©2016 Montana Land and Water Alliance
The CSKT Compact is so unlike every other Indian water settlement in the United States that it begs the question: in what universe was this monstrosity created?
The United States was formed as “a nation of laws, not of men”, but in the CSKT Compact we find that no federal or state law applies to the Compact’s redistribution of water in Montana. Instead, the “men”, or State, Tribal, and federal “negotiators”, pretended that the CSKT Compact was like every other lawfully negotiated compact in Montana, and then pretended—no insisted– that the Treaty of Hellgate said things and granted rights that literally are nowhere to be found in any treaty, state or federal law, or case law. On its face, and in the details of the document, this compact was created not within the framework of the law that does apply to these things, but was instead created anew out of whole cloth.
There was an old TV show known as the “Twilight Zone” that provides a good analogy for the construction of and plan for the CSKT Compact. In the Compact twilight zone, history doesn’t matter, and if inconvenient, is rewritten; property rights perfected by thousands of citizens don’t exist; the state government does not look out for its citizens; no one ever had the right to settle here, and the rule of law does not apply.
A House of Cards
We don’t have to look any further into the CSKT Compact than the first recital of the Compact to find the key “mind trick” played on citizens that unlawfully set the framework for the taking of water in western Montana:
Whereas, pursuant to the Hellgate Treaty of 1855 12 Stat. 975, the Confederated Salish and Kootenai Tribes reserved the Flathead Indian Reservation
Those not familiar with the federal laws relating to the establishment of every federal reservation—including Indian reservations—would not know that this first recital is horsepuckey, hogwash, and preposterous. Only the federal government can reserve lands for an Indian reservation. And only the federal government can reserve a federal reserved water right, which by definition is the amount of water necessary to fulfill the purpose of the federal reservation. If it were not this way, there would be no ‘federal reserved water rights’ for any Indian reservation and no need for any Montana compacts. Indeed, the first clause of the CSKT Compact is the foundational lie underlying the whole compact.
It appears that the lawful process established by federal statutes to resolve CSKT federal reserved rights in state court, under which the Montana legislature established the Compact Commission to negotiate them with federal entities, was used only as a “front” to cover the fundamental lawlessness involved in rewriting history to say that the CSKT reserved their own reservation. Thus, the CSKT Compact was not a federal reserved water rights settlement; it was a complete rewrite of the Treaty of Hellgate. And, it was the complete repudiation of 150 years of federal law guiding the development of the western United States.
Why is this important?
In the CSKT Compact twilight zone, this first incorrect clause set the stage for the Tribes to claim every drop of water on the reservation and on private lands, instead of that amount to fulfill the purpose of the reservation. This clause also permitted the Tribes to claim most—if not all—of the water in western Montana; to take the water rights of Indian and non-Indian irrigators within a federal irrigation project; and to make unlawful water claims in eastern Montana. Further, this clause enabled the Tribes to claim full jurisdiction over non-Indians on private lands, and enabled the state of Montana to disavow its constitutional responsibilities to its citizens.
By ignoring federal law and private property rights perfected under state law, the stage was set to disenfranchise all Montanans of their legitimate property rights and their rights under both the U.S. and Montana Constitutions. And Jon Tester piled onto the unlawfulness of this compact by pretending he had the right to rewrite legislation that hasn’t yet left Montana courts, adding “other purposes”, and ignoring the rules that every other Indian water settlement is based on.
We have recently celebrated the 240th anniversary of the Declaration of Independence. We should also reflect on the liberties lost and the precarious position of our republican form of government when the elected officials of our state lose the consent of the governed. No one under the Big Sky agreed to this theft of water and liberty with the exception of a few opportunistic, obtuse legislators and the state executive.
The citizens of Montana have become strangers to their own state government and elected officials, there to be used and abused with not even a hint of due process or the rule of law. The Montana executive, including our “republican” Attorney General, literally federalized all the water in western Montana. Welcome to the Compact twilight zone.
Addendum: On June 29, Senator Tester’s S. 3013 was heard before the Senate Select Committee on Indian Affairs. True to form none of our congressional delegation informed anyone of this hearing so the Committee got a one sided view. Take a look at this testimony and understand the full extent of the Twilight Zone–the lies are repeated continuously! http://www.indian.senate.gov/hearing/legislative-hearing-receive-testimony-following-bills-s-2796-s-2959-s3013