© 2020 Concerned Citizens of Western Montana
If nothing else, the Daines’ / CSKT Water Compact has proven that in fact words really do matter. The governments that created this monster understood that small shifts in the meanings of words can go a long way toward nudging their agenda toward a government condoned do over of the 1855 Treaty of Hellgate, except without its Article VI allotment and homesteading provisions.
WHEREAS, pursuant to the Hellgate Treaty of 1855, 12 Stat. 975, the Confederated Salish and Kootenai Tribes reserved the Flathead Indian Reservation;
A simple foundational lie in the first recital of the compact, stating that the tribes’ reserved the reservation, gave way to tribal ownership and management of all the water flowing over, under and through the reservation.
WHEREAS, the Confederated Salish and Kootenai Tribes claim aboriginal water rights and, pursuant to said Treaty, reserved water rights to fulfill the purposes of the Treaty and the Reservation;
The second recital goes on to claim fictitious, non-existent off-reservation aboriginal water rights to fulfill a new and improved 21st century interpretation of the “purposes of the treaty”.
These fundamental lies were used to give the state and federal government the contrived and imaginary legal legs that were necessary to explain away their agreement to award the CSKT vast amounts of water both on and off the reservation, throughout western Montana. By giving those claims time immemorial priority dates, they knew they were rendering the water rights of 360,000 Montanans worthless.
How many times did the Montana Reserved Water Rights Compact Commission tell us that we never had the water rights in the first place? Isn’t that in essence saying that we are nothing more than “squatters” on our own land?
Once the legal legs were invented, the theft of all that water was then buried in the 1,000 or more pages of water abstracts in the appendices to the compact.
These same lies also gave the governments permission to “forget” that the irrigation project was built for everyone, and ignore the fact that 90% of the lands served by it are currently owned by non-Indians. Their twisted and tortured legal theories were then used to bolster their reasoning for giving the tribe ownership and control over 100% of Flathead Irrigation Project water, forcibly obligating 2,500 Flathead Project irrigators to an adversarial tribal government for their water needs.
Yes indeed. Words really do matter.
LIVING ON THE FLATHEAD RESERVATION? NOT
Approximately half of the land located within the historic reservation boundaries is privately owned, and as such is subject to taxation by the state of Montana. This applies to private fee land homesteaded under the General Allotment and Flathead Allotment Acts, as well as non-trust lands that were allotted to individual Indians.
By definition, these lands are not part of the Flathead Indian Reservation, and the land patents associated with them are just as valid as any other land patent in the United States.
The Daines / CSKT water compact proposes to ignore that history and essentially reclaims these lands for the federal government and CSKT.
Don’t believe it? Why then, does the compact defines the reservation as:
Flathead Indian Reservation” or “Reservation” means all land within the exterior boundaries of the Indian Reservation established under the July 16, 1855 Treaty of Hellgate (12 Stat. 975), notwithstanding the issuance of any patent, and including rights-of-way running through the Reservation.
This definition is not the legal or proper definition of “reservation” as referred to in the Montana Constitution. Instead, it is the definition of Indian Country referred to in 18 U.S. Code § 1151–under Crimes and Criminal procedures! The real definition of the “reservation” is “all the land owned by the United States in trust for the said Tribe”. Patents and rights of way were established a long time ago and are established law. Defining the Flathead Reservation as Indian Country instead of ‘reservation’ leads to Oklahoma-type decisions.
My own property was an original allotment issued in 1908 by President Theodore Roosevelt. In 1929, a fee patent was issued on this land by President Calvin Coolidge. The fee patent on it contains this language:
NOW KNOW YE, That the UNITED STATES OF AMERICA, in consideration of the premises, HAS GIVEN AND GRANTED, and by these presents DOES GIVE AND GRANT, unto the said claimant and to the heirs of the said heirs of the said claimant the Land above described; TO HAVE AND TO HOLD the same, together with all of the rights, privileges, immunities and appurtenances, of whatsoever nature, thereunto belonging, unto the said claimant and to the heirs and assigns of the said claimant forever; and there is reserved from the lands hereby granted, a right of way thereon for ditches or canals constructed by the authority of the United States. The lands hereby conveyed are subject to a lien, prior and superior to all other liens, for the amount of costs and charges due to the United States for and an account of construction of the irrigation system of acquisition of water rights by which said lands have been or are to be reclaimed, as provided and prescribed the Act of Congress of May 18, 1916 (39 Stat.,123), and the lien so creates is hereby expressly reserved.
