© 2020 Concerned Citizens of Western Montana
We begin this post with a question:
The United States, State of Montana, CSKT, and Senator Daines are counting on it.
If you oppose the Daines S.3019 Montana Water Rights Protection Act solely because of the $1.9 billion settlement money, or its land swap free for all, or the award of the National Bison Range to the tribe, then you have played right into the red herrings strategy that Senator Daines has dangled out there for you to latch onto. This is because the real danger of the compact is SB262, quietly inserted into S.3019 as “the compact” with not one word, not one drop of water in it changed since it was questionably ratified in the Montana legislature.
For the better part of a decade, a small but dedicated core group of people have worked hard to help others understand the scope and magnitude of the Flathead Water Compact.
We maintain that it was meant to be complicated in the hopes that instead of trying to understand it, people would defer to Compact Commission experts and attorneys who used contrived talking points, flawed assumptions and legal theories, and their much favored threat of litigation to “sell” it. We were often told that this tribe was “different” and that this was the best “deal” we could get.
We have often grappled with the difficulty of explaining the compact commission disaster that became SB262, and now is the heart of the Daines’ water compact. How is it possible to explain a 1,500 page legal document that contains a multitude of flawed assumptions, rewrites history, and is full of unconstitutional landmines?
Some experts have recently indicated it will be impossible to implement the compact if it ever is fully ratified. If true, and we believe it is, irrigators and other landowners will never know from one year to the next whether they have a reliable supply of water for their needs.
Such uncertainty will necessarily bring diminished property values, unpredictable livelihoods and reduce food production. It will also serve to increase the government created divide that pits family members and neighbors, and Montana citizens against one another.
We hope that you have already educated yourself on this issue, and understand that it is not the Bison Range or other Daines’ goodies that pose an imminent threat to our way of life in western Montana. The real danger is SB262, a document that US Senators and Congressmen will never see, because it has been boiled down to a sentence or two in S3019.
If you haven’t studied this issue, and want to know more about it, please read on.
FLATHEAD: MONTANA’S ONLY “OPEN” RESERVATION
In addition to any trust responsibility it has to the tribes, the federal government is constitutionally obligated to protect the rights and property of all citizens. That is why it was instituted in the first place.
While the feds may not like it, they also have a legally binding contractual obligation to irrigators, and are accountable to all the people residing here primarily because of their invitation to the public to purchase, homestead and settle on PUBLIC LANDS in western Montana more than a century ago.
(click on photo for a pdf copy of the brochure)
Article VI of the Hellgate Treaty allowed for the allotment and opening of the reservation. Flathead is the only OPEN RESERVATION in Montana, opened by Presidential Proclamation in 1909. The allotment and opening of the reservation was simply a fulfillment of the terms of the treaty as codified in federal law 12 Stat.975.
There was never any discussion of diminished property rights for settlers. In fact, federal documents of the day referenced the “former Flathead Indian Reservation.”
(click on photo for a pdf copy of this Flathead Villas brochure)
The land patents issued to settlers and Indian allottees in western Montana are no less important than they are anywhere else in the country. Land patents are the highest evidence of right, title, and interest to a legally defined area of property, yet the CSKT compact proposes to diminish their importance, up to and including the valuable water rights that are appurtenant to those lands.
NO QUANTIFICATION = UNCERTAINTY FOR LANDOWNERS
In 2011, the compact commission attorney was asked if the compact would cap the flow and volume of the CSKT reserved water right. He responded that “if the reserved right is quantified numerically, it will likely be larger than the available supply.”
As of the writing of this post, Montana has never provided a quantification of the amount of water ceded to the US / CSKT in their SB262 compact. Without known limitations on any one person or entity’s water rights, there can be no certainty for the water rights of others. Unfortunately the state’s cession of vast amounts of water to the tribes explains why Montana never provided legislators or the public with an official quantification.
When asked about the quantification, the public was referred to the hundreds of pages in the abstract appendices. Again, their intent was that no one would look at the “complicated” details.
SB262 awards at least 27.7 million acre feet of water to the United States / CSKT. An astounding 98.9% of that water carries a TIME IMMEMORIAL PRIORITY DATE, and 70% of it is located outside of the reservation boundaries. The abstracts also show that SB262 precludes the use of a minimum of 48 million acre feet of water throughout western Montana. These claims virtually render the water rights of all other western Montanans, including those valuable claims of allottees, successors in interest to allotees, and secretarial water rights holders, meaningless.
In 2014, the Montana Department of Natural Resources and Conservation published the Clark Fork & Kootenai River Basins Water Plan. It claims that less than 2% of the total water supply in the region is consumptively used.
