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.

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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.

Montana Congressional Delegation Playing with Fire

©2016 Concerned Citizens of Western Montana

The rule of law, in its simplest form, is that nobody is above the law.

Citizens who have opposed the CSKT Compact have always known that the compact was about some larger agenda which was buried in the details of a 1,500-page monstrosity.

The Compact was so important to certain state elected officials, the federal government, proponents, and the CSKT that they stopped at nothing to get the compact “passed” by hook or by crook.  We believe it was mostly by”crook” as the Compact only passed through outright lying to the public, rule changes in the House, deliberate, knowing defiance of the Montana and U.S. Constitutions, and the expenditure of millions of dollars of taxpayer monies.

In defiance of the law, common sense, and common decency, Senator Tester introduced a rewritten, new CSKT compact to the Senate in June of this year which ironically exposed this larger agenda, demonstrating the true expanse of the attack on private property rights in Montana.

In brief review, the CSKT compact sets precedent across the west by:

• Rewriting the Treaty of Hellgate
• Ignoring history, private property rights, and state law
• Rewriting the definition of “reservation”
• Expanding the ‘federal reserved rights’  beyond that which can legally be claimed by Tribes, resulting in the unlawful condemnation of existing water rights on and off reservation
• Ceding state constitutionally-derived authority for water ownership, administration and protection of citizens to the CSKT/United States

Simply stated, the CSKT Compact had nothing to do with water rights or Indians or culture.  It was instead about expanding federal control over states, citizens, our economies, livelihood, freedom, and liberty.  Aided and abetted by the state of Montana, it is  a completely lawless, dangerous and immoral attempt to destroy Montana.

Senator Daines, Senator Tester and Congressman Zinke turned a blind eye to these issues and concerns of Montanans. But now they have decided to take advantage of CSKT Compact precedent and expand it’s concept across the west to federal lands, particularly National Forests and Bureau of Land Management (BLM) rangelands.  The effort is a blatant attempt to circumvent western state priorities.

Playing with Fire: Giving Management of National Forests and Public Lands to the Tribes: H.B. 2647 and S. 3014

S. 3014 began as House Bill 2647, or the 2015 Resilient Federal Forests Act,  which started out as a bill to reduce the threat of wildfire in national forests and public lands caused in part by environmental lawsuits, unnessesary federal regulations capturing the budget, and requirements of the National Environmental Policy Act. All of these “constraints” mean that effective reduction of fuel load and thus fire danger in forests and on public lands cannot occur.  The same concerns have been espoused and documented by the American Lands Council in the effort to turn these lands over to the States for their more effective control and management.

The intent of H.B. 2647 was also to include and assist forest  or range lands on Tribal lands or reservations.  Importantly, “Indian forests or rangelands” were defined as in the Tribal Forest Protection Act of 2004 and meant:

The term ‘‘Indian forest land or rangeland’’ means land that—(A) is held in trust by, or with a restriction against alienation by, the United States for an Indian tribe or a member of an Indian tribe; and(B)(i)(I) is Indian forest land (as defined in section 304 of the National Indian Forest Resources Management Act); or (II) has a cover of grasses, brush, or any similar vegetation; or (ii) formerly had a forest cover or vegetative cover that is capable of restoration.

The house bill was amended and proposed that federal forest and rangeland could be treated as Tribal Forest land or Rangeland with the following new and expanded definition:

The Department concerned, at the request of an Indian Tribe, may treat federal forest land as Indian forest land… if the federal forest land is located within, or mostly within, a geographic area presenting a feature or involving circumstances principally relevant to that Indian tribe.

The bill passed the House in July 2015, with full Zinke support.

S. 3014: Daines Adds Fuel and Strikes the Match

Senator Daines’ “version” of H.B. 2647, S. 3014, renamed and retooled the Resilient Federal Forests Act to:

A Bill to Improve the Management of Indian Forest Land, and for Other Purposes

The bill has the same goal as the House bill–ostensibly to reduce fire hazard and to create better management of the federal forests.  However, Senator Daines blatantly redefines federal forest lands to be “Indian Forest Land” or “Tribal forests”. From a discussion with Senator Daines’ staff provided to us by a colleague:

First, the intent of the bill is to have “more effective forestland management” because it will “bypass and streamline NEPA requirements,” including bonding requirements because the tribes are exempt from lawsuits and many, if not most of the requirements.  They are accepting and using the status of the tribes in a “pragmatic way” (their words) to do an “end run around the environmental groups and their lawsuits” (my words).

