Time has not been kind to the CSKT Compact. As we knew all along, as soon as Montanans clearly understood the overreach and lawlessness of the CSKT Compact, they would abandon it in droves, and wonder why their state officials pillaged the water resources and Constitutional protections of its citizens in favor of the CSKT.
That is the state of the CSKT Compact today, only supported by a few of the “usual suspects” who were likely “paid” handsomely to go along with the plan, or were too uninformed to know what they were doing, or were just simply lazy and didn’t do their homework. After all, the state, CSKT, and the Bureau of Indian Affairs screamed at the top of their lungs that the CSKT Compact was the ONLY solution. But now we know that is untrue. The People’s Compact/Mending Fences Act is such a solution and ultimately represents what the state should have produced for its citizens.
Let’s review the basic tenets of the CSKT Compact and assumptions underlying the state and CSKT public relations program which were aimed at an unsuspecting public. Montana citizens hired a group of attorneys who specialized in, and had won significant Supreme Court cases on federal reserved water rights. The questions we asked our attorneys reflect the basic ‘tenets’ of the CSKT Compact that were used to justify its unjustifiable excess. Here are the questions, and in short form, the attorneys’ analysis
- Who reserved the Flathead Indian Reservation, the United States or the Tribes? The United States
- Whether Article 3 of the Treaty of Hellgate grants a water right to the CSKT off-reservation on aboriginal lands? No, Article 3 is an access right, and no court decision has changed the nature of the Article 3 access right.
- The impact of the compact on the agricultural water resources, rights, and irrigators of the Flathead Irrigation Project? The taking of water from the irrigators is a Fifth Amendment taking without compensation
- The legal validity of the “10,000 claims” filed by the Tribes and the United States in eastern Montana. The claims have no basis in the law or Treaty of Hellgate. The state of Montana should not have allowed the Tribes to file these additional claims which are currently being used to threaten Montanans and the Water Court.
- Whether the state of Montana can delegate its constitutional responsibilities for administering water resources, and the provisions of the Montana Water Use Act, to a politically appointed board dominated by the federal government and Tribes acting under a new law created by the compact? The state cannot delegate its constitutional responsibilities; the Tribes have no jurisdiction over non-Indians or state law-based water rights; and the tribes are an adversarial party that cannot manage the water rights of others
- Montana and U.S. Constitutional violations of the CSKT Compact? Compact and legislature violated Articles I, II, III, and IX of the Montana Constitution, and Articles 4, 5, and the Fourteenth Amendment to the U.S. Constitution
- Whether the state negotiation process permits it to work outside the legally-established parameters of the Winters Doctrine and state law? A compact is a creature of federal and state law, and therefore, must be negotiated within that framework. In other words, the state and tribes cannot “do anything they want in a negotiation”.
Note that the questions above illustrate the precedent-setting framework though which the state negotiated this compact. These were the assumptions the state, tribes and BIA used to tell a tall tale. Please review the synopsis of the legal analysis for more information on the conclusions of the MLWA attorneys in analyzing the legality of the CSKT Compact.
For example, we were told, as if it were settled law, that the Treaty of Hellgate-Stevens Treaty- Article 3 provided the CSKT “vast off-reservation water rights in all the lands they subsisted in”. That is legally, historically, and factually incorrect. But is was presented as ‘truth’. It is still repeated today by compact proponents, the state of Montana, and some legislators who voted to approve the thing in 2015. Instead of owning up to the unlawfulness of off-reservation water rights in a federal reserved rights settlement, the Tribes, state, and compact proponents called the citizens of Montana “racists”.
These same off-reservation water rights have now compromised the property values of hundreds of thousands of citizens over 2/3 of the state, where land that was sold as irrigated land now sells as dry land because of the uncertainty of the Tribes’ time immemorial claims for water.
Contrary to the claims of the Farm Bureau, Montana Stockgrowers Association, and FARM, there is no certainty in the CSKT Compact. This is another false siren song.
The excesses of the CSKT Compact reflect to a “T” the excesses and overreach of every facet of the Obama Administration. And having reviewed the CSKT Compact extensively, we the people find nothing redeemable about it. The only correct starting point to solve the federal reserved water rights of the CSKT is the People’s Compact/Mending Fences Act.
The end of the CSKT Compact will mark the end of an error.