LIBRARY

Welcome to our Water Rights Library.  This page will be used to provide links to documents and other information found throughout the internet that that might find helpful to you in learning more about this issue.

Over the years we have learned that by linking to internet sources for documents, the internet page often changes or disappears.  Sometimes the documents are no longer available for research. For that reason we have uploaded as many of the documents as we can for linking to this library. 

If you find any links that don’t work on this page, or on any page in the blog, contact us on the contact page with details, and we will do our best to update the link for your reference.

We have the following categories of documents. 

If you click on the links below, they will take you to the selected topic and documents associated with it, or you can scroll down the page to see the documents that are available in the library:

10,000 Claims

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Concerned Citizens of Western Montana

Documents

Videos

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Confederated Salish and Kootenai Tribes

CSKT Compact Proposal Documents

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Constitutions

CSKT  

 MONTANA

UNITED STATES

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Congressional Hearings

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Court Cases Pertaining to Flathead Reservation

Note: This list of court cases is not all inclusive, but was selected because we thought this information would be helpful to readers as it pertains to the Flathead Water Compact issue.

Rights of Way, Aboriginal Title

Flathead Irrigation Project

1950’s Indian Claims Commission and U.S. Court of Claims 

In 1946, well after the allotment and homesteading of Flathead Reservation lands, President Harry S. Truman signed the Indian Claims Commission Act. This Act created a special judicial body that allowed American Indian tribes to file all kinds of claims against the United States, and that such claims would be forever resolved. In other words, it provided that determination of a claim by the commission and any subsequent judgment payment would forever discharge the United States government, and prevent any other claims on the matter at hand.  As the Flathead Compact proves, forever, apparently is not forever.

The CSKT could and did participate in the claims commission process. 

To see the Indian Claims Commission documents for the CSKT, see the INDIAN CLAIMS COMMISSION section of the library.

1979 United State v Abell et al

The Flathead Water Compact has several references to the United States v. Abell lawsuit.  

During the summer of 1979, Congress held field hearings throughout Montana, in response to several lawsuits filed by the United States on behalf of all of Montana’s tribes and for other federal reserved water rights throughout the state.

The western Montana lawsuit, was United States v. Abell, No. CIV-79-33-M (filed April 5, 1979).

Abell consisted of a list of entities for which the United States wanted to reserve federal reserved water rights that included the Flathead Reservation / CSKT and allottees, and the Flathead Irrigation and Power Project (Indian and Non-Indian), irrigation, power and reservoir sites.

Nowhere in the lawsuit were off reservation claims, or water rights east of the continental divide, contemplated by the federal government on behalf of the Flathead Indian Reservation.

The historic record shows that 250 defendants throughout western Montana were named in the Abell lawsuit.  The testimony of federal attorneys at the time indicated that another 1,200 people could possibly be named.  

On 11/26/1979 District Judges Battin and Hatfield issued a joint Order dismissing all 7 suits on the basis of “wise judicial administration.” The US and some tribes appealed the order to the 9 Circuit Court which consolidated the appeals for review. On 05/23/1980 the CSKT moved to intervene in the appeal of Abell. All of the federal cases were argued before the court 07/15/1981.

1981 CSKT et al v Montana et al

In 1981, the CSKT filed a lawsuit against the state of Montana seeking to enjoin the state from adjudicating the tribe’s federal reserved water rights as authorized by the 1952 United States McCarran Amendment, which waived the sovereign immunity of the United States as a defendant in general stream adjudications. Defendants named in the lawsuit included Montana’s Attorney General, Director of DNRC, the Clark Fork River Basin Water Court Judge, and each of the Montana Supreme Court Justices.

