© 2020 Concerned Citizens of Western Montana
Although the complete testimony at the S3019 hearing is more lengthy, and is not provided in this post, we have transcribed Senator Daines’ introduction to his “bi-partisan” legislation for your review. It is posted below.
In his own words, Daine’s admits his legislation was developed out of his fear of the 9th Circuit Court and other unknown future decisions of the courts.
That is not leadership. It demonstrates his failure to get to the heart of the issue and to fix the problems and issues that allowed this situation to happen in the first place. He instead chooses to empower a small tribal government in western Montana to continue to hold the citizens and governments of Montana hostage to their threats of litigation. Litigation that has no foundation in the law, or the tribe’s treaty.
If he ever knew his responsibility as a United States Senator, he seems to have forgotten the fact that it is Congress that has the authority to clean up the mess that Federal Indian Policy, activist courts, and the State of Montana Compact Commission have created. Instead, in his testimony, Daines’ effectively surrenders Congressional authority for this issue to corrupt, activist judges in the courts, and to the CSKT tribe.
Instead of finding a workable solution, and reforming corrupted federal Indian policy, Daines capitulates by giving deference only to tribal demands. His legislation was written by tribes and his support of it is is built upon tribal appeasement policies.
By giving in to tribal threats of litigation: the 10,000 claims, future court decisions, the decommissioning the Flathead Irrigation project, and other untold threats by the attorneys of an out of control tribal government, Daines has shown himself for the despicable coward and panderer that he is.
The sharks must smell blood, or is it Senator Daines’ urine, because of his fear of them, in the water?
Daines also admits in his testimony that SB262 and his legislation were built upon a COERCED water rights settlement, not a NEGOTIATED one.
What a sorry excuse for a Senator, cowering under the fear of litigation.
Here is his introduction. Our additional comments follow Daine’s statement below.
Note: the transcription does not do justice to Senator Daines’ flair for drama with the inflections of his voice during the actual reading of his prepared statement.
Senator Daines Introduction of S. 3019 to the Senate Committee on Indian Affairs:
In Montana, we have an old saying, whiskey of for drinking and water is for fighting. In settling the century old Confederated Salish and Kootenai Tribe, or the CSKT water dispute has been no different. For years, this has been a polarizing issue in Montana. That’s why I’ve been working in the U.S. Senate to resolve this dispute, negotiating with the tribe, local leaders, farmers and ranchers, state legislators, county commissioners, the administration, and other key stakeholders to find a solution. One that permanently settles the CSKT water dispute, protects the water rights of all Montanans, and avoids costly litigation.
In November of last year, a federal circuit court found that the senior water rights of the tribes in their treaty to protect fisheries are paramount. In fact the farmers and the ranchers in Oregon and Northern California went through eighteen years of costly litigation, and after all that time and money and uncertainty, the court sided with the tribes in a 3-0 unanimous decision.
In fact just yesterday, the United States Supreme Court denied hearing an appeal to this case, and effectively upheld the lower courts opinion that in stream flow rights to protect fisheries are covered under the Winters Doctrine. That decision provides additional context as to why we are here today. We have a constitutional duty to bring resolution to the CSKT water dispute, helping the tribe quantify and realize the water they are entitled to under the Hellgate Treaty. as well as 100 years of federal court precedents.
We must also provide a practical solution to resolve the significant liability for the United States, to protect Montana’s agricultural economy and as I mentioned earlier, protect the water rights of ALL Montanans.
Let me provide some perspective on this. In 2015, the CSKT and the federal government on the tribe’s behalf filed over 10,000 claims in the Montana water court, placing over 1.85 million acres, or 70% of Montana’s irrigated land at risk for losing its water. This past January, the Montana water court stay on thousands of these water rights claims (inaudible) was set to expire If it expired those claims could have been enforced immediately until a water court judge completes the adjudication of the claims which would take DECADES. And jeopardize the vast majority of irrigated land in Montana, and casting uncertainty on land owner’s property values for decades.
As a fifth generation Montanan who cares greatly about the ag economy, and water rights of all Montanans, this is a risk that I would not let Montana families and farmers take.
With introduction of this federal legislation, the water court judge agreed to extend that stay for three more years. Both Secretary of the Interior David Bernhardt, and Attorney General Bill Barr stated that legislation is the best course of action, and that they support legislation versus litigation, which is what THIS BILL does.
