Docket 61: The CSKT Off Reservation Aboriginal Title Claim

© 2018 Concerned Citizens of Western Montana

Clark Fork Basin Task Force Meeting 08/02/2011  discussion about the CSKT water compact “negotiations.”

QUESTION – Will the compact specify or cap the flow and volume of the CSKT reserved water right?

ANSWER BY JAY WEINER (COMPACT COMMISSION ATTORNEY) – Maybe. This is a complicated issue. If the reserved right is quantified numerically (either by volume or flow rate), it will likely be larger than the available supply. The Compact Commission will seek sideboards on the use of the reserved right to protect existing water users.

It’s impossible to understand the off reservation components of the CSKT compact, SB 262, Jon Tester’s S.3013, or the tribe’s 10,000 claims when the actual historic context is considered in the mix.  Take for example the payment made by the United States to the CSKT in 1966 as a final settlement for their off reservation ceded lands:

DOCKET 61:  THE INDIAN CLAIMS COMMISSION OFF RESERVATION CEDED LANDS ABORIGINAL TITLE CLAIM
1950	CSKT Attorneys file a petition with the Indian Claims Commission related to off reservation lands ceded to the United States in the 1855 Hellgate Treaty. The petition, describing the lands and their appurtenant waters, claimed that 14.7 million off reservation acres were ceded and only 2 ½ cents per acre was paid for them, suggesting their value was “at least” $18.4 million or  $1.25 per acre, the minimum price of public lands at the time the lands were taken.  This petition became docket number 61, and was referred to as the CSKT Indian Title or Aboriginal Title Claim.
1958	The original petition was amended to reduce the amount of acreage ceded by the CSKT to a more accurate figure of 12 million acres.
1959	The Indian Claims Commission found that the effective date of the 1855 treaty was March 8, 1859, the date of its Senate ratification.  The case then moved to a determination of the acreage involved and the value of the lands as of March 8, 1859, in order to determine if the U.S. payment for said lands was in fact, unconscionable.
1965	Between 1959 and 1965, the court went through an intensive land classification and valuation process that included appraisers from both sides.  After consideration of the facts presented, the Commission determined that the the difference between the $593,000 consideration paid to the tribes by the United States, and its 1859 fair-market value of $5.3 million, was unconscionable and petitioner was entitled to recover $4.7 million, less whatever offsets the U.S. was entitled to under the Indian Claims Commission Act. On November 30, 1965 the United States filed an amended answer claiming offsets of $4.3 million.  The tribes appealed, and the parties ultimately agreed that the offsets would be settled at $275,000 conditioned by the agreement of the CSKT Tribal Government, Bureau of Indian Affairs and Indian Claims Commission, as well as plaintiff dismissal of all other appeals entered for Docket 61.
1966	The proposed settlement was taken to the tribal membership, the majority of respondents in support of the settlement.  On July 1, 1966 the CSKT Tribal Council unanimously voted to accept the proposed settlement by passing Tribal Resolution 1977, APPROVING AND ACCEPTING THE OFFER TO COMPROMISE AND SETTLE THE ABORIGINAL TITLE CLAIM OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES, DOCKET NO. 61 INDIAN CLAIMS COMMISSION. The parties entered into a stipulation agreement for final judgment that included the following condition: “The judgment shall finally dispose of all claims or demands which petitioner has asserted or could have asserted in this case against defendant, and petitioner shall be barred from asserting all such claims or demands in any future action.”

We would like to take a moment to let the Indian Claims Commission final judgment stipulation agreement language sink in:

“The judgment shall finally dispose of all claims or demands which petitioner has asserted or could have asserted in this case against defendant, and petitioner shall be barred from asserting all such claims or demands in any future action.”

So how is it then, that in 2011 the state could be discussing the scope of the tribe’s water rights as “more water than exists?”

How is it, that in 2015, the state of Montana questionably ratified the CSKT water compact, ceding to the tribes time immemorial claims to vast amounts of off reservation water, including all of Flathead Lake, throughout western Montana?

And how could it be possible, that in June of 2015, empowered and emboldened by their success in Montana’s political swamp, the United States and CSKT promptly upped the ante by filing 10,000 claims covering 2/3 of the state of Montana, including time immemorial claims for all of the deep aquifer water that lies beneath the Flathead Reservation?

With the final language of the tribe’s Indian Claims final settlement agreement,  in what universe are they able to go from being barred from asserting future off reservation claims to claiming water not only in their ceded off reservation lands, but also to lands covering most of the state?

PONDERING THE DEPTHS OF THE MONTANA SWAMP

We can’t help but wonder what the Montana Reserved Water Rights Compact Commission was doing over its decades of so called “negotiations” with the CSKT.

