hastily arranged just shortly after this article appeared in the Western Ag Reporter, busting the off-reservation water claim hoax.  One can hear the frantic phone calls now— “Quick, hurry do something before everybody finds out!!!”

The background to the recent news coverage is that Senator Daines asked the Secretary of the Interior to review the People’s Compact and accompanying Flathead Water Solutions Handbook for Decision Makers.  The Secretary’s letter showed that he never reviewed the Handbook and the people who wrote his response are the same people who wrote and pushed the Compact while in Montana.  It appeared to be recycled language.

Was the Senator alarmed at the failure  of the Secretary to review the Handbook?  Did he know enough to be alarmed?

All we citizens have asked for is that our elected officials follow the law.  In view of all the issues raised and now known about the CSKT Compact, the Secretary’s letter to Senator Daines is really nothing more than a love letter to the lawlessness and property takings in the CSKT Compact.

Despite the headlines, the CSKT Compact is far from even touching President Trump’s priorities, and in fact undermines them.  The President needs to know what is going on here, and the role that our Congressionals are playing, before he decides to stump for any of them here in Montana.

The CSKT Off-Reservation Water Claims: “If You Like Your Water Right You Can Keep It”

Our thanks to the Western Ag Reporter for publishing this article by Dr. Kate Vandemoer on behalf of the Montana Land and Water Alliance–Concerned Citizens of Western Montana

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Once again, the proponents of  the CSKT Compact are flooding the airwaves, newspapers, and mailboxes with threats of “endless litigation” and “having to hire your own lawyer” if the CSKT Compact is not passed by Congress. They claim that if the CSKT Compact is passed, Montanans will not have to go to court to defend their water rights from the 10,000 off reservation water claims filed by the Tribes and the United States.

This sounds like “if you like your health insurance (water right), you can keep it (won’t have to go to court to defend your water right)”, so just pass the CSKT Compact. But as with Obamacare—which had to pass in order to find out what was in it—this is a failed promise repeated endlessly by compact proponents much to the detriment of informed decision-making in Montana.

Two Sets of Off-Reservation Water Claims

There are two sets of off-reservation claims.  The first set is associated with the CSKT Compact, with some geographically located off the reservation on rivers and streams in western Montana, Flathead Lake, and other claims on private lands within the reservation.

The second set of off-reservation claims were filed by the Tribe after the CSKT Compact was passed by the legislature, known as the “10,000 claims”, which cover additional sites in western Montana and expand to 2/3 of eastern Montana.  The 10,000 claims are not part of the CSKT Compact. A database showing the 10,000 claims can be found at this link:   https://tinyurl.com/10000Claims

So, urging Congress to pass the CSKT Compact will not eliminate the 10,000 claims because these claims are not part of the Compact. They will still have to be separately adjudicated in the Montana Water Court.

Some have said that the Tribes will “give up” these off-reservation claims if Congress passes the Compact.  That’s what they told Montana citizens before the legislature passed the Compact—that if it was passed, they would not file the 10,000 claims. But the Tribes filed those 10,000 claims anyway, and the state of Montana let them, despite “negotiating” the CSKT Compact “for 20 years”.  So, what and who are citizens to believe?   Did they file these claims to hold the state and its citizens hostage?

The Achilles Heel

The weak point of both the compact-related and non-compact 10,000 off-reservation water claims is that these claims are not “federal reserved water rights” associated with the Winter’s Doctrine. The state refers to them as ‘reserved rights’ in their advocacy literature without disclosing they are referring to the compact’s newly-created “tribal reserved aboriginal water right” that is allegedly derived from the Treaty of Hellgate, not the Winters Doctrine. But the only “reserved water right” that is relevant to any tribal compact in Montana and the United States is a “federal reserved water right” derived from the Winters Doctrine.

A federal reserved water right by legal definition exists only within the geographical boundaries of the reservation and is a discrete amount of water necessary to fulfill the purposes of the reservation. By definition  there are no “off reservation federal reserved water rights”.  That the State of Montana keeps representing that the CSKT Compact quantifies “federal reserved water rights—both on and off the reservation” is stunning because it is 100% incorrect. There are no “federal reserved water rights” off the reservation.

What’s Next?  With and Without the CSKT Compact

Under the CSKT Compact, the state is bound to fight its own citizens in defense of the compact-related off reservation water rights through a federal-state-tribal “mutual defense” clause, both in state and federal court. With the Compact, if the state court does not have jurisdiction to address the off-reservation non-federal reserved water rights, then the state is bound by the Compact to fight its citizens in federal court in favor of the Tribes’ off-reservation 10,000 water claims (see page 62, CSKT Compact). Thus, the Compact binds the state to future litigation.  Finally, with the Compact, the 10,000 off-reservation claims remain to be adjudicated in the MT Water Court.

Without the Compact, all water claims go to the Water Court for adjudication with no “compact overlay”. Here, the state is required to defend its citizens against all the off reservation, non-federal reserved water right claims in both state and federal court. The myth that individuals will have to hire their own lawyers belies the fact that it is the responsibility of the state Attorney General’s office to defend the water rights of Montana and its people against encroachment by other states or the United States through the Tribes.

Remember that all the off-reservation claims filed in or outside of the compact are not federal reserved water rights, so it won’t take thousands of attorneys to defeat them.  Just ask the state of Idaho, which recently defeated similar Tribal off-reservation water claims based on history and law.  The Idaho Attorney General’s office was able to defeat hundreds of off-reservation claims on behalf of thousands of Idaho citizens.