In their complaint, the Plaintiff tribes demanded a judgment from the court declaring that the State of Montana has no jurisdiction to apply, administer or enforce the Montana Water Use Act, as amended, directly or indirectly, within the Flathead Indian Reservation, or with respect to waters that arise upon, flow through or under, border, or otherwise occur on that Reservation, or with respect to the plaintiff Tribes or any of their members

1970’s-1990’s Ciotti Cases

The Ciotti decision was the outcome of a series of lawsuits initiated by the tribe in the 1970’s that were intended to stop state administration of water on the reservation.  The tribe has been very consistent and quite successful in their objective to slow down development of new water claims and limit changes of existing uses of water by private landowners within reservation boundaries.

In 1996 a Montana Supreme Court held that the state of Montana was precluded from adjudicating water rights on the Flathead Reservation because the CSKT reserved water rights had not been quantified.  This is known as the Ciotti decision.  The decision said in part:

….. an applicant for a permit to use water within the exterior boundaries of the Flathead Reservation must prove that his proposed use does not unreasonably interfere with the Tribes’ reserved water rights. We hold that given the nature of Indian reserved water rights such a showing cannot be made until the Tribes’ rights are quantified …..  we further hold that DNRC does not have authority to grant water use permits on the reservation until that quantification is complete…….

 2012 Western Montana Water Users Assn v FJBC and Irrigation Districts

This suit was to prevent the Flathead Joint Board from voting to ratify the 2013 Stipulation Agreement also known as the Water Use Agreement

The CB McNeil ruling paved the way for two suits to be filed in the Montana Supreme Court.  In February 2013, the CSKT filed for a writ of supervisory control to try to circumvent the district court, and the Flathead Joint Board of Control Filed an appeal with the supreme court to overturn the writ of mandate from the McNeil ruling.  To access all the documents related to these two suits go to the Montana Supreme Court Docket Search for Closed Cases:  http://supremecourtdocket.mt.gov/ .  Type in SHUCK under case attorney, and both will come up.

The lawsuit and subsequent “unconstitutional taking” ruling forced a compact commission discussion of ”other options” to this agreement.  It is likely they found one through the collapse of the old Joint Board of Control, saying that the proposed agreement was no longer valid. As of August 2014, the Compact Commission has decided they will step in to “negotiate” for irrigators

2014 CSKT v. United States DOI, Montana Water Court and others

In this suit, the CSKT attempted to circumvent the water compact / irrigator water use agreement to have the federal government declare that the CSKT owns all the water.  Although the Tribe calls this a “narrowly tailored” suit, designed specifically to go after the irrigation water, it states as “fact” very dubious legal theories and rewrites of more than 100 years of history to claim they own all the water flowing through, over and beneath the Flathead Reservation.  They also lay the foundation for the claim that all of the existing private land on the reservation was never removed from aboriginal title and as such the homestead and allotment acts do not apply.  Would you be surprised to know that the CSKT were paid for the lands that they now claim they still own?

2015 Flathead Joint Board of Control vs. Montana Legislature

On Monday April 20, 2015, the Flathead Joint Board of Control and several individual members of the Board filed suit against the state of Montana to void the vote on the water compact.

The suit is based upon language in the compact concerning waivers of immunity  from suit. Article 2 Section 18  in the Montana Constitution states:

The state, counties, cities, towns and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a 2/3 vote of each house of the legislature.

Attempts were made on the house floor to change the language in the compact that would have removed this immunity issue and therefore the  2/3 vote requirement. However, Steve Fitzpatrick and the supporters of the compact successfully resisted this amendment as well as all others, and stopped the bill from going to house appropriations for scrutiny as well.

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Federal Laws Pertaining to the Flathead Indian Reservation

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Flathead Irrigation and Power Project

Irrigation Districts
The Flathead Irrigation and Power Project has three irrigation districts that serve to represent the irrigators whose lands are served by the project.

The Flathead, Mission and Jocko irrigation districts have a combined total of 11 elected commissioners and one appointed commissioner at large which makes up the representation of the 2,500 or so irrigators on the project.