Nowhere on this patent is the Flathead Indian Reservation, tribal water rights or tribal government jurisdiction over that land mentioned.
(NOTE: to look up your own land patent, please reference this article that includes detailed instructions: Walton, Walton Everywhere)
THE FORMER FLATHEAD INDIAN RESERVATION
We have a wise and very dear friend who rankles whenever a private landowner within reservation boundaries says that they live “on the reservation.”
This is because if you accept the premise that you live on the reservation, you are opening the door to the loss of state jurisdiction and acquiesce to federal jurisdiction over your property.
Let us be blunt. The water compact proves, that if given the opportunity, the state of Montana is willing to cede all jurisdiction within reservation boundaries to the CSKT tribal government.
In fact, the Daines’ Water Compact achieves the objective of placing more than 30,000 non-Indians under a tribal government for their water needs.
Our founders called this taxation without representation, but the compact is even more oppressive and insidious because it places citizens under a communist tribal government in which we literally have no say.
INDIAN CLAIMS COMMISSION DOCKET 156 / U.S. COURT OF CLAIMS DOCKET 50233
In our last post we talked about the implications of the stipulation agreement signed by the CSKT as a condition of settlement for their off-reservation ceded lands.
We maintain that the same principle applies for all private lands within the historic boundaries of the reservation. The United States and CSKT have no claim to the water appurtenant to them.
In 1951, the tribe’s filed a companion lawsuit with the Indian Claims Commission and the United States Court of Claims with grievances pertaining to the Flathead Reservation itself. A copy of that petition can be found here:
Over time, the Indian Claims Commission lawsuit Docket 156 was dismissed and the case proceeded in the U.S. Court of Claims under Docket 50233.
The petition listed seven grievances that included mismanagement of funds, reservation boundary disputes, compensation for reservation land opened to settlement, and power revenues related to the Flathead Irrigation Project. One by one, each of the claims were resolved, five were resolved with settlement funds, and two were dismissed.
Ignoring Article VI of the treaty of Hellgate, in April of 1971, the Court of Claims ruled that reservation lands opened by the United States to homesteading and for other uses constituted a fifth amendment taking. Based upon that decision, the tribes were paid an additional settlement of $22.4 million dollars, which included $16.3 million in interest, for 485,131 acres of land.
NOTE: We argue that the treaty allowed for the opening of the reservation and as such this was not an unconstitutional taking. the tribes should not have been paid for these lands. The United States should have, but failed to appeal the decision. Regardless, in both scenarios the lands were moved back into the public domain for homesteading and other purposes.
The court records pertaining to the settlement show that the appraisal process valued the agricultural lands in question at a much higher value than other land classifications. In other words the tribe was paid for the value of the land, as well as the water.
While we are not attorneys, it is not unreasonable to conclude that if the acreage in question was a fifth amendment taking by the United States as ruled by the courts, the land would have been restored back to the public domain for settlement, extinguishing all tribal title, aboriginal or otherwise to those lands.
WE DO NOT LIVE ON THE RESERVATION. We simply live within its historic boundaries. The water rights on these private lands are OFF RESERVATION CLAIMS that the United States / CSKT are not entitled to.
Yet Senator Daines proposes to change that status, causing great financial harm to 30,000 or more people living within reservation boundaries.
Through an act of Congress, Senator Daines is paving the way for the theft of our water rights and the cession of state jurisdiction, placing 30,000 non-Indians in a jurisdictional vacuum that the communist CSKT tribal government is more than happy to fill.