Given the reality of the law and issue of the CSKT compact’s 10,000 off-reservation water claims, and the fact that the 10,000 off-reservation claims still exist with or without the Compact, the best environment to examine and validate or reject these claims is the MT General Stream adjudication.

Through the lens and application of federal and state law,  the MT Water Court is fully capable of sorting it out and can then finish up the general stream adjudication.

FARM’s PURE PROPAGANDA

©2018 Montana Land and Water Alliance

As people around the state of Montana start receiving their Second Notice from FARM, threatening the water rights of irrigators if Congress does not approve the CSKT Compact, the question begs itself:  is FARM lying?  If the compact is so good for Montana, why do they have to threaten Montana citizens?  This threat is not only among the partisan groups like FARM, it also permeates through the halls of Montana’s executive branch.

There is an old adage that says, “if you repeat a lie long enough eventually people will believe it”…like the statement that “Article 3 of the Treaty of Hellgate grants the CSKT extensive water rights off the reservation in their aboriginal territory”. This is flat out untrue as Article 3 grants ACCESS to off reservation, ceded aboriginal lands IN COMMON WITH THE CITIZENS OF THE TERRITORY.

Or FARM’s statement that “like all state based claims, all tribal claims are presumed valid, predate most if not all water use claims, and can be enforced against all other water users until adjudication is completed.” What?

Our questions, and those that EVERY MONTANAN should be paying attention to are:

In what world does the State of Montana get to give a state water right with a time immemorial priority date, predating statehood, to a Tribe? Has it happened before?

And, since Montana’s general stream adjudication has been underway since 1979, has anyone been deprived of the use of their water during that adjudication process?

Think about this.   And note, Article I of Montana’s Constitution, and Article I (10), the Fifth and Fourteenth Amendment of the United States Constitution prohibit the state of Montana from advancing either one of these claims or actions.

REVIEW: THE CSKT COMPACT IN ONE CHART

The FARM organization, as all compact proponents, tout the the “negotiated” aspect of the CSKT Compact as if that somehow magically allowed the state, the CSKT, and the United States to violate the basic legal  framework of a federal reserved water rights settlement:

Federal Reserved Water Rights Settlement vs. CSKT Compact

Key Features	Federal Reserved Water Rights Settlement or litigation	CSKT Compact
Reservation of land	United States	CSKT
Purpose of the reservation	Articles 3, 5, 6  of Hellgate Treaty: Agriculture, Fisheries, Industrial	Permanent homeland
Volume of water	Discrete amount of water required to fulfill purposes	Unlimited
Geographic scope of federal reserved water right	Reservation boundaries	unlimited
Administration	State & tribal control over respective resources	U.S./Tribal control over all water rights

Being in a federal reserved water rights negotiation does not allow the state to violate federal or state law.  Contrary to the Compact Commission’s determination, this flexibility is not allowed and should never have been taken by a non-elected political body subject to the Governor’s whim.

On its face then, when this compact gets to Congress, it just might be laughed out  of the halls. It simply cannot be defended.

CLOSING THE DEBATE ON WHETHER ANY OFF RESERVATION WATER RIGHTS EXIST FOR THE CSKT

The compact proponents are all promoting a compact that puts the water rights of hundreds of thousands of Montana residents across the state at risk.  Thus FARM in fact is advocating against the farming and ranching community despite claiming the opposite.

Let’s provide the proper framework for ending this discussion.

The top diagram on this Legal Context & Reference Map shows the geographic scope of various treaties in Montana.   The bottom map shows the CSKT Compact claims plus the “10,000 Claims” filed in eastern Montana after the legislature passed the compact in 2015.

The top map shows the geographic scope of the Treaty of Hellgate, and other treaties that historically limit the range of the Flathead Tribes’ historic occupation.  The only reason the treaties are relevant at all in this discussion are to determine the scope of the federal reserved right.  Note the following:

1. The  lands covered by the Treaty of Hellgate are outlined in green and are in western Montana.  They include the ceded lands and the Flathead Indian Reservation.  They are bound on the east by the Rocky Mountains and the Judith River Treaty area (blue), and on the southeast by the common hunting area used by all tribes.  The western boundary of the lands covered by the Treaty border Idaho, except for a small section that borders ceded lands of the Pend de’Oreille Tribe of Idaho.
2. The Article 3 access right to aboriginal territory is limited to only those lands ceded by the CSKT to the United States, aka, western Montana.
3. In Article 5 of the Judith River Treaty, the Flathead agreed to not permanently occupy any land east of the continental divide and to limit its use to temporary hunting and fishing.
4. The red line is an arbitrary line drawn by the state and tribes that extends into the Judith River Treaty area and outside the CSKT ceded lands to signify a “subsistence area”, which are the geographic scope of the  “10,000 off reservation claims” filed by the Tribes after the compact passed, shown in the bottom map.

Conclusions:

• First, there are no federal reserved or “state law” water rights off the Flathead Indian Reservation.
• Second, the Article 3 Treaty right is an access right, not a water right, limited to the lands ceded to the United States in western Montana.
• Third, the CSKT have no “access right” to lands in the claimed “subsistence area” because the Treaty of Hellgate limits the access right to lands they ceded to the United States in western Montana.

That similar claims to off reservation water rights by a tribe have been soundly defeated by the State of Idaho makes you wonder what Montana was thinking!

Of course, Montana had tribal advocates running the Attorney General’s office and Compact Commission, thinking that they could break the law and no one would notice. Or by the time they did, it would have already passed the legislature.

That the state of Montana supports the outrageous claims put forth by FARM–by not refuting them and sometimes repeating them–is an embarrassing stand for a western state whose neighbors have decided to follow the law.