These districts fall under Montana statutes, and were created because of a mandate from the federal government via 44 Statute 465 in 1926:

Pursuant to this act, three irrigation districts were formed in accordance with Montana State law.  These districts were the Flathead, Mission and Jocko, who executed repayment contracts with the U.S. on March 2, 1928, April 21, 1931 and November 13, 1934, respectively.

Because these districts are a form of local government, Montana left it up to the representatives of the majority of project irrigators to negotiate a “water use agreement” with the United States and CSKT tribal government wolves.

The Mission and Jocko Districts have 3 representatives each and the Flathead District has 5 representatives. At one time, the districts worked together under one joint board of control, but divisions caused by the Flathead Water Compact resulted in the collapse of that board.   

Acreage in the districts are approximately:

87,088      80% Flathead District
  7,038        6% Jocko District
15,112      14% Mission District

The history of the project has been confusing and conflicted because of a tug of war between the Confederated Salish and Kootenai Tribes (CSKT) and the non-Indian landowners who paid for the project.  Lands served by the project are 10% tribal and 90% private fee lands.

The Irrigator Water Use Agreement was called a private agreement between the tribe and irrigators and was originally intended to be an appendix to the compact is a further attempt to rewrite project history to give CSKT ownership of the all water in the project.  It proposed that in exchange for the relinquishment of water rights, irrigators will receive a one size fits all allotment of water that ignores historical use and many irrigators will receive significantly less water which is likely to force them to curtail operations or may ultimately put them out of business.

Former commissioners of the joint board, many with tribal leases and other conflicts of interest, were positioned to approve that agreement until irrigators awakened to find out what they were doing.  This caused a huge divide in the irrigation community that continues today.

After irrigator elections replacing compact and water agreement proponents, and the recall of two commissioners earlier in 2014, the FJBC (Flathead Joint Board of Control) for the Flathead Irrigation Project was reinstituted in May 2014. This was necessary because the former joint board was officially disestablished on 12/12/13, after two commissioners in each of the Jocko and Mission districts withdrew their districts from the FJBC collapsing it in an attempt to try to force the water use agreement on their constituents.

A 1948 federal act mandated the project management be turned over to the water users/irrigators once project construction debt was repaid.  This federal law however did not prevent the CSKT from trying to take over the management of the project although 90% of lands served by the project are owned by non-Indians.

Starting in 1926, a series of repayment contracts were initiated on 05/12/1928, 02/27/1929, 03/28/1934, 08/26/1936 and 04/18/1950.  Some of those documents are linked below:

REPAYMENT CONTRACT DOCUMENTS

1927  Repayment Contract Document
1949  Repayment Contract Document
1950  Flathead District Repayment Contract Document
1950 Jocko District Repayment Contract Document 3
1951 Mission District Repayment Contract Document

OTHER IMPORTANT FLATHEAD PROJECT DOCUMENTS

1930  Flathead Power Development – Scattergood
1938  BIA – Flathead Project
1946  Walker Report
1985  FIP Comprehensive Review 10/85 – Volume 1
1985  FIP Comprehensive Review 10/85 Volume 2

1989 Tarr Memo – Filing of Water Rights Claims in General Stream Adjudication

1993 Forfeiture of Rights to Federal Reclamation Project Waters
1994  Dutton Report
2001  Bureau of Reclamation – Flathead Project

2007  DOI Denial of CSKT Transfer of FIP Management via 638 Contract

2019   Flathead Irrigation Project Audit Request submitted to Daines who promptly made sure it never saw the light of day

