© 2023 Concerned Citizens of Western Montana
This photo is a screenshot taken of the Montana Reserved Water Rights Compact Commission web page, as it looked in 1998. It clearly states that the compact commission was authorized to negotiate settlements with federal agencies and Indian tribes, claiming “federal reserved water rights” within the state.
The Reserved Water Rights Compact Commission was created by the Montana legislature in 1979 to:
- conclude compacts for the equitable division and apportionment of waters between the State and its people and the several Indian Tribes claiming reserved water rights within the state (MCA 85-2-701), and
- between the State and its people and the federal government claiming non-Indian reserved waters within the state (MCA 85-2-703).
A federal reserved water right is an implied right to water that is created when Congress or the president reserves land out of the public domain. These rights must be determined and resolved as part of Montana’s statewide adjudication process.
The quantification of a federal reserved water right on an Indian reservation usually follows a well-established route of determining the purpose of the reservation, the amount of water required to fulfill the purpose, measuring existing uses, and providing for future uses. The purpose of the reservation is determined by examination of the treaty or Executive Order establishing the reservation, and is a both a technical exercise (determining amount of water to fulfill the purpose of the reservation ) and an economic exercise (future growth and economic opportunities). Whether in negotiation or in a general stream adjudication, the course of quantification commonly involves the same kind of examination and approach albeit at different levels of examination. And a federal reserved water right can only exist on land owned by the federal government.
When the compact was ratified in 2015, there were seven tribes in Montana, and the state had already settled the federal reserved water rights of six of them using these time-tested procedures. Unfortunately Montana threw all of that out the window in its pursuit of a Flathead Compact settlement, and charted a new course that produced a fraudulent new kind of settlement that ceded most if not all of the water in western Montana to the United States / CSKT.
The Flathead Reservation is the only open reservation in Montana. This land status map created by the CSKT, shows the status of lands within reservation boundaries after it was opened to settlement and prior to the passage of the 1934 Indian Reorganization Act that stopped the allotment process. While this map is dated, we are using it because it depicts all of homesteaded and allotted lands within the reservation boundaries that encompass state-based water rights as well as Walton and Secretarial water rights.
The green areas of this map are part of the “reservation.” While quite beautiful, most of these reservation lands are desolate, mountainous, and unusable, however the high mountain lakes and streams are part of the headwaters of the Columbia River Basin, and they provide an important source of water for the reservation, and feed into the larger Flathead or Clark Fork Rivers.
The lands designated in the color beige on this map are private fee lands that are not part of the Flathead Reservation. These privately owned lands fall under the control and the jurisdiction of the state of Montana and have state-based water rights that are appurtenant to the land. Many of the land patents issued on these properties by the United States make reference to these water rights. A significant portion of the allotment land designated in the colors orange and brown on this map are now under private fee title ownership.
The most productive lands on the reservation include these private lands, many of which are located within the Flathead Irrigation Project.
With the exception of successors in interest to allotted lands that carry Walton and / or Secretarial water rights, “Federal reserved water rights” do not exist on private lands, even if they are located within the historic boundaries of the reservation. Nor do “federal reserved water rights” exist outside of the reservation boundaries.
See: Do You Have an 1855 Water Right?
In 2001, the CSKT made a proposal to the state of Montana, asking for:
- All water on and under the Flathead Indian Reservation is owned by the US in trust for the CSKT.
- The development of a Reservation-wide Tribal water administration ordinance to protect Indian reserved and aboriginal rights.
- Off reservation reserved and aboriginal consumptive and non-consumptive rights derived from their time immemorial use.
- A final settlement structured to promote economic efficiency and tribal self-government with cost-sharing by the state and federal governments.
While we can’t know for certain exactly when Montana agreed to these demands, we believe it was within a year or two after the proposal was submitted to the state. All of the requests made by the tribe in their proposal ultimately found their way into the Flathead Compact that is now being considered by the Water Court.
From 2001 forward, the Compact Commission began to focus its efforts on developing the rationalizations necessary to explain and provide legal cover for the state’s complete capitulation to the tribal government’s demands.
See: Why Didn’t Montana Call Off Negotiations?
The Tribe’s proposal presented a problem for the parties. The concept of “federal reserved water rights” wasn’t a viable vehicle with which to grant the tribe’s demands. Federal Reserved water rights exist only on federal reserved land, consist of a specific amount of water based on the purpose of the reservation, and cannot go outside of the reservation’s boundaries.
In order to achieve the tribes’ goals, the three governments conspired to create fictional Tribal Reserved Water rights. After three decades of “negotiations” the compacting parties effectively took federal reserved water rights off the table and replaced them with the newly created fictional time immemorial “Tribal Reserved Water Rights.”