The CSKT Compact was NOT the Only Solution

Another fallacy readily accepted by an unsuspecting public was the line that the CSKT Compact, with all its illegality and excesses, was the only solution to this issue. Was it?

Just think about the difference between the CSKT Compact and other settlements in Montana.  Why did this one end up this way?

What if the State, Tribes and United States actually had focused on the resolution of the federal reserved water rights of the CSKT according to practice and the chart above?  Would we all be here more than six years later, accurately describing and sounding the alarm?

After 20 years, you mean there was no alternative?  And a 1,500 page document that no one could understand was put forth as “the best you’re going to get”?

No, this was the best scenario for the Tribal, state, and federal governments, not for the people of Montana.

How Citizens Exposed and Defeated the CSKT Compact

©2018 Montana Land and Water Alliance

Yes, you read the title correctly, and no, the work is not done yet.

But, we have not been defeated precisely because we exposed the CSKT Compact for what it actually was: a redistribution of wealth hidden beneath an “Indian water settlement”. The state of MT executive collaborated with the Tribal government and the United States to deprive state citizens of a number of constitutionally-guaranteed rights.

Before we begin, let us be clear that the CSKT compact harms individual Indians as well as non-Indians, especially Indian irrigators who will also have their water reduced under the compact’s provisions.  Individual Indian allottees are harmed in the same way that the Crow allottees were harmed by the Crow compact settlement. The fight here recognizes all citizens’ water rights are harmed.

The Exposure

The last thing that the compact proponents wanted was to have the true contents of the compact revealed to either the public or the legislature.  That’s why the CSKT Compact was buried in 1,500 pages of text, abstracts, appendices and maps, all of which were necessary to understanding the plan and operation of the compact. There were untested legal theories, clear misdirection and avoidance of federal law, and violations of state and federal constitutions that led to the illegality of the CSKT compact which were buried under some magic of “ten years of negotiations”, and “hard choices”.

We persisted, and despite being ridiculed, ignored, and defamed, the citizens uncovered many truths about the compact, among them:

• The so-called “complexity” and length of the compact were used to justify propaganda and platitudes–instead of facts–delivered in so-called “public education” meetings held in 2012 and to the legislature in 2013 and 2015.  The uncomfortable facts of the compact would never have gotten to the public without the citizens’ efforts and the citizens’ organization of more than a dozen public truth-telling meetings.
• The “science” beneath the compact was promoted as impeccable until the citizens compelled a legislative committee to examine it, and then oops! the state itself found out that none of the so-called science could be used to justify the actions in the compact.
• The legal “justification” for the Compact was shattered in every way through the work of attorneys hired by citizens, from the bogus claim that Article III gave the Tribes off-reservation water rights instead of access, to the state’s abandonment of its constitutional obligations to its citizens, and to the unconstitutional takings that resulted from the Water Use Agreement, the CITT, Unitary Management Board, and Unitary Management Ordinance.

As a consequence of our collective work, the Compact Commission had to lie to and mislead the public, the legislature had to change the rules to pass the compact with a simple majority, the Attorney General had to abandon the rights of its citizens guaranteed by the U.S. and Montana Constitutions, the tribes spent millions on advertising and lobbying, and the courts had to rule politically instead of based on the law and facts.

But, as a state law now, the inconvenient truth is that the CSKT Compact remains unconstitutional despite the political opinion of the Montana Supreme Court. And therein lies our opportunity to stop the compact still here in Montana.  On the federal level, fortunately, Tester’s bad burrito is dead–for now…but we don’t think it will be popular for his campaign to run on an unconstitutional taking known as the CSKT Compact.

All of the arguments you see now in the press in favor of the compact are not based in fact.  For example, the state’s new line is that “the CSKT Compact was the most examined compact of any compact ever”, when the truth is that the facts leading to the unconstitutionality of the compact were never examined or entered into a court of law but were instead deliberately buried.

These state employees were so busy forcing the compact down our throats and desperate to get it passed they didn’t notice that the whole show has been unveiled, with names attached. Ha.

Revealing the State and Tribal Road Map

Importantly, the citizens’ efforts got the state, tribes, and federal government to reveal their road map for the future.  And this is why every Montana citizen should be alarmed at the state’s role in forcing the CSKT Compact on its citizens–we’re going to see more rogue behavior by them all.  Here are some glimpses of the road map ahead of these entities:

• The Tribes.  Aside from the compact bold and flagrant takings, and Tester’s Bad Burrito, the Tribes demonstrated their long term road map through their 2014 lawsuit “against everyone”. While ultimately dismissed, the lawsuit demonstrates that the goal is the total ownership of all land and water within the reservation boundaries and the uncompensated taking of private property.
• The State of Montana Attorney General.  The MT AG’s response to the fact that the compact represents a taking under the Constitution was rebuked by AG Fox under the color of law by stating that the 5th Amendment takings only applies to citizens that are “similarly situated”, and that non-Indian citizens on the reservation “should have known” when they settled that the land and water belonged to the Tribes and that they would be under Tribal jurisdiction. Every Montana citizen should be concerned about the safety and security of existing property rights given the Attorney General’s propensity to ignore them. The breathtaking failure of the state of Montana to represent all of its citizens–not just the CSKT tribal corporation–resulted in a reckless experiment called the CSKT Compact imposed upon 360,000 people in 11 western Montana counties.  The goal appears to be the wholesale delivery of private property rights, water, and natural resource control “to the Tribes”, actually the federal government. In both the state and federal agency or legal spheres, no one represented the non-Indians.
• The Federal Government.  The federal government’s voracious appetite for the control over state-based water resources and private property rights was further exposed by the nature of this compact, which expanded the Tribes federal reserved water rights beyond what is legally allowed.  The BIA, constantly threatening the irrigators over the CSKT Compact, promised to increase instream flows and deprive irrigation water use over new instream flows pending an environmental review (which never happened). Simultaneously with the introduction of the CSKT Compact were several large scale federal efforts which would have shifted managerial control over natural resources to the federal government, again under the guise of “tribal” settlements or jurisdiction.  Witness the Klamath Basin, the Wyoming v EPA case, the Waters of the United States Rule, and the effort by Senator Daines to “treat” public forests and rangelands as tribal lands for the purpose of planning and management.  While the advent of the Trump administration offers significant opportunity to stem this federal tide, we have to watch our own congressionals and agency leaders.