As Congress has made it easy for the Tribes to not have to follow the laws as other citizens do, and has insulated them from litigation, Senator Daines further expands the definition of Tribal Forest or Rangelands to include lands:

1. Ceded to the United Sates by Treaty or other agreement with that Indian Tribe;
2. Within the boundaries of a current or former reservation of that Indian Tribe; or
3. Adjudicated by the Indian Claims Commission or a federal court to be the tribal homeland of that Indian Tribe

With this expansive definition, it means that every National Forest and BLM rangeland in Montana is included and now under the management of the Tribes, as in this map showing the “homelands” of the seven Montana Tribes that were ceded to the United States.

Just a minor question, didn’t the Treaty of Hellgate–and other treaties– provide that the CSKT ceded all rights, title and interests to their aboriginal lands?  Now this federal forest land is described and treated as “Indian forest land”?

The west-wide implication of Senator Daines’ bill and the redefinition of of “Tribal Forest or Rangeland” is shown below:

So under the guise of “effective forest management”, and for the purpose of cynically avoiding environmental lawsuits and regulations, the turnover of federally-managed public lands to the states as per the American Lands Council, and spending more taxpayer money, Senator Daines gives away the management of lands not only all of Montana, but all of the western states to the Tribes.

From our colleague’s conversation with Daines’ staff:

The staffer says they are “taking a lot of heat from the left”, and that they “have put ‘sideboards’ on the bill to prevent over-expansion”.  These sideboards  are”making sure the land remains in federal ownership, public access is protected, timber is subject to competitive bid,” etc.  I asked why give the tribes this “favored” status when they have ceded all this land via treaty.  The answer pertained mostly to the “end run around environmental lawsuits” notion. Without any proof or examples, the staffer claimed that “Tribes are better at managing forest lands than the Forest Service.”

In defiance of history, the American Lands Council, private property rights, and the rule of law, Senator Daines has created a firestorm which will engulf the western United States.

Tribes to Contract Management of National Forests and Rangelands Under “638” Contracts

To add insult to injury, Senator Daines contemplates that the Tribes can contract from federal agencies for the management of all forest or rangeland activities previously conducted by the federal agency under the Indian Self Determination Act, P.L.93- 638 (25 USC 450 et seq)

However, under the law–the Indian Self Determination Act, or “638 contracts”–a Tribe may only contract federal functions if those federal functions were designed specifically for Indians because of their status as Indians. National forests, public rangelands were not set aside solely for Indians–they were established for the public.

Back to the CSKT Compact

The root of this “forest land” malfeasance by our federal officials starts with their use of Indian Tribes as a wedge against citizens.  Of course it is labeled “racist” to oppose this federal overreach and intrusion. Remember that the CSKT Compact, and Tester’s rewrite:

• Rewrote history–the title, rights and interest were never ceded, and the chain of title never broken
• Redefined the reservation–to include aboriginal and subsistence lands as “homelands” for the purpose of the treaty and to ignore fee patented lands and rights of way
• Expanded rights and privileges to water beyond what Tribes are legally entitled to, specifically off reservation and into Eastern Montana
• Granted Tribes the management authority over resources that do not belong to them and jurisdiction over non-Indians
• Took over a federal irrigation project and the project water rights of non-Indian citizens
• Eliminated state jurisdiction over state citizens and water resources within the exterior boundaries of the reservation

Senators Daines and Tester, along with Congressman Zinke are playing with matches and created a firestorm that is outside the law, outside of any legal authority they have, and outside the Constitution.

Their oath of office?  Heh, “what difference does it make”?

Call to Action

Let them know how you feel about S. 3014 and its companion CSKT Compact bill S. 3013 and Congressman Zinke’s blind support of the definition of Indian forest lands in  H. 2647 and S. 3014!