It is these fraudulently created “water rights” that make up the entirety of the Flathead Water Compact.
After agreeing to forge this new pathway, the United States, Montana and CSKT fraudulently continued to let the public believe the compact was a federal reserved water rights settlement.
As of the writing of this article, the parties to the compact still have not provided a quantification of the amount of water awarded to the tribes in the compact. When asked about the quantification, the public was directed to the water rights abstracts in the appendices to the compact. We took on their challenge and have tabulated the volumes of water agreed to for each of the 300+ water rights abstracts in the compact appendices.
It is our belief that the parties’ failure to provide a quantification of the amount of water ceded in the Flathead Compact is intentional. This is because any such official quantification would shed light on the fact that the Flathead Water Compact is not a Federal Reserved Water Rights Settlement, and would highlight the obvious federal water and land grab that it is.
The simple truth is that the compacting parties did not want the Montana legislature and the public to see that 99.7% of the water in the compact consists of Tribal Reserved water rights for fisheries.
The compact ratified by the Montana legislature in 2015 was never intended to provide for the current and future needs of the Indian people. It instead serves to forever restrict the water uses of every person, Indian and non-Indian, living in western Montana.
The parties justified their deceit by burying it within the language of the compact. The compact begins by boldly declaring that it was the CSKT that reserved the Flathead Reservation, not the United States. Hence, the very first sentence of the compact begins with a lie. MCA 85-20-1901
WHEREAS, pursuant to the Hellgate Treaty of 1855, 12 Stat. 975, the Confederated Salish and Kootenai Tribes reserved the Flathead Indian Reservation
This statement alone should put people on notice that the Flathead Compact is not a Federal Reserved Water Rights settlement.
The compact goes on to establish the tribe’s stated (not the United States) purposes of the treaty and 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
It is these “aboriginal or tribal reserved water rights” that the parties agreed to create out of thin air, and that Montana agreed to cede to the United States / CSKT in the compact.
CSKT Wish Number One- All the Water Flowing Through, Over and Under the Reservation
To accomplish this leap from Federal to fictional Tribal Reserved Water rights, the parties to the compact also agreed to ignore the opening of the reservation to settlement and define the reservation as follows:
“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.
The map below is a Flathead Reservation land status map as of 1855. The compact defines the reservation by essentially removing all private land ownership and property rights from the mix. This fraud is the foundation for Montana’s cession of all the water flowing through, over and under the reservation to the United States / CSKT in the compact.
By rejecting the very real history of the opening of the reservation to settlement, the water rights of all private fee lands located within its boundaries are eclipsed by the millions of acre feet of water ceded to the tribe with time immemorial priority dates.
This is why the compact commission was careful to use language in public meetings that (with the exception of irrigation uses of water), the tribes agreed to protect EXISTING, VERIFIED USES OF WATER.
Pay close attention to that language, the words they used, and did not use.
This statement is saying that while the tribe might tolerate some existing uses of water, they did not agree to protect or to allow any “future uses” of water.
It also does not use the term water rights, and instead calls them “uses of water.” It is almost as though private land owners will no longer have property rights to the water that is appurtenant to their land, and in a post-compact world will instead be mere “users” of the tribal water right.
We can only conclude that the state’s goal to have the tribe agree to protect existing, verified uses of water is because they understood that the concessions made in the compact placed everyone’s water rights, if they even still exist, at risk.
The public must also keep in mind that because Montana ceded its jurisdiction over water within reservation boundaries, it is the tribally controlled Flathead Water Management Board that will do the “verification.”
We have to ask: Does the compact effectively void the land patents of 30,000 non-Indians and Indian Allottees living within the historic boundaries of the reservation, and what impact does it have on the land patents of off reservation lands throughout western Montana?
CSKT Wish Number Two: Cession of Montana’s Jurisdiction Over All the Water Within Reservation Boundaries
Once Montana took private property ownership and all of the water that went along with it out of the equation, it was able to fulfill the tribe’s second wish by giving up its jurisdiction over water within reservation boundaries to something the Compact Commission called “THE GRAND BARGAIN.” In August of 2012, Chairman of the Compact Commission Chris Tweeten admitted that they
“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” became what is now known as the Compact’s Unitary Management Ordinance (UMO) implemented by the Tribal Flathead Water Management Board.
When queried at this same meeting about his Grand Bargain statement, Tweeten followed up by saying:
“Well we recognize that it’s something that’s never been tried before, we’re basically inventing it from the ground up and as Jay said, we’re trying to make it as bullet proof in terms of fairness as we can make it.”
Montana sold Unitary Management as a concession by the tribe, because they were willing to place their water rights under it’s purview. What we have is a tribally controlled board that provides no due process within the state of Montana courts.