Thus the road map for the state, tribes, and federal government will consist of the continued attempt to destroy property rights through legislative fiat—legislation crafted by the crafty and passed before an uninformed and unsuspecting legislature; filing of lawsuits along the lines of the Tribes’ 2014 lawsuit; federal legislation aimed at asserting federal control over natural resources under the guise of tribal issues, the environment, or endangered species; and other thinly veiled pretexts for resource control.

When things slow down a bit, remember the pattern—the Tribes always try something, and if it fails, disappear for a few years, and then try again counting on everyone to forget.  And that is why now you must take the time to study and know. THIS is probably the biggest lesson from this compact—don’t forget.  Remember, ‘the price of liberty is eternal vigilance’!

But for now, all of the state, tribes, and federal malfeasance has been exposed and documented. The facts that led directly to the illegality and unconstitutionality of the CSKT compact, however, were not allowed to be presented to or considered by the public, legislature or the Montana courts. Frankly, the work of citizens was treated by the state, legislature, courts and compact proponents as unworthy of consideration.  While true and undisputed, these facts–and citizens–were ignored and minimized, as the press willingly complied with spreading the state and Tribes’ propaganda. Whose money bought all the lobbyists, save three, and legislators in Helena in 2015?

Because of our efforts the years-long exposure of the unconstitutional CSKT compact if now advanced appropriately and by all, will alter the final form of a  “CSKT Compact”, if there is one, and thus ultimately the final form of the state law that now exists.

Which brings us to the present day.

The Road Ahead

Although we may have won the substantive battle on the content and foundation of the compact, we did not win the political battle that would have flatly stopped this compact in Montana.  There is always a silver lining

But, no one is disappearing because the issues remain and activity still goes on behind the scenes. The remaining issues now give us an opportunity to continue to finish off the compact in Montana on a number of different fronts, while other actions do the same thing at the D.C. level.

First, there is a strong legal and factual basis for action at both the state and federal levels:

• At the local and state level, which may end up in a federal arena, there are currently ripe legal arguments against the CSKT Compact that will constrain any implementation on and off the reservation. In broad scope these are described in the MLWA video.  We need to continue our discussion and exchange of ideas. There is also necessary continued education of our children, neighbors, community, and legislators as to the true facts behind this compact. We must make sure that this never happens again in Montana.
• At the federal level, there are ripe legal actions associated with on-going federal actions; documented factual information must be submitted and presented to the agencies and Congress through the appropriate channels. The presentation of these facts to agencies and decision-makers will inform and support their review and ultimate revision of the Compact.
  • Remember at this time Congress and the federal agencies can do what they want with the compact and no state or tribal approval is required.
  • Remember also that unless we convince the agencies and Congress of the necessary changes through our testimony on whatever legislation comes forward, we do not get a chance to substantively change the compact after it is approved by Congress and signed by the President.

Second, there is the on-going effort to prevent both the state and federal government, along with the Tribes, from implementing any part of the compact within the federal irrigation project.  This includes:

• ensuring that non-storable (formerly non-quota) water can be delivered in the spring,
• ensuring that stream flows and reservoir levels be maintained in compliance with the 2010 operations plan
• no new ‘adaptive management’ plan be implemented in the project until congress ratifies the settlement

There are both legal and non-legal ways to accomplish this goal.

   Will State Continue to Interfere in a Federal Irrigation Project?

A new CITT (Compact Implementation Technical Committee) meeting has been scheduled for January 30, 2018, from 9:30 a.m. to 1:00 p.m. at the MVP conference room in Pablo.  This CITT is authorized by the CSKT Compact, which is now state law, to implement “adaptive management” inside the irrigation project (Compact Appendix 3.5).

The truth is that the compact has been pre-implemented since 2013 and while the FJBC lawsuit was underway in 2015…a detail many have overlooked. The deprivation of non-storable spring runoff, increased instream flows–have been pre-implemented since 2013.

This pre-implementation of the of the Compact has changed irrigation operation provisions of the 2010 operations plan, which was approved by the FJBC, Tribes, and BIA.  This is the only legally-authorized operations plan for the irrigation project.  Nothing in the Compact’s Appendix 3.5-the adaptive management plan for a federal irrigation project–has been approved by the federal government.

Even the Tribes know this, as an affidavit was submitted as part of the Tribes’ documents in the FJBC v. MT case from Pete Plant stating the project was going to be managed according to the 2010 Operating Plan.

We also think that the 2010 FIPP operations plan is “settled” until a compact has been approved by Congress, notwithstanding the existing compact state law. And federal law regarding a federal irrigation project will override the provisions of the CSKT Compact as codified in state law 85.20.19 MCA

The CITT may plan and meet and discuss topics of interest,  but in our view may not implement any aspect of or spend, or direct the spending of, any state or federal money on compact-related activities in the federal irrigation project.  There are both legal and political avenues to ensure this outcome.