If true, then why should anyone have to lose a drop of water in this compact? Because Montana ceded most if not all of it to the United States and CSKT.
“TRIBAL RESERVED” LEGAL FICTION
The vast amount of water ceded in the compact consists of fictitious tribal reserved water rights. By declaring in SB262 that the tribes reserved the reservation and not the federal government, this foundational lie was used to “create and then settle” unheard of time immemorial “TRIBAL RESERVED WATER RIGHTS.”
This legal fiction also allows the United States and CSKT Tribal government to expand their reach into Montana’s headwaters, as well as water located outside of the reservation, into the tribe’s aboriginal territory, and beyond.
Not only do these governments not have the authority to “create and then settle these legally fictitious and fabricated claims, huge questions exist concerning any possible jurisdiction over them.
Article VII of the Compact allows an option for the decree to be filed in federal court if it is determined that the state or state courts lack jurisdiction over some or all of the water rights asserted in the compact. This language was necessary because of the contrived and unlawful TRIBAL RESERVED WATER RIGHTS included in SB262.
Ultimately if SB262 is ratified, it is highly likely that neither state or federal courts will have jurisdiction over these claims. We should also consider the possibility that tribal court may be the only jurisdictional option concerning water disputes simply because they are “tribal (not federal)” reserved water rights.
SB262: IRRIGATORS BEWARE
Are you an irrigator whose land is served by the Flathead Irrigation Project?
It is a fact that 90% of the lands served by the project are privately owned by non-Indians and Indian Allottees. So why then does SB262 give the CSKT government bare legal title to 100% of the project water?
What do you think will happen to agriculture when irrigators are beholden to the CSKT for their water deliveries and needs?
We compared irrigation project water deliveries published in the 1946 Walker report to the one size fits all water deliveries in SB262. Depending upon the duty of water for irrigated lands, irrigators will lose between 40-70% of their water with SB262.
That is an unconstitutional taking without compensation, and it ignores existing irrigator contracts with the United States. There is nothing in SB262 that proposes to reduce the per acre charge to irrigators for water, to compensate them for the loss of their livelihoods, or for the loss of the value of their land because of diminished water rights.
In 2019 Irrigators requested that Senator Daines take steps to secure an audit of both the irrigation and power divisions of the project, because a strong case can be made that the BIA / CSKT have illegally used project money through Mission Valley Power, for non-Irrigation purposes.
Should the Daines compact be ratified before that audit takes place, the BIA and Tribes will never be held accountable for their illegal actions, nor for the financial losses to irrigators.
We believe irrigators deserve to know what happened to project money, and the role the tribes have played in it, before the government takes away their water too.
ADMINISTRATION OVER WATER
Today, 70-75% of the population within the historic reservation boundaries are non-Indian. Between 50-60% of the land is privately owned, by non-Indians and Indian allottees.
SB262 deceptively gives the tribe ownership to most if not all of the water that serves a large portion of those lands, and for that reason, they also will control administration over it.
SB262 creates an unaccountable, politically appointed, and tribally controlled Unitary Management Board, placing non-tribal citizens under the jurisdiction of a political, litigious and vengeful tribal government for their current and future water needs.
Montana knew exactly what it was doing, and the chairman of the compact commission admitted as much at an August 2012 Compact Commission meeting:
“…. Jay (Weiner) talked about push back from the tribe at some point about what they’re being asked to give, and I think, that in addition to the point that Jay made, the response is to remind the tribes about the Grand Bargain, and the fact that we agreed to do this extraordinary thing, frankly, with respect to agreeing to subject or to remove non-Indian rights on the reservation from the jurisdiction and control of the state, and place that somewhere else at the tribe’s request….”
This “Grand Bargain” referenced by Tweeten, became what is now known as the Compact’s Unitary Management Ordinance (UMO) in SB262.
Under SB262, the Montana Water Use Act will no longer apply to anyone living within reservation boundaries: The Unitary Management Ordinance found in Appendix 4 of the CSKT Water Compact says the following:
Upon the Effective Date of the Compact, this Ordinance shall govern all water rights, whether derived from tribal, state or federal law, and shall control all aspects of water use, including all permitting of new uses, changes of existing uses, enforcement of water right calls and all aspects of enforcement within the exterior boundaries of the Flathead Indian Reservation. Any provision of Title 85, MCA, that is inconsistent with this Law of Administration is not applicable within the Reservation. Source: Unitary Management Ordinance (Page 5) 1-1-101 4.