CSKT Wish Number Three – Off Reservation Tribal Reserved Water Rights
The parties to the compact then set the wheels in motion to fulfill the tribe’s third wish for off reservation reserved and aboriginal consumptive and non-consumptive rights derived from the tribe’s “time immemorial use” on lands that they ceded to the United States, who paid for them.
By ignoring Hellgate Treaty language stating that the tribe ceded all right, title and interest to their aboriginal territory, the parties developed talking points saying the tribe’s treaty allowed for such rights. This was accomplished by distorting Article III language in the treaty to declare that a right to hunt and fish “in common with the citizens of the territory,” gives the tribe time immemorial “legally colorable rights” to vast amounts of water throughout all of western Montana.
The parties also ignored the Indian claims Commission stipulation agreement signed by the tribes in 1966, that disposed of all future off reservation claims. The compact includes off-reservation claims to more than 35 million acre feet of water, most with a time immemorial priority date, that the tribe is legally precluded from claiming.
10,000 Claims: A Coercive Threat and Multi-Generational Legal Strategy?
As if all of this wasn’t bad enough, in June 2015, the US / CSKT filed 10,000 claims covering 2/3 of the state under the premise that the “Tribal Reserved Water Rights” Montana had agreed to in the compact also extend into their “subsistence range.”
The lands east of the Continental Divide were not ceded by the CSKT in the Hellgate Treaty, nor did the CSKT tribes file any grievances related to these lands with the Indian Claims Commission or the United States Court of Claims. The CSKT have no valid claim to them, tribal reserved or otherwise.
Throughout the Flathead Compact negotiation process, the 10,000 claims were wielded by all three parties as a threat in order to achieve legislative ratification of the compact. Shortly after the compact was ratified in 2015, the United States and CSKT filed approximately 10,126 claims covering 2/3 of the state of Montana, in order to “protect their interests,” should the compact not make its way all the way through the process, up to and including the current Water Court proceedings.
Because these claims have no foundation in the law, their intent is purely coercive, with the goal of continuing the threat of these claims and never ending litigation throughout the process, from legislative ratification all the way through to the Montana Water Court approval.
It is notable that Montana hasn’t challenged these unlawful claims, and if the overreaching Flathead Compact is approved by the water court, the compact (MCA 85-20-1901) provides that all of these claims will be dismissed WITHOUT PREJUDICE, meaning they can be brought up by the tribes in the future.
In 1989, the Federal government awarded to the CSKT treatment as a state under the Clean Water Act. There is little doubt that these claims are also intended to give the “color of law” to fictional “tribal aboriginal rights” that pertain to the water covering 2/3 of the state. Montana has essentially handed the tribe yet one more avenue for generations of litigation over water in the state, long after the adjudications of water rights are completed.
In Closing
In August 2012, Mary Sexton, Director of the Montana DNRC said this about the CSKT Compact:
Montana is a rising star out there, not a rising star, it is a star. As we’ve gone through this process and have been so successful. I believe the CSKT Compact is unique in and of itself, but it really is a work of art and I applaud all of you and those of you who have gone before for the work you’ve done on this….
The CSKT Compact is not a work of art. It is a product of fraud that ultimately had to be crammed through the legislature by breaking all of the rules to accomplish its ratification.
Montana not only agreed to the terms of this overreaching and fraudulent compact, they also participated in the creation of unlawful Tribal Reserved Water Rights, up to and including its cession of its constitutionally mandated jurisdiction over the water of more than 30,000 of its citizens.
By agreeing to go down the fraudulent pathway of creating fictional Tribal Reserved Water Rights, Montana paved the way for Federal and Tribal Control over all of the water in western Montana. Sadly, the mess they created could very well overflow into many areas of eastern Montana.
As the inventors of this lie, the parties were able to define these rights to be whatever they wanted them to be.
So the Trial Reserved Water Rights fraud began with the undermining of property rights and land patents on private lands within reservation boundaries, and then expanded to include water throughout the tribe’s western Montana “ceded territory,” and then was expanded again to claim water rights covering 2/3 of the state of Montana.
Will this become the roadmap for all other tribe’s to follow for their water settlements?
Will other Montana tribes want to re-open their settlements for the same expansive claims that Montana used to defraud its citizens out of? Or having already resolved their “federal reserved water rights,” will they simply file a new lawsuit to claim their “tribal reserved water rights?”
It is also notable that Montana has also agreed to mutually defend the Flathead Compact against all challenges, even those of its citizens to whom the state has caused great harm, expense and hardship.
Why did Montana participate in this sham?
Something very fishy is going on in the state of Montana.
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