Apparently instead of completing actual due diligence, the state chose to follow a pathway that ignored the history of the tribe’s claims and settlements  while deliberately attempting to erase it from the public record with a 1,500 page intentionally complicated document.  And to their credit,  they managed to kick it over the legislative finish line without ever divulging what really was ceded in it to the United States and CSKT tribal governments.

Montana instead chose a detour of sorts, using out of context decisions by activist judges, and state employed attorneys to convey that the overly aggressive claims of the CSKT were “legally colorable.”

And of course let’s not forget that state Senator Chas Vincent assured the people he had read (almost) “all the Jurisprudence” prior to putting his support behind the compact in the Montana legislature. If he had read the jurisprudence, then, how could he have missed these basic facts?  Perhaps he only read what the agenda driven Compact Commission had pointed him to.

This begs the question as to what standard should be applied to our Governor, Attorney General and Compact Commission staffers, and some state legislators who also happen to be attorneys?  Does their unbridled advocacy for such an outrageous agreement come out of their own incompetence, or is it agenda driven with a willful disregard of the rule of law, the constitution, and the history of western Montana?

Does one call that ignorance?  Negligence?  More importantly could it be considered a fraud perpetrated by all of them upon the citizens of the state of Montana?

For more information about Original and Aboriginal Indian Title, check out this 1947 article by Felix Cohen, Associate Solicitor of the Department of the Interior:  Original Indian Title

CSKT related Indian Claims Commission Docket 61 Documents

Docket 61 MAR 29, 1950 PETITION
Docket 61 AUG 03, 1959 FINDINGS OF FACT
Docket 61 AUG 03, 1959 OPINION OF THE COMMISSION
Docket 61 AUG 03, 1959 INTERLOCHUTORY ORDER
Docket 61 SEP 29, 1965 ADDITIONAL FINDINGS OF FACT
Docket 61 SEP 29, 1965 OPINION OF THE COMMISSION
Docket 61 SEP 29, 1965 SECOND INTERLOCHUTORY ORDER
Docket 61 AUG 01, 1966 FINDINGS OF FACT IN COMPROMISE SETTLEMENT
Docket 61 MAR 10, 1967 FINDING OF FACTS ON ATTORNEY FEE
Docket 61 MAR 10, 1967 ORDER ALLOWING ATTORNEYS FEES

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A Tale of Two States: Montana and Idaho

©2018 Concerned Citizens of Western Montana

Montana’s Approach to Indian Water “Settlements”

After decades of calling the CSKT demands for 1) all the water flowing on over, and under the reservation 2) off reservation “indian reserved” water rights and 3) unitary administration of that water “non-starters”, the people of Montana were comfortable that their water rights were being protected by the state through the Montana Reserved Water Rights Compact Commission.

Over the years, Montanans began to pay little attention to state water rights “negotiations” with the Confederated Salish and Kootenai Tribes.  They had no idea that In the early to mid-2000’s, the compact commission made the decision to cave in to the CSKT’s decade long unreasonable demands by agreeing to cede:

1. All of the water flowing through, over and under the (diminished) Flathead Indian Reservation,
2. Off Reservation water rights to vast volumes of off reservation water including all of Flathead Lake,
3. Bare legal title to 100% of irrigator’s water in a federal irrigation project and
4. Ceding its constitutionally mandated jurisdiction over all that water

Once they were “in”, the state then hired an attorney to make their capitulation more palatable to the public.  This was accomplished by creating the necessary talking-points, developing a “legal legs” rationalization for what clearly would be an unconstitutional taking and putting lipstick on the tribe’s unreasonable claims by declaring them “colorable” under the law.

At some point in the process they also made a conscious decision to provide no “quantification” of the volume of water to legislators or the public or any studies of its impacts on the economy of western Montana.

As of the writing of this post, the state still has not provided an official volume of water.  To note, at a Clark Fork Basin Management Taskforce meeting in 2011, the following discussion took place:

Comment – I have heard a rumor that the compact will not quantify the CSKT reserved water right. Without quantification, I am unsure how adverse affect will be determined…. Will the compact specify or cap the flow and volume of the CSKT reserved water right?

Answer by Jay Weiner – Maybe. This is a complicated issue. If the reserved right is quantified numerically (either by volume or flow rate), it will likely be larger than the available supply.

Here is a copy of the state’s non-quantification “quantification” given to Montana legislators ahead of their vote on the compact in 2015:  Chas Vincent Legislator Package: Quantification

Adding insult to injury, state attorneys also worked in concert with the CSKT to develop what they thought to be a bullet proof document, placing negatively impacted property owners in a legal straight jacket while at the same time giving themselves immunity from any damages.