Importantly, this bill protects the water rights of all Montanans, permanently settles the water rights dispute, and reduces the cost to the tax payers, and IT CREATES JOBS. A study has shown that this bill would create THOUSANDS of jobs by injecting $1.9 billion to rehabilitate the Flathead Indian Irrigation Project, and reserves $10 million dollars specifically for Lake and Sanders Counties for related road maintenance.
In addition to resolving this long standing dispute, this is a JOB AND INFRASTRUCTURE BILL. Without this legislation, the Flathead Irrigation Project could be decommissioned due to federal statute, water quality and endangered species act violations, which would cost taxpayers BILLIONS of dollars, and would devastate the economy of Lake and Sanders Counties.
And finally, I also worked to ensure there is increased TRANSPARENCY and ACCOUNTABILITY for the federal dollars spent in this legislation. The Montana Water Rights Protection Act protects Montana sovereignty, and reaffirms Montana’s state constitution, stating that Montana owns ALL OF THE WATER WITHIN STATE BOUNDARIES, and it prohibits the sale of water outside the state of Montana.
This legislation is a product of working for YEARS, with stakeholders from all sides and is a compromise that can move forward, and one that can be signed into law.
And with that Mr. Chairman, I look forward to hearing important testimony on this legislation.
THE DAINES’ COMPACT CEDES CONGRESSIONAL AUTHORITY TO THE JUDICIAL ACTIVIST AND LIBERAL 9TH CIRCUIT COURT
In 1977, Lloyd Meeds, a congressman from the state of Washington said this in his dissent to the final report of the American Indian Policy Review Commission:
The United States is prepared to accommodate Indian interests, and to provide a substantial degree of self-determination. But there is a point beyond which it cannot go—our federal framework will not be compromised, nor will the rights of non-Indians be ignored. Where tribal aspirations collide with constitutional values, the tribe’s interests must yield. Nor can the rights of the non-Indian majority be compromised to support tribal aspirations. Doing justice by Indians does not require doing injustices to non-Indians. ~ Lloyd Meeds, 1977
In 2020, Senator Daines has willingly crossed what we call, the Meed’s line. In fact, the Daines’ legislation forever erases it.
Instead of standing up for what is right and showing leadership with respect to squelching such aggression from tribal governments, and the corruption of the courts, Daines has chosen to take what he sees as the path of least resistance: throwing western Montanans under the bus.
We recently asked if the Daines Compact places the tribe at the top of the sovereignty food chain? His testimony confirms that to be the case.
Instead of discussing the real issues at hand:
- That the CSKT have no legal standing on their 10,000 claims, or
- That the compact creates tribal reserved water rights out of thin air,
- That his legislation will expand tribal jurisdiction and control over non-Indians
….Daines’ ommissions ensure that his peers are able to ignore the disgusting details of his legislation, with the hope that they are as incompetent and unwilling to do heavy lifting as he himself is.
So in one fell swoop, one small but aggressive tribe will set the course for all future water rights settlements in the west.
But not to worry, Senator Daines believes he has spared us all the cost and heartbreak of costly litigation in Montana. He must also subscribe to the Tim Fox theory that Montanans are poor and won’t be able to litigate to protect what Senator Daines proposes to take away from them. If that isn’t the epitome of government corruption and cynicism, we don’t know what is.
Frankly the whole hearing itself was a ridiculous display of the kind of pandering that Congress has given to tribes for decades.
So with that, we have a couple of questions worth considering:
Will President Trump buy into the Daines’ “fear of tribal litigation” solution, or will he see through the P.R campaign and recognize Daines’ weakness and inability to lead when faced with the aggression of a corrupt and litigious tribe in western Montana? Just how important is Montana to President Trump?
The fact that both Daines and Jon Tester support this legislation, and Steve Bullock’s gutting of the 2015 Montana legislature to get it over the finish line should tell President Trump all he needs to know about it.
For a 33 minute recording of the $3019 discussion excerpted from the full hearing, use this link: S3019 Hearing 2020 06 04
To see the recording of the whole 1 1/2 hour hearing, including other legislation being pushed in the Indian Affairs Committee, visit this link: Senate Indian Affairs, Full Hearing
A PDF Copy of the Daines Introduction to S3019 can be found at this link.