U.S. CONGRESSIONAL DOCUMENTS RELATED TO FLATHEAD PROJECT

1907 Secretary of Interior Letter – Irrigation of Flathead Reservation
1908 Estimate for Irrigation of Flathead Reservation
1909 Lands Reserved for Power and Reservoir Sites
1910 Withdrawal of Power Sites
1910 Secretary of Interior Letter – Certain Power Sites
1910 Secretary of Interior Letter – Land Reserved Flathead Reservation
1912 Senate Report – Lands Bordering Flathead Lake
1914 House Report Investigate Irrigation Projects on Indian Lands
1915 Appropriation for Irrigation
1916 Secy of Interior Letter – Flathead Land Reserved Power / Reservoir
1926 Supplemental Appropriations Flathead Irrigation
1927 President of U.S. – Flathead Irrigation
1929 President of U.S. Flathead Irrigation
1930 Flathead Power Development
1934 Survey of Indians – On Developing Flathead Power
1939 Secretary of Interior Deferring Collection of Construction Costs
1939 Deferring Collection of Charges Flathead
1946 Supplemental Appropriation
1947 Deferring Collection of Construction Charges
1948 House Adjust Irrigation Charges Flathead
1948 Senate Adjust Irrigation Charges Flathead
1949 Amending Act to Adjust Irrigation Charges Senate
1949 House Report – Eliminating Lands from FIIP
1949 Amend Act to Adjust Irrigation Charges House
1950 Amending Public Law 554 Flathead Irrigation
1950 Amending Provisions of 1948 Act
1950 Eliminate 12 Acres Flathead Irrigation Project
1962 Appropriation for Flathead Irrigation and Power Systems
1964 House Appropriation for Completion of Irrigation and Power
1964 Senate Appropriation for Completion of Irrigation and Power

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Flathead Water Compact

Navigable Flathead Compact Legislation Documents:

      MONTANA DOCUMENTS RELATED TO THE FLATHEAD WATER COMPACT

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Homestead Brochures / Flyers

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Idaho

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Indian Claims Commission and United States Court of Claims

In 1946, President Harry S. Truman signed into law the Indian Claims Commission Act, creating a special judicial body allowing Indian tribes to file claims of all kinds against the United States government.  Any claim against the United States, extending back to the American Revolution, could be brought before the Commission.  To be valid, however, the claims had to be brought within five years of the passage of the Act.  Any claims not brought before August 13th, 1951 would be forever barred by the statute.  Despite the deadline, claims that arose from events prior to 1946 continue to be brought by Indian tribes.  The important goal of the Indian Claims Commission has been largely forgotten or ignored, as courts persist in allowing tribal suits. 

The CSKT filed two different petitions with the Indian Claims commission under different Docket numbers:  Docket 61 and Docket 156.  They also requested and received permission from Congress to file claims with the United States Court of Claims.  That Docket number is Docket 50233.

The CSKT Indian Claims Commission Docket 156 was dismissed because the claims were similar to those filed with the Court of Claims Docket 50233 under the act of July 30, 1946, which had authorized the suit by the tribes a year before the Indian Claims Commission was established.

Here are copies of the original petitions for each of these documents:

Docket 61 MAR 29, 1950 PETITION
Docket 156 JUL 24, 1951 TRIBE PETITION
Docket 50233 September 24, 1951 PETITION

Here are documents specific to the CSKT:

Indian Claims Commission Act of 1946
1978 Amendment to Indian Claims Commission Act
1978 Judicially Determined Indian Claims Map Indian Claims Commission

CSKT CLAIMS RELATED TO PAYMENT FOR CEDED LANDS & OTHER ISSUES:

DOCKET 61

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

DOCKET 156

Docket 156 JUL 24, 1951 TRIBE PETITION
Docket 156 FEB 24, 1971 ORDER DISMISSING EIGHTH CAUSE OF ACTION

CSKT INDIAN CLAIMS COMMISSION SETTLEMENT FUNDS

UNITED STATES COURT OF CLAIMS

DOCKET 50233

Docket 50233 September 24, 1951 PETITION

CLAIMS RELATED TO PAYMENT FOR RESERVATION LANDS:

Docket 50233 January 20, 1969 CSKT VS U.S. 401 F 2d 785
Docket 50233 November 14, 1969 CSKT VS U.S. 417 F 2d 1340
Docket 50233 January 22, 1971 CSKT VS U.S. 437F2d 458
Docket 50233 October 13, 1972 CSKT VS U.S. 467 F 2d 1315