We continue to believe that off-reservation water rights associated with this compact that claim to be “co-owned” with the CSKT should not be implemented pursuant to the compact.

To be continued…as the river flows!

 

 

 

 

 

 

 

 

 

 

Tester’s Bad Burrito

©2017 Montana Land and Water Alliance

Continuing on the theme of our last post, we note that the very LAST thing the Tribes, State, federal government and compact proponents wanted was to have the CSKT Compact fully examined by the public or Montana legislature. They positively hated the concerned citizens movement across western Montana for discovering the truth of the compact and for talking about it.  We are sure that the simple majority of legislators that voted on the 2015 compact did not understand it and so passed it “obamacare-style”, hoping to find out later what was in the bill.

Despite the court proceedings that were underway, in May 2016 Senator Jon Tester introduced S. 3013 into the Senate–the CSKT Indian Water Rights Settlement Act of 2016.   The bill, which we understand was drafted by Tribal lawyers, once again masked and hid the contents of the CSKT Compact inside this new creation.  Simultaneously, Senator Daines introduced S. 3014, a “companion bill”, which would have treated off-reservation national forests and rangelands as “Tribal land” for the purpose of planning and management.  This can be seen as an attempt to make legal that which is not– solidifying the off-reservation water rights claims in the CSKT compact across other federal agencies.

Let’s take a look at the Tester effort:

Make no mistake–this is a bad burrito–maggots on the inside, just paper on the outside. A completely fake Indian water settlement.  Otherwise known as a crap sandwich.

Though this bill died in 2016, recent reports indicate that Tester will do this again in 2018, counting on the lobbying power and taxpayer monies of the tribes, their corrupt PR firm Mercury LLC and whatever inside influence they have in the Interior Department.

Let’s make sure that ship sinks.

Why the MT Supreme Court Failed to Resolve Compact Fatal Flaws

©2017 Montana Land and Water Alliance

The failure of the Montana Supreme Court to address the simple constitutional issue presented to it will stand as another stain on a state that refuses to acknowledge the property rights and concerns of its citizens.  Remember, the President of the Montana Senate in 2015 called the compact the “first assault of Montana on all its citizens“.  We agree.

Although it has seemed “quiet” during the course of two years of legal deliberations–which by the way is a strategy to dissipate and stop all compact opposition momentum–there has been truly a lot going on.  We will unveil these efforts as time goes on and as we take the next steps in defeating the compact.

Below is a video we produced in 2016 which has been making the rounds in Congress and with various legal entities that are interested in assisting citizens defeat it.  Please grab your favorite beverage, or consider watching this 38 minute film in two parts.

This Compact will not stand in Congress if we do our homework and prevent the theft from occurring.

Notes on Compact Implementation

©2017 Montana Land and Water Alliance

The roughly 1,500-page CSKT Compact, including appendices, was never presented to or explained for the Montana legislature in either 2013 or 2015 by the Montana Reserved Water Rights Compact Commission. As a result, many important aspects of the compact were not discussed, including immediate implementation of Appendix 3.5 in the federal Flathead Irrigation Project by the CITT and the Milltown Dam water right, involving a federal co-owned water right in the name of the CSKT.

We believe that the immediate implementation of these two elements of the compact is designed to enable as much irrigation operational change as possible. The only reason for the extensive appendices of the compact, including those that show the transfer of irrigator water rights to the CSKT, is to make it so permanent it will be impossible to undo if the compact fails either in state court or Congress. Just like Obamacare, Montana would never be rid of this compact.

Having examined the Milltown water right and its improper implementation, lets take a look at what the state is attempting to do with a federal irrigation project.

The Flathead Irrigation Project.  The reduction of on farm water delivery contemplated in Appendix 3.5 enables the CITT to “adjust” and “balance” irrigation and fish flows according to some “adaptive management” principles. “Balance” implies some kind of headgate management or control at either a main canal River Diversion Allowance) or control of diversions at the field level (historic use reduced to 1.4 acre feet per acre).

Bear in mind that there are no scientific criteria or measurable outcomes by which the CITT can judge “adaptive management” a success or failure. Noteworthy as well is that the BIA cannot change its operations plan without federal approval according to the Code of Federal Regulations (25 CFR 171). So the only current legally-correct operations plan is the BIA’s 2010 plan, not some “adaptive management program” in Appendix 3.5 of the compact.

In all these pages we have documented the factual, illegal, and unconstitutional provisions of the compact, with an archive of hundreds of documents that support all of what has been written here.  We believe the compact never passed the 2015 legislature, is unconstitutional, and violates provisions of Montana and U.S. law.

What does the long term deprivation of water to irrigation lands, including the lack of spring surplus flows or “non-quota” water do to agricultural production? It  starts a physical and biological chain reaction that starves the soil of early moisture, starves growing crops of water,  and reduces late-season streamflow important for agriculture and fish.

The loss of agricultural productivity and resultant economic devastation by this scheme of adaptive management was never analyzed in the compact and never presented to the legislature for discussion, let alone its immediate implementation. The 1,500 page document was designed to prevent this discussion and intended to frustrate the competent analysis of the compact.  Instead, politics prevailed.

Are there any Federal Law Books on the Shelves?

You would think that when issues of federal reserved water rights, Indian tribes, and the federal government are involved in an issue with the state, the state would consider basic elements of federal law that control the subject of water rights.  But seriously, are there any federal law books on the shelves of the Governor, Attorney General, Legislative Services Division, legislature’s or Compact Commission shelves? What makes them think they have the authority to unlawfully take or manipulate the volume of citizens’ water rights?

