© 2024 Concerned Citizens of Western Montana
Article VII C.1.d. of the Flathead Compact legislation MCA 85-20-1901 contemplates the question as to Montana’s jurisdiction over some or all of the claims in the compact:
The Decree shall be filed by the Parties as a consent decree in Abell, or in Federal court as a new proceeding after the dismissal of Abell conditional on agreement by the Parties to seek the necessary State, Tribal, and Federal ratification of the Compact, if it is finally determined in a judgment binding on the State that the State courts lack jurisdiction over, or that the State court proceedings are inadequate to adjudicate some or all of the water rights asserted in Abell.
For more information on the Abell lawsuit, please reference Objecting to the Objectors.
NOTE: This language pertains to the tribe’s compact created Tribal reserved water rights, both inside of and within reservation boundaries. It also pertains to most of the tribe’s 10,000 claims covering 2/3 of the state of Montana.
Does anyone want to bet that this jurisdictional issue is a future tribal lawsuit already in the waiting?
If such a plan is indeed the case, it is highly likely that the CSKT would file such a lawsuit once the water court makes a decision on the compact and opens the rest of the basins in western Montana up for adjudication.
We would be remiss if we failed to consider such a scenario because despite evidence to the contrary, the tribe insists that it owns all of the water, and because the compact pretty much agreed to that ownership, the tribal government believes it should have the final word on what happens to the water in western Montana. Not the state.
There is little doubt in our mind that the tribe will fight any state adjudication of water in western Montana, particularly in Basins 76L and 76LJ.
See: No one tells the CSKT what they can or can’t do
Thinking Ahead
So what will happen when the Water Court eventually gives the water compact a thumbs up or a thumbs down?
Notwithstanding the fact that the compact will effectively be 100% implemented, and much of its damage already done, the Water Court decision will either be appealed to the corrupt Montana Supreme Court by the compact parties (U.S, Montana, CSKT), or the Water Compact objectors.
From there, the Compact can be directly appealed to the U.S. Supreme Court if it decides to take the case without going through other federal appeals courts.
Another tact might be for the compact parties to not appeal a negative Water Court ruling on the compact and instead strong arm and wreak havoc upon the people of Montana by initiating a proceeding through the federal courts to adjudicate the 10,000 claims covering 2/3 of the state instead (the compact provides for this).
This was also confirmed when the state suggested this in its December 2022 brief to the Water Court:
Without the Compact, 10,109 claims will need to be adjudicated, impacting 51 of Montana’s adjudication basins, many of which already have preliminary or final decrees in place.1 (Mont. Dep’t of Nat. Resources, Update 2019 – CSKT Compact vs. Adjudication of CSKT Claims (2019); see also APS Decl., ¶ 8.)
The parties will suffer significant hardship if the stay is not extended. If the Water Court declines to continue the stay, there will be public notice of the entry of these claims in one or more preliminary decrees and the opportunity to file objections whenever a preliminary decree including any of these claims is issued by the Court. See Mont. Code Ann. §§ 85-2-232, -233; see also APS Decl., ¶ 7. Should the stay be lifted prior to the Compact’s final decree by the Water Court, the implications stretch far beyond the boundaries of Basins 76L and LJ, because the adjudication of the more than 10,000 claims filed in 51 adjudication basins on behalf of the tribes would also have to proceed. (APS Decl., ¶ 8.)
If adjudicated by this Court, the Tribal claims would presumably be considered prima facia proof of their content and would therefore be decreed “as claimed” in a similar fashion to how this Court recently issued the Turtle Mountain Band of Chippewa claims, which were filed in trust by the United States Department of Justice. Id., ¶ 11. Such a large-scale, unexamined decree process across 51 of Montana’s 85 basins would present a serious risk to current senior water users who have invested heavily in defending their water claims, and many of which have been decreed previously by this Court. Ibid.
See: Have the Tribe’s 10,000 Claims Come Home to Roost?
Old Joe is full of Surprises. Not.
As if to throw another wrench into the process, and perhaps to protect the United States and CSKT’s interests in the headwaters of the Columbia River Basin and the vast amount of water flowing through western Montana, we see that the Biden administration has nominated a CSKT tribal attorney to become Montana’s first native American federal judge.
What are the odds that Montana’s Governor and Congressional delegation will be happy to go along for that ride and confirm her?
Biden nominates Montana’s 1st Native American Federal Judge
Source: NBC News and Native News Online
HELENA, Mont. — President Joe Biden nominated Danna Jackson to serve as a federal judge in the U.S. District Court for the District Court of Montana.
Jackson is currently the tribal attorney for the Confederated Salish and Kootenai Tribes.
If the Senate confirms her nomination, she would be the first American Indian to serve as a federal judge in Montana.
Montana U.S. Sens. Steve Daines and Jon Tester issued statements following the nomination.
Tester supported the decision saying Jackson has been consistently fair.
“Danna Jackson has a proven track record of applying the law with fairness and integrity throughout her legal career, and I have no doubt that she’ll bring these high standards to the federal judiciary and District of Montana. As a born-and-raised Montanan, her extensive experience at every level of Montana’s legal system makes her well qualified to serve our state and I’m looking forward to getting her nomination across the finish line with bipartisan support in the Senate,” Tester said.
Daines says he plans to look into her background to see if she’s the right fit.
“Federal judges in Montana are crushing our way of life because they legislate from the bench. Montanans want judges who will bring balance to our courts and uphold the Constitution. Unfortunately, President Biden failed to seriously consult with me prior to making this nomination. This is inexcusable and a missed opportunity. I look forward to reviewing Ms. Jackson’s background and record to evaluate if this nomination is the right fit for Montana.”
Poor Steve. How dare the “president” fail to seriously consult with the pompous a$$ that gave us the water compact in the first place. If he weren’t so dangerous, this guy really would be laughable.
So What are the Plans for Montana’s 1st Native American Federal Judge?
We have no idea, but we wanted to make sure you were aware of this news.
We ask readers to consider the full extent of its potential implications.
We cannot think of anything good that could come of placing one more biased judge in the courts to serve the special interests of a tribe that is doing its best to restore ownership of the state of Montana back to the tribes.
Unless this corrupt system somehow collapses upon itself saving us the trouble, at some point the people will have no choice but to refuse to comply with the garbage that the political elites at the state and the federal levels continue to foist upon us ad nauseum.