There is little doubt Governor Steve Bullock and Attorney General Tim Fox believed this settlement to be the finest legal document they’ve ever endorsed or been a party to in their “distinguished” legal and political careers.

Despite their best efforts, the CSKT water compact was still too controversial to ratify easily.  However with some arm twisting, CSKT dark money, failure to disclose pertinent information, making a mockery of the People’s government, and widespread threats of decades long litigation, the parties to the compact were able to achieve an unconstitutional simple majority ratification vote in the Montana legislature in 2015.

In June of 2015, after the compact’s questionable ratification in the legislature, the United States and the CSKT filed 10,000 claims covering 2/3 of the state:

These claims remain a dark “threat of litigation” cloud over the state of Montana.  Since filing them, tribal attorneys have successfully used them to thwart the Montana adjudication process and to prevent any examination of the tribe’s illegal and unreasonable claims.  They currently have a stay in the water court until January 2020.

Meanwhile in Idaho……

Notwithstanding the actions of Montana with respect to the Confederated Salish and Kootenai Tribes water compact, the state of Idaho has been working hard to protect its citizens from off reservation claims of the United States and the Coeur D’Alene tribe.

In 2008 the Idaho Court entered an order to commence the  Coeur d’Alene-Spokane River Basin Adjudication.

In March of 2014, the United States filed 353 federal reserved water rights claims with the state of Idaho on behalf of the Coeur d’Alene tribes

Objections and responses to the claims were filed by various parties and were consolidated into one sub case in early 2015.  The goal was to separate the issues of entitlement (legality of the claims) and quantification, addressing the issue of entitlement (compliance with the law) before any quantification would be addressed in the court.

Motions for summary judgment were filed by Idaho, the United States, the Coeur d’Alene Tribe, and others.

In May of 2017, Idaho’s Fifth Judicial District issued an order that included the following crucial legal decisions and ground rules for any claims that were to proceed forward in the adjudication process:

• A determination of the primary and secondary purposes of the reservation
• A declaration that the United States is not entitled to federal reserved water rights outside the boundaries of the reservation
• Setting ground rules for the priority dates of any water rights
• Denying the United States’ claim for lake level maintenance of Lake Coeur d’Alene as a matter of law

A copy of that decision can be found at this link: 05/2017 Idaho Fifty District Court Order Pertaining to Requests for Summary Judgment

We’d like to note that the parties to this decision have appealed it to the Idaho Supreme Court, so this is far from being resolved, but it is a necessary and important step in the process of protecting Idaho citizens from an Indian Water Rights nightmare in their state.  Their success speaks volumes related to what a federal reserved water right is and is not.

NOTE:  The document linked above is IMPORTANT to our situation and we hope you take the time to read it if for no other reason than to understand the path Montana could have and should have taken with respect to the United States and CSKT claims.  It is a stark reminder of Montana’s negligence and its complete failure to step up on behalf of protecting its resources, its constitutionally mandated authority, and the rights of all of its citizens.  Instead of choosing a pathway that would have stopped or diminished any federal overreach, it empowered the United States and CSKT by endorsing the federalization of the clean abundant water in western Montana.

CSRBA Website

Why Did Montana Choose a Path that Ignored its Responsibilities and the Rights of its Citizens?

We will leave that answer up to you, but want to end with this:

In August of 2012 Chris Tweeten explained in a public meeting that he saw the Montana Reserved Water Rights Compact Commission as a trail blazer for future Indian Water Rights Settlements in the country.  He noted that once the CSKT water compact was ratified, he wanted to plan a “national scope” party to celebrate the conclusion of their journey.  He even proposed that Hillary Clinton be invited to the celebration.  At the time we were new to the water rights “negotiations” and had no idea what he meant by the term trail blazer.

However after more than six years and thousands of hours of research later, it is our firm belief that when the history books are written, the MRWRCC will be remembered for its deception, as well as the divisive tactics they used to coerce people into  a reluctant and distasteful acceptance of the CSKT water compact.

Plain and simple, it was an attempted fraud upon the people of Montana.  It could very well turn out to be the biggest scandal in Montana’s history.

Montana or Idaho?  Idaho or Montana?  Which state would you rather have looking out for you?

 

 

 

CSKT Compact Proponents Still Stunningly Uninformed

@2018 Montana Land and Water Alliance

Conveniently following the FARM threat letter discussed in our last post, editorials appear across the state from state representatives and senators extolling the same misinformation contained in the FARM piece. The coordinated strategic talking points say:

• If Congress does not approve the CSKT Compact, then Montanans’ water rights would be tied up for decades as the CSKT pursue their off-reservation federal reserved rights
• That the CSKT have “prima facie” off reservation water rights across 2/3 of Montana, that are valid until proven otherwise
• That everyone will have to hire their own lawyer to protect their water rights, but their defense would be unsuccessful against the Tribes’ time immemorial priority date.