The problem returns to the misconception of what “Tribal sovereignty” is.  The state refers to the “three sovereigns” coming to an agreement on water as if the Tribe represents or has the same type of sovereignty as the federal or state governments, when they don’t.

Confronted with this issue, the state refuses to recognize the trap it has put itself in. And in doing so, the state of Montana violates the civil rights of all its citizens.

 

 

 

 

Tribal Governance: Self-Determination or Sovereignty?

©2017 Montana Land and Water Alliance

On the heels of the very important previous guest post, we begin a series of posts that address the issue of what the Tribes call “Tribal Sovereignty” and examine what that really means legally, as opposed to wishful thinking and myth-making.

The reason this discussion is important right now is because the uninformed view of Tribal governance and sovereignty has improperly allowed our state government and some legislators to violate the constitution and civil rights of Montanans, to give away their property rights, and to destroy the state-based judicial remedies for Montana citizens. Otherwise known as, the CSKT Compact.

Here are some basic questions that we all have, but are almost afraid to ask because any question of the Tribes is met with the accusation of  being a “racist” or anti-Indian.  Our state officials and some legislators have used these very terms to describe all opposition to the CSKT Compact, all the while claiming that somehow the tribes are “super-citizens” whose authorities trump state and local governments.

• Are Tribes really a “nation within a nation”, or something else?
• Does a tribe and tribal government have the same sovereign powers as a state, the citizens of the United States, and the United States?  That is, do Tribes have governmental power over non-Indians?
• What is the source of “Tribal governance”?

The fundamental problem that has arisen is that the Tribes, and federal agencies, have advanced the political notion that tribal governments have the same legal power as the state and federal governments over everyone–counties, non-Indian citizens, the states, and in our case, the federal government.  The Tribes have set themselves up as possessing more rights and more “sovereignty” than the rest of us.  Hence their assertion of “ownership and control” over all natural resources, for example.

Source of Governing Power–the Constitution

The basic framework for “governance” in the United States originates with the Constitution and Bill of Rights.  These documents were written by the people of the independent but united sovereign states of America which prescribed a limited role for the federal government and self governance of the states and people within those states.  The Tenth Amendment to the Constitution enshrined the self governance of the people and the states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the  people.

This enshrines the “self determination” of the states and their people, a principle fought for during the Revolutionary war and now embedded in our Constitution.

Do you see the words “Tribal governments” or “Tribes” in either the constitution or the Tenth Amendment?

Let’s look a little further.  The Constitution established three branches of government–the Executive, the Legislative, and the Judiciary.  The Executive is responsible for enforcing the laws of the land and is empowered to make Treaties by Article II, Section II of the Constitution:

He shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties

Importantly, the President can make Treaties only with the advice and consent of the Senate, and the general purposes of Treaty-making are to protect the citizens of the United States.

Thus the Treaty making power with the Indians is derived from the Constitution, and is vested in the President with consent of the Senate.  That is why every treaty is actually a federal statute–a federal law.  For example, the Treaty of Hellgate was negotiated under the auspices and by the authority of the U.S. Constitution and is actually a federal statute:

Treaty of Hellgate 12 Stat. 975

Although negotiated in 1855, it was not ratified by the Senate until 1859.  So the actual date of the Treaty of Hellgate is 1859.

Before the American revolution, the Colonies, Great Britain, France, and other “owners” of the land that is now within the territorial jurisdiction of the United States had an early recognition of the separateness of the various Indian tribes and their right of territorial occupation. In recognition of this separateness the Article I Clause 8 gave Congress the:

To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes.

Regulate, according to a contemporary dictionary at the time, meant “to make regular”.  Commerce is regulated with foreign Nations, AND among the several states, AND with the Indian Tribes.  Notice that “foreign Nations” are not the same as “the Indian Tribes”.

As the United States expanded its territory through the Louisiana Purchase, the Treaty with Great Britain, and the Alaska Purchase, it became necessary to make Treaties with the Indians so as to protect the people of the United States.  Therefore, pursuant to the authority granted to the President under Article II of the U.S. Constitution, treaties were negotiated with the Indians and such treaty only became effective through Senate consent.  All Treaties with the Indians are therefore federal statutes, and originate from the authority of the U.S. Constitution and are vested in the Executive.

Article II Section 10 prohibits the states from entering into any Treaty—they do not have the authority. thus the State of Montana has no authority to renegotiate, create, change, alter, or apply new significance to Treaty of Hellgate as they did in the CSKT Compact.

The Treaties are not superior to the Constitution because they are authorized by the Constitution and are federal law.  The so-called “supremacy clause” of the Constitution actually sets up the  Constitution as the supreme law of the land, not the federal government or the Treaties. Per Article VI of the Constitution:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Emphasis added.

Although one can argue what the true purpose of the Indian reservations were at the time they were created, the Treaties and further federal law granted to the Tribes the power to govern themselves and to arrange their own internal affairs.  Notice that the original notion of the Constitution–self governance–was similarly afforded to the Tribes by the United States.

Thus the source of the Treaties, Tribal governance, and tribal “sovereignty” is the United States Constitution.  The Tribes’  claims of “inherent tribal sovereignty” ARE its rights to govern its own people and to arrange its own affairs…NOT the affairs of others.