Senator Steve Daines: (202) 224-2651

Senator Jon Tester: (202) 224-2644

Congressman Ryan Zinke: (202) 225-3211

Federal Domestic Abuse – the Political Ruin of 30,000 Montanans And Confiscation of 350,000 Others’ Property Interests

Note:  Our thanks to Elaine Willman for her permission to print this article that was recently published in the Western Ag Reporter.

Federal Domestic Abuse – the Political Ruin of 30,000 Montanans and Confiscation of 350,000 Others’ Property Rights

At least since1998 and likely sometime sooner, federal and tribal officials were coercing State leaders into submission to surrender major protections of natural resources, property rights, water rights, Constitutional and civil rights of Montanans. A 1998 Memorandum of Understanding (MOU) signed then by Chris Tweeten for the State, of 2011-2015 Water fame and notoriety, as well as tribal and federal officials created the poison potion for the Flathead Reservation property owners to consume.  With the recipe in place, the instructions for administering the concoction were laid out by the CSKT Tribe in a 2001 Proposal for Negotiations.  And they were followed – to the letter over the next 17 years. Within these two documents many years ago was the plan and path to minimize the voice and silence those most directly impacted—property owners within the Flathead Reservation, 80% of whom are non-tribal citizens of the State.

Most of those directly harmed were entirely unaware that from 1998 to 2011 the federal jackboot was being crafted by numerous federal, state and tribal entities. A thirteen-year head start of multiple agencies that withheld public information for this period of time, certainly gave the feds, tribes and state profound leverage over a few courageous citizens asking questions or voicing concerns.

On April 11, 2015, the State Legislature approved the proposed CSKT Water Compact by a vote ruled unconstitutional on July 18, 2016, but this Compact moves forward anyway, for ratification by Congress. To add steroids to the strangling of farming, ranching, property rights, local small town economies, Senator Jon Tester has taken it upon himself to greatly expand the Compact approved by the State Legislature. The Senator as well as a Montana State Court have done end runs around the State Legislature. Tester’s Senate Bill 3013, the Confederated Salish-Kootenai Water Settlement Compact, – trebles the federal dollars to the tribe from 1.2 to 4.0 billion, requires the State turn all State waters over in the Compact land area to the federal government in trust for the tribes, and pony up $55 State tax dollars before the feds disburse the 4 billion.

Neither the Feds nor State will have any liability, nor will the tribe. Neither the feds nor state will have any oversight either. Landowners and residents have not a single government to turn to for redress. A small Unitary Management Board, heavily seated by tribal officials will control all matters concerning Compact implementation and will be the only place those harmed may take a complaint.

It is 2016 now.  Farmers, irrigators, landowners within the Flathead Reservation have lost control or any voice over everything necessary to produce life on their lands. The Tribe has 100% control of access to water. The Bureau of Indian Affairs controls the operation and maintenance of the irrigation districts. The federal government and tribe entirely control the former Kerr dam, with no reporting requirements, and no scrutiny of its public safety. The Bureau of Indian Affairs owns the Mission Valley Power Company that provides electricity to all households and lands within the reservation, and is operated by the tribe. Oh, and the tribe has no duty to non-tribal citizens or to keep America safe.  An unaccountable federal monopoly now controls life on non-Indian lands in Western Montana.

The Secretary of Interior has the last word on the Flathead Indian Reservation for water, power and irrigation. Not the Governor, not the State. Farmers and cattlemen fully know that life doesn’t happen on land without power and irrigation. And it’s the feds and tribes that will now arbitrarily set all rates for each—water and power, answering to no one, not the ratepayers or even the State’s Public Services Commission (PSC). It is the CSKT that no longer contributes to county and school district economic needs, so a substantial tax burden now shifts to the landowners as well. Water rates will go up; irrigation rates will go up; power rates will go up; taxes will go up.  This final economic squeeze is a foregone conclusion—it is a dead certainty.  The only things going down will be business income, household income, and land values. All of this is against the law. In the mid-80s a mission of the CSKT was to remove all non-Indians (approximately 30,000) from the reservation by 2030 “by any means necessary.” The stage is surely set.