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Maps

CSKT Land Status Maps

    CSKT Claims Maps

   Other Maps

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Montana Land and Water Alliance

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Montana Legislator Information Current Session

Montana, State of

Tribal State Revenue Sharing Agreements (all tribes)

The document below shows the amount of alcohol, tobacco, gasoline and TERO (Tribal Employment Rights Ordinance) tax revenue Montana shared with the tribes.  This information used to be proudly reported in the annual Montana Tribal relations reports, but stopped after we made this report public.  It’s too bad the state website doesn’t transparently provide details of other “revenue sharing agreements” with the tribe such as massive amounts of federal Department of Transportation monies, or Bonneville Power and other federal agency money.

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People’s Compact

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Treaties

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Tribal Sovereignty

United States

CRS (Congressional Research Service) Report:  Indian Reserved Water Rights Under the Winter’s Doctrine:  An Overview

DEPARTMENT OF INTERIOR CIRCULARS / LETTERS

GENERAL LAND OFFICE REGULATIONS Concerning Right of Way Over Public Lands and Reservations for Canals, Ditches and Reservations and Use of Right of Way for Various Purposes – June 6, 1908

CIRCULAR 102:  Laws and Regulations Related to the Reclamation of Arid Lands by the United States – April 29, 1912

CIRCULAR 178: Openings and Sales of Indian Lands – October 5, 1912 

GENERAL RECLAMATION CIRCULAR:  Laws and Regulations Relating to the Reclamation of Arid Lands by the United States February  6, 1918 as Amended to September 6, 1918

Solicitor letter discussing the filing of irrigator water rights 1989

Letter to CSKT Denying a 638 contract for Flathead Project Management 2007

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Walton Water Rights

Walton rights are water rights of a successor to an allottee who satisfies the criteria found in Colville Confederated Tribes v. Walton, 460 F. Supp. 1320 (E.D. Wash. 1978); Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981); Colville Confederated Tribes v. Walton, 752 F.2d 397 (9th Cir. 1985).

Elements of a Walton water right that must be proven are:

  1. The claim is for water use on land formerly part of the Flathead Indian Reservation, and the land was allotted to a member of an Indian tribe;
  2. The allotted land was transferred from the original allottee, or a direct Indian successor to the original allottee, to a non-Indian successor;
  3. The amount of water claimed for irrigation is based on the number of acres under irrigation at the time of transfer from Indian ownership; except that:
  4. The claim may include water use based on the Indian allottee’s undeveloped irrigable land, to the extent that the additional water use was developed with reasonable diligence by the first purchaser of land from an Indian owner.
  5. After initial development, the water claimed must have been continuously used by the first non-Indian successor and by all subsequent successors.

If these elements can be verified, your water rights claim should be assigned a priority date of July 16, 1855, the date the Flathead Reservation was established. The amount of water claimed for irrigation is “limited to that amount appropriated with reasonable diligence after the passage of title from the original Indian allottees (or their heirs), and maintained by continued use by each subsequent successor.”

Source:  Water Rights Administrative hearing, State of Oregon, related to the Klamath River Walton Water Rights Claims

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Water Court, State of Montana

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Water Resources Survey Books (Western Montana)

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Montana Water Rights and other Related Information

Water Rights books A and B include filings for water appropriation claims / rights filings from Flathead and Missoula Counties in the early 1900’s including those claims filed by the United States for the Flathead Irrigation Project and claims filed for Kerr Dam.  These files are rather large, about 400 pages (50meg) each so please be patient for them to load.

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Federal Reserved Water Rights Legal and Other Pertinent Articles

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2 thoughts on “LIBRARY”

  1. tvfmontana said:

    I’ve been directing people with questions about the CSKT compact here. Some want to read it for themselves. Some say they can’t find it here. Me neither. Did we miss it or the link?

    Reply

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