The CSKT Compact Context

So, how did the Tribes gain control over the water resources, lands and activities of non-Indians living on private land within the Flathead Indian Reservation?  And how did they gain water rights to fulfill an access right to fish in lands they ceded to the United States?  In the context of our discussion above, here are a few possibilities:

• The Tribes were successful in creating a new definition of “tribal sovereignty” and its powers as a “nation” to convince state lawmakers and regular citizens that they had the same sovereign powers as the state of Montana, who is authorized by its constitution to manage, own and administer the water resources of the state for the benefit of its citizens.
• The state of Montana accepted this flawed, unconstitutional, and legally incorrect notion and gave up its citizens’ rights to the CSKT
• The state of Montana, without any constitutional or legal authority, reinterpreted the Treaty of Hellgate, particularly Article III, to grant to the CSKT more rights than the U.S. Constitution allowed it to give.  Remember the states have no authority to enter into or reinterpret any treaty made under the laws and Constitution of the United States.

The state, Tribes, and United States counted on the lack of knowledge of these issues by the Montana public and its citizen legislators.  Thus they were able to throw the words “racist”, “anti Indian”, and “anti-government” around like candy, intending to intimidate anyone who questioned the legal, property, and moral assaults on the citizenry brought forward by the Compact.

Intentional?

 

 

Political Notions and Legal Doctrine

©2016 Montana Land and Water Alliance

As the unconstitutionally-passed CSKT Compact makes its way to the Montana Supreme Court for a review of the lower court ruling on severability, it is important to review just what was planned for Montana if the CSKT Compact had passed.

Words Matter

One of the major mistruths perpetuated by the elected and non-elected CSKT Compact proponents is the statement that Indian Tribes are “sovereign nations” in the same sense that the United States and the States are sovereign entities.  A history of federal Indian policy, our Constitution, and case law prove definitively that in our system there are but two sovereigns—the States and the United States.  What is different about Tribes is that Congress—which has plenary power over Indian affairs, allows the tribes to be self-governing entities but not entities that govern others.

Thus the Compact’s “Unitary Management Ordinance” or “Law of Administration” is patently not viable because the Tribes do not have that authority as prescribed by Congress and are not a ‘sovereign nation’ independent of the United States.  The state, exceeding its constitutional authority, gave that power to the CSKT through “negotiation”, whereas Congress and the President never have. The federal government also exceeded its constitutional authority in permitting negotiators to get this far.

I don’t believe anyone can give this power to another entity. This power is reserved to the Federal Government and the States by the Constitution. Only a revision to the Constitution would allow this and that would take 3/4ths  of the States to approve that revision.  Montana would also have to revise its constitution to permit this jurisdiction.

The political notion that was turned into supposedly “legal doctrine” was a romantic, sympathetic, and essentially respectful view towards the Tribes, which was transformed into “Indian Tribes as sovereign nations” that had control over all citizens just like the States and United States.  That there cannot be three sovereigns in the United States is indicated by the Tenth Amendment:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Indian Reservation vs. Indian Country

In the compact, the Flathead Indian Reservation was defined as “Indian Country” instead of “Indian Reservation”.  The term “Indian Country” is actually derived from U.S. Code (18 USC § 1151) and involves criminal matters such as child abuse, gaming revenue, theft from tribal organizations and other issues,  but not land or water.  As used in the Compact, this definition of the Flathead Reservation includes all lands, rights of way, notwithstanding (in spite of) existing land patents.  In other words, everyone’s private land comes under the criminal jurisdiction of the Tribes in the compact using this definition of the Flathead Indian Reservation.

On the contrary, “Indian Reservation” according to Montana and federal law means the “lands within a reservation that are owned by the United States in trust for the tribe.”  In the case of the CSKT, that would include about 650,000 acres of the 1.2 million acre “reservation”.  The rest is owned as private property 100% subject to state taxation and all state laws.

The political concept that was advanced was simply an acknowledgement of Tribes having been here in Montana before others, as in “all of Montana was Indian country at one time”.  No one disagrees with that.  But the adoption of one definition of the Flathead Indian Reservation that improperly expands a political notion to the resolution of the federal reserved water rights of a Tribe is a major fatal flaw in the compact’s “reasoning”.

Constitution, Laws, and Treaties on Equal Footing

How often have you heard the phrase that “treaties are the highest law of the land”?  And then been made to feel that whatever the Treaty says, even if it overrides state law and common sense, is the only law that applies?  But Article VI of the Constitution says “this constitution and the Laws of the United States which shall be made in pursuance thereof and all the treaties made, or which shall be made shall be the supreme Law of the Land”. All three have equal footing—all are the “supreme law of the land”.

Note that a state has no power to make or reinterpret a Treaty, or to pass a law that violates its own constitution or laws of the United States.   The state’s political notion of basically returning ceded lands back to the Tribes was somehow changed into a “legal fiction” that the Tribes had off-reservation water rights.   Thus the state’s reinterpretation of the Hellgate Treaty to state that an off-reservation access right to fish is automatically a water right is flatly unconstitutional.  In the face of clear legal uncertainty of this notion, the state  advanced the unsubstantiated political concept that the “courts would rule in favor of the Tribes” every time.

There is no “Fix” to the CSKT Compact

The information above presents only a few of the extremely serious flaws with the CSKT Compact and prove that even if the legislature were to remove the immunity language, the fundamental  political-notions-turned –legal-doctrine problems with the CSKT Compact will not be resolved.  It was negotiated on false premises to begin with and promoted with absolute bias in favor of the CSKT to the detriment of Montana citizens.

Equally important to note is that the CSKT Compact is the only compact in Montana where these excesses appear.

It’s time for all of these water rights to be resolved in Montana’s General Stream Adjudication.  Then everyone is on a level playing field , rules apply, and the state will have to protect its citizens instead of siding with an adverse party.