Throughout this seventeen year period, during which landowners have been slowly bullied, demeaned and silenced, the State of Montana has made no effort, whatsoever, to protect its citizens and their collective right to own and enjoy the state’s natural (water) resources, for which the state is held legally responsible as a fiduciary under the public trust doctrine. Few attorneys, if any, have lifted a finger to assist the property owners. Public meetings were mere theater, feigned to pretend that any citizen voice mattered. The song sheets of the 1998 MOU and the 2001 CSKT Settlement Negotiation Protocols have been followed to the tune without missing a note or a beat.

Narrowly customized “help” was provided to the Flathead Joint Board of Irrigators (FJBC), keeping conversations limited to in-stream flows and not much else. Efforts by FJBC advisors have intentionally kept chronic divisiveness and dysfunction within the FJBC Board. These eleven fine Board members all deeply believe in the FJBC, are landowners and irrigators themselves, but pitted against each other could cause the collapse of the FJBC.  Apparently, the federal and state governments’ objective have long been to facilitate the failure of the FJBC so that the CSKT Water Compact can succeed. A well-functioning FJBC is a direct obstacle to successful CSKT Water Compact implementation. The FJBC and everyone must lose for the CSKT Water Compact to succeed. The plan set twenty years ago has wrought great fear and pain to truly fine Montanans.

To be blunt, the Interior Department and its Bureau of Indian Affairs now serve as pimps for federally recognized tribes, including the CSKT, who willingly submit themselves before the congressional and executive altar as “dependent” sovereigns to ensure rapid expansion of their “sovereignty” and legal jurisdiction over non-tribal lands, waters and persons; and the State of Montana is a willing and compliant customer, leaving an additional $55 million in State taxpayer dollars on the dresser. Indeed, while the State and Federal government lie comfortably together behind closed doors, the citizens of Montana have publicly had their dearly held constitutional, civil and private property rights pick-pocketed and transferred to others.

The State government has paid little heed to the printed words within the Montana Constitution or within the four corners of the federal Constitution, including the Tenth and Fourteenth Amendments and the Bill of Rights. Abandoned by their guaranteed representative government, good Montana people will be forced to move out and move on. The seven or eight Montana tribes will stand to devour the remainder of the physical State, as Montana’s governing institutions and structure increasingly become puppetry to implement federal directives for even greater tribal sovereignty and jurisdiction.

Want proof that this intentional theft of property owners’ water rights and interests have not been entirely orchestrated and maneuvered by the federal government and its operatives on the ground in Montana?  One small group of citizens recently engaged legal counsel to get their voices heard by the courts and federal agencies, and to claim their rightful due process, equal protection and property rights. And these folks are now painted as Enemy Number One. How dare a few property owners seek to protect their interests and their livelihoods? Those unable or unwilling to support these landowners remind me of the beaten wife contacted by domestic abuse counseling services that offer to help, but she sees them as bringing more trouble to her door, until she’s found dead in her home.

Governor Bullock, and Attorney General Fox:  Should Flathead Reservation land and water owners just lie down and drink the poison? How does that comport with your Oaths of Office? Who would have thought Montana, of all states, would succumb to such federal domestic abuse of the State, and then conspire with the federal government to deny its citizens’ State Constitutional protections of private property, water rights, and due process procedural rights?

This Compact, now bloated and inflated in Senator Tester’s S. 3013 bill is the blueprint and model for rolling out to the six other tribes in Montana, as well as tribes throughout the Western States. The current White House administration is hell-bent on taking down America’s food production by confiscating State waters, using tribal governments and reservations as the launch pads.

Absent support from the State of Montana or any current federal government entity, and in spite of serious demeaning and intimidation, some courageous property owners will eventually have their day in court.  And that is a good and necessary thing if property rights and due process are to exist for citizens anywhere in Montana today or tomorrow.

Elaine Willman, Author

Going to Pieces…the Dismantling of the United States of America (2015); and

Slumbering Thunder…a primer for confronting the spread of federal Indian policy and tribalism overwhelming America (2016)

Email: toppin@aol.com

Phone: 509-949-8055