Each of these statements are untrue, but those are the talking points the compact proponents are running with. The latest installment of the rolling talking points is Representative Zach Brown’s recent Op-Ed in the Billings Gazette, “Congress Should Pass the CSKT Compact“.

The latest talking point, echoed by Zach Brown, is that there is a 2019 deadline, after which the compact is null and void.  This is untrue. The Compact states that if Congress has not approved or funded the compact, or the state has not funded it, any party (Tribes, US, State) may withdraw from the compact.  The likelihood of Montana withdrawing from the CSKT Compact as long as AG Fox and Governor Bullock are in office is zero. The battle is now at the federal level in any case.

Here is our lengthy response, too long even for an op-ed:

CSKT Compact Proponents Still Stunningly Uninformed

Catherine Vandemoer, Ph.D., Chair Montana Land and Water Alliance

In a recent Op-Ed for the Billings Gazette, Representative Zach Brown tries his best to inform Montana citizens why Congress should pass the CSKT Compact.  But in doing so, he severely misstates the definition of a “federal reserved water right” and mixes up state and federal law concepts. He concludes, as do other compact proponents, with the usual threat that litigation against Montana citizens is inevitable and unwinnable if they don’t support or Congress doesn’t pass the CSKT Compact. Does the representative know what he is advocating for?

Representative Brown asserts that if the Compact is not passed by Congress, extensive litigation and uncertainty will ensue because “the CSKT will move forward with legal claims to define their federally reserved water rights in the MT Water Court….numbering in the thousands and covering approximately two-thirds of Montana…”  Does representative Brown know that “federal(ly) reserved water rights” are defined by the Winters Doctrine and subsequent case law are restricted to the federal Indian reservation land, not “approximately two-thirds of Montana”?  The only “federal reserved rights” of the CSKT are on the Flathead Reservation, not off-reservation and across Montana. Mr. Brown should study all the other Tribal compacts in Montana, the Winters Doctrine, and the Treaty of Hellgate before asserting that the CSKT off-reservation claims are “federal reserved water rights”.

Next, Representative Brown argues that the CSKT off reservation claims “are considered valid unless proven otherwise”.  Here he incorrectly and improperly mixes state and federal law.  The concept of “valid until proven otherwise” is a state law concept known as the “prima facie” argument.  In contrast, a federal reserved water right is by federal law restricted to the reservation and must be quantified and proven in a court of law or determined through negotiation before it is considered “valid”. Only state law-based water rights carry the privilege of “prima facie”—valid until proven otherwise.  There is literally no basis in law or the Treaty of Hellgate for the CSKT off reservation water claims and no application of the state law-based “prima facie” status to them.  Representative Brown should be challenged to prove his assertions.

To add insult to injury, Representative Brown then states that failure to act on the CSKT Compact will “force existing water users to defend their rights in court”, and that the “1855 and time immemorial priority dates” will  make it “nearly impossible for an existing water right holder to successfully defend their right”.  This is the usual threat regularly employed by compact proponents to scare their constituents with misinformation as to the true legal scope of the Tribes’ water claims and their ‘prima facie’ status in order to coerce them into supporting the Compact.

What compact proponents like Representative Brown do not want you to know about the CSKT Compact is that if passed, it won’t stop litigation or provide certainty for Montana citizens. None of the Tribes’ or United States’ claims are dismissed with prejudice—meaning finally dismissed. The CSKT Compact if passed by Congress is a lawyer’s dream—endless litigation!

The CSKT tribal government, after having promised not to file its 10,000 off reservation claims if the legislature passed the CSKT Compact, filed them anyway, and there they sit, hanging as a permanent cloud over the entire state of Montana. Who allowed the CSKT tribal government to file those claims in the Water Court despite the legislature’s passage of the Compact, and who allowed them to dishonor their pledge to the people of Montana? Is our state government representing all Montanans, or just a few? Montana failed all its citizens.

Representative Zach Brown sits on the Water Policy Interim Committee (WPIC) and reported that the WPIC recently submitted a letter to Secretary Zinke urging passage of the CSKT Compact.  Their letter was based in part on the arguments above, which when stripped to their core, just consist of advocacy  for the CSKT at the real expense of Montana citizens. Brown should focus on answering the question that the state has refused to answer since 2012: how much water was awarded to the CSKT under the Compact?

When politicians use the weight of their legislative office and membership on key committees to misinform and scare their constituents, and to advocate only for a certain group of citizens over others, they violate the civil rights of all Montanans to fair representation by their elected officials and due process under law.