National Implications of the CSKT Compact: Forests and Range lands at Risk

©2016 Montana Land and Water Alliance

Note: This article continues our series on the efforts of the Montana Congressional delegation to work around Montana’s interests and cater to the Tribes and other special interests as they continue to federalize Montana’s lands and water.  We hope that by alerting Montanans and other western states that these efforts can be checked or otherwise reined-in.  We thank the Western Ag Reporter for publishing this account in late September, 2016.

If anyone thought that the CSKT Compact just affected Montana and further, was only limited to western Montana, it’s time to face the uncomfortable and inconvenient truth.  The principles of the CSKT Compact—including (a) the rewrite of the Treaty of Hellgate to give water rights to the CSKT off reservation where none existed before, (b) removing citizens out from underneath the protection of the Constitution and laws of Montana for water administration purposes, placing them underneath the jurisdiction of the Tribally dominated politically appointed board and (c) expanding the land base and jurisdiction of Indian Tribes over non-Indians—have now surfaced in federal legislation affecting national forests and rangelands.

Under the Radar

Everyone agrees that National Forests and rangelands are at risk of catastrophic fire in part because the radical environmental community has forced federal agencies into court essentially stopping all forest and rangeland management activities, including those aimed at reducing the fire fuel load.  The practical result of this strategy is that much of the budget of the federal agencies responsible for actual management of these public lands is tied up in environmental litigation.  And since these environmental groups can recoup their legal fees through the Equal Access to Justice Act (EAJA), this further reduces the federal funding available to conduct critically important preventive management measures protecting our public lands from catastrophic fire.

“Flying under the radar” however, are efforts promoted by Montana’s Congressional delegation to supposedly address these concerns.  However, rather than revise environmental laws, the Montana congressional delegation is now attempting to apply the principles of the CSKT Compact to National Forests and Rangelands in the form of  two bills: S. 3013—Senator Tester’s expanded CSKT Compact; S. 3014—Senator Daines’ bill to “treat” national forests and rangelands across the United States as “Tribal” forests and rangelands.  A third bill passed in the House in 2015 and supported by Congressman Zinke, H.B. 2647, included a provision that expanded the Tribes’ role in forest and rangeland management to lands adjacent to Indian reservations that carried “significance” to the Tribes.

While the stated goals of these bills are to provide for expedited fire protection on public lands, and to avoid environmental lawsuits, the mechanism chosen by the Senate to do so provides favored status and public funding to Tribes for the management of public lands under the guise of “streamlined environmental regulations” and “litigation protection” applicable to Tribes.

Under Senator Daines’ bill, S. 3014, National Forests and Rangelands would be “treated” or designated as “Tribal Forests and Rangelands” for the purpose of planning and management, activities that include fuel load reduction and fire protection.  National forests or rangelands that are within (a) Treaty ceded lands, (b) the judicially determined historic geographical range of Tribes, (c) former reservation lands, or (d) lands covered by and Indian water settlement would be designated as “Tribal Forests” or “Tribal Rangelands”.   “Tribal Forests and Rangelands” would have ‘streamlined environmental regulations’ and ‘litigation protection’, and project funding would be provided through a direct contract of federal funds to the Indian tribe for what is public—not tribal- land.

How Will this Effect Counties in Montana?

While Senator Daines’ bill contemplates only six “pilot projects” per year over a period of ten years, just one of these projects in Montana could turn over millions of acres of land now under federal control to the Tribes. For example in Lincoln and Ravalli counties approximately 73% of the county lands currently managed by the Forest Service could be designated as “Tribal Forest” under the Daines bill.  East of the continental divide, the Forest Service and BLM currently manage nearly 16 million acres of land, all of which could be designated as “Tribal Forest or Tribal Rangelands” under the Daines bill through multiple “pilot projects”.  Theoretically, nearly one third of all the land in Montana could be under the “planning and management” control of Tribes.

Missing from Senator Daines’ bill are the counties, state, and local government cooperative agreements, arrangements, and resources which already contribute to the management of federal lands affecting fire protection in the counties.  In essence, with the new focus on Tribes these existing arrangements are likely to be sidelined or ineffective inasmuch as the Tribes will not be required to utilize them.

Will Push back from Montana and Other Western States be Enough?

Already many Montanans and at least three western states have begun to push back on Senator Daines’ “Tribal Forest Protection Act”, where our National Forests and Rangelands are now ‘treated as” Tribal forests and rangelands.  Although the Senator’s office is reportedly responding to these concerns, we found Senator Daines’ language in yet two other another senate bills, S. 3085 and S. 2012 which will act as the “comprehensive” bill incorporating the Zinke-supported house bill and Senator Daines’ bill.  In other words, the Daines bill might change, but what about the larger comprehensive bill?

The risk of course is the lame duck session of a “republican controlled” Congress that has given everything to the Obama administration that it asked for.  Clearly the passage of the “comprehensive” forest management bill, which includes the Daines bill language, is likely as is its signature by the outgoing president.

The Root of the Problem

Ignoring federal and state constitutional responsibilities, rewriting history,  and giving favored status and carte blanche management authority over lands, waters, and citizens of the state to the CSKT through a water settlement—an effort underway for more than a decade in Montana—is clearly at the root of the Montana congressional delegation’s efforts in so-called “forest protection”.   These are the hallmarks of the CSKT Compact principles which, if allowed to proceed, will bring even further damage to the Montana and other western states.

And through their silence, our Governor and Attorney General are as complicit in the forest effort as they were in forcing the disastrous CSKT Compact on Montanans.  We understand that Daines’ staffers keep regular contact with the same attorney in the Attorney General’s office that created the disastrous Compact.  Yes that would be the same Attorney General whose allegiance is to Indian Tribes, not the state of Montana.