The compact also immediately treats 30,000 Montanans differently from all other Montanans by reducing the amount of water that can be used from an exempt well.
We also believe that because of the water rights SB262 awards in Flathead County and Kalispell, the jurisdictional reach of the UMB will expand outside of the reservation and into that area as well. At a minimum future growth and development in that area will be influenced by this unaccountable and tribal government controlled board.
SB262 obliterates any notion of equal treatment and due process under the law for at least 30,000, and perhaps as many as 360,000 Montanans, when it comes to their water and property rights.
NO FINALITY = AN UNCERTAIN FUTURE
In 1979, the United States filed a lawsuit that covered water rights for the tribes, claiming no off reservation water for them. In response to the lawsuit, the tribe admitted at a congressional field hearing in Ronan, that “The Confederated Salish and Kootenai Tribes Council has never claimed water or water rights outside of the border of the reservation.”
So how is it then that in 2015, Montana’s SB262 solution to this lawsuit cedes vast amounts of water, both on and off the reservation to the United States / CSKT?
Why then, did Montana allow the feds to file10,000 water rights claims covering 2/3 of the state of Montana after the legislature “ratified” SB262?
Why were these claims never challenged by the state? By looking the other way, has Montana in some legally perverted way given them “color of law” standing in a future activist judge’s court, while potentially compromising the water rights of most Montanans?
SB262 dismisses all of these claims and others “without prejudice” meaning they can be brought up again in the future.
While Senator Daines says the tribe’s 10,000 claims and others, will be dismissed with prejudice when his compact is ratified, are you willing to take his word for it?
We are not attorneys, but believe the language in his bill cleverly and deceptively does not allow that to happen, setting the state of Montana up for generations of litigation.
Regardless of the chess game that will be played out in our state, there is little doubt that these claims have laid the foundation for future generations of litigation by the tribes, and greatly expands federal jurisdiction over our valuable water.
DEEP WATER AQUIFERS
It is also noteworthy that in their 10,000 claims, the CSKT (but not the United States) asserted ownership of 35 million additional acre feet of water (above SB262 amounts) for all of the deep aquifer water located below the reservation. These claims all carry time immemorial priority dates.
What do you think that might mean to the water rights of everyone living in western Montana?
THE NEXT SHOE: A “DEPENDENT” SOVEREIGN’S TREATMENT AS STATE
The CSKT website says this:
In 1989, the Confederated Salish Kootenai Tribes (CSKT) applied and received approval for “treatment as a state” (TAS) status under Section 106 of the Clean Water Act. The CSKT Water Quality Program began computerizing existing water quality data for the Flathead Reservation.
At the Lake County meeting in Ronan last month, the Commissioners and their attorney discussed the implications of this authority, with respect to all of the water that the US and CSKT will own and control if SB262 / S3019 Daines’ Compact is ratified.
Although the state and feds did no studies of the impacts of this, it doesn’t take a genius to know that this federally granted “tribal jurisdictional authority” will further add to the uncertainty concerning the water we will be able to use on our lands and for our households.
Considering the US/CSKT 10,000 claims conundrum, and Montana’s failure to address them, could the CSKT treatment as state for water quality also impact water users in eastern Montana?
This compact was made intentionally complicated, so no one could possibly know or begin to understand its implications.
The Montana legislature ratified a blank check because most of them did not read the bill, nor did they even care about off reservation water rights, tribal jurisdiction over non-Indians, or even the amount of water they were ceding to the United States.
Simply put, it was a political vote, not an informed vote. And because of the immunity provisions for the Unitary Management Board, SB262 also was not legally ratified according to the requirements of the Montana Constitution.
The U.S. government officially recognizes nearly 600 Indian tribes in the contiguous 48 states and Alaska. These federally recognized tribes are eligible for funding and services from the Bureau of Indian Affairs, either directly or through contracts, grants, or compacts. Source: USA.gov
Only about 40 out of these 600 or so tribes have settled their water rights to date. What do you think will happen if the CSKT get all that water?
We would like to leave you with one more thing to consider:
The Montana “compacting” solution for federal reserved water rights was a complete failure that brought us the SB262 monstrosity that is hidden within the pages of the Daines S3019 compact.
Montana’s actions, coupled with its pro-Indian institutional bias has compromised the process so badly, it is highly unlikely that any Montanan could ever get a fair adjudication of their water or property rights.
Remembering that nearly all of Montana comes from lands that were at one time “ceded” by the various tribes in the state, the question then becomes this:
Was this result intentional on Montana’s part, or was it due to their negligence?