Western Montana Water Rights

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GOT WATER? HOW ABOUT THE RIGHT TO USE IT?

The issues discussed throughout the pages of this blog arise from problems created or advanced by the Federal Government, the State of Montana, and the Confederated Salish Kootenai Tribes elite and their attorneys.  Not individual tribal members.

They also stem from the willingness of the state of Montana to cede its land and water resources, and its constitutionally mandated responsibilities and jurisdiction over water to the United States and CSKT tribal governments under the guise of an “Indian water settlement.”

This blog was established because our local traditional media stifle public discourse and debate on these very serious issues. They choose to ignore our precarious position by failing to seriously look into Federal Indian Policy run amok, refusing to print opinions and letters that differ from their own personal views, or worse yet, “censoring and revising” letters ahead of their publication.

Sadly, we all have lost the significant history of this very special place, and the actions of our respective governments have created the strife and divisiveness that now exists within our families and communities.

It is our sincerest hope that you find this website helpful in your journey to stay informed about the Flathead (Confederated Salish and Kootenai Tribes) Water Compact.  It is brought to you by Concerned Citizens of Western Montana and is a collaborative effort.

We appreciate your opinions, concerns, comments, and suggestions.  You can reach us via the CONTACT page, or comment on any post or page.

Throughout the pages of this blog the use of the term tribe is intended to mean tribal government, not individual tribal people, many of whom are our friends and neighbors.

You can FOLLOW the blog by scrolling down the left side of this page and clicking on the gray FOLLOW button.  Just type in your email address and you will be notified each time a new post has been added.

Perhaps with the help of your eyes and others focusing on this problem, we can bring forth solutions for impactful and positive change concerning this most serious issue. Heaven knows our governments have not done so.

Background

Montana is unique in its efforts to settle federal reserved water rights.  In 1979 the state legislature created a compact commission allowing for political appointments to a commission that was given the authority to negotiate federal reserved water rights settlements with the federal government and the various Indian tribes in the state.

At the time, the CSKT and the federal government fought this approach, arguing that the state could not adjudicate the tribe’s water rights fairly.  Little did anyone know then, they were almost correct, however it was non-Indian water rights and Constitutional protections that would ultimately be sacrificed by the State in its effort to settle with this tribe.

The current iteration of the Flathead Compact was completed in January 2015 and was ratified by the Montana legislature in April of 2015.  It consists of roughly 1,500 pages with the appendices and maps.

All of the Montana reserved water rights compacts were supposed to QUANTIFY the federal reserved water right for each federal reservation of land. 

The Flathead Compact is the only Montana compact that does not provide a quantification of the amount of water necessary to fulfill the purpose of the reservation. 

Montana failed to provide this and other information to legislators or citizens because they knew the compact would not have been ratified if the public understood what the State had really given up in the compact.

When asked about the missing quantification, the Compact Commission referred the public to the hundreds of water rights abstracts in the appendices to the compact.  We took up that challenge, and from our research, we estimate that between 28-48 million acre feet of water per year were ceded to the United States / CSKT in this compact, essentially federalizing the water of western Montana, and precluding new uses.  This amount is four times greater than the volume of water awarded to all other tribes in the United States combined thus far.  It is also 145 times greater than the tribal average as noted on the chart below:

Note: Although we tried to participate in the legislative process through our state representatives and other elected officials, we were unaware that state, tribal and federal governments had already aligned to force its ratification through the Montana state legislature using whatever means necessary.  Governor Steve Bullock artfully orchestrated a simple majority coup within the Montana legislature to force their controversial, flawed and illegal legislation over the finish line.  By changing house rules they ensured a fraudulent simple majority cram down in the 2015 Montana legislature. 

As of March 2020, it has not yet been ratified by Congress or the Tribes, however Senator Steve Daines has introduced S.3019 into the Senate Committee on Indian Affairs.  SB262 is the heart of the Daines’s Compact, and his support of it is a conscious decision on his part to support federal overreach, to the detriment of the people he is supposed to represent.

WHY SO MUCH WATER FOR THIS COMPACT?

1. It’s Built Upon Flawed Historical and Legal Assumptions

The Flathead Indian Reservation is the only “open” reservation in Montana, opened by Presidential Proclamation in 1909, and 90% of the population is non-Indian.

Montana allowed the Flathead Compact to be predicated upon a flawed and legally incorrect definition of the reservation, paving the way for an expansive taking of water and jurisdiction over it within reservation boundaries.  In it, the Flathead Reservation is defined to include:  “all land within the exterior boundaries of the Indian Reservation established under the July 16, 1855 Treaty of Hellgate, notwithstanding the issuance of any patent, and including rights-of-way running through the Reservation.”   

Both Indians and non-Indians that own and live on private fee land within the external boundaries of the former reservation should pay close attention to this definition, because it includes your property.

This flawed premise is used to rationalize giving all water running through and under the reservation to the CSKT tribal government, to the detriment of private land owners, and with little or no benefit to individual tribal members.

2. It Ignores History and Then Attempts to Rewrite It

The compact intentionally ignores the fact that the United States opened the reservation to settlement in 1908, as articulated in Article VI of the Treaty of Hellgate.  The vast majority of people living within the boundaries of the former reservation today are NON-INDIAN.  Additionally, many CSKT tribal members carry a mere 25% blood quantum, making them essentially non-Indian,  but acceptable for the purpose of membership in the CSKT federally chartered tribal corporation.

The proposed compact also ignores other court ordered settlements with the tribe through the Indian Claims Commission and U.S. Court of Claims, that were related to the entirety of the tribe’s ceded lands.

The terms of those settlements preclude the tribe from going after any additional damages throughout their ceded territory.  In order to receive their settlement monies for these claims, the tribes signed a stipulation agreement in 1966 that specified:

“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.”

3. It Creates Time Immemorial “Tribal Reserved Water Rights” Out of Thin Air

In a carefully crafted sleight of hand, and smoke and mirrors talking points, and omissions of truth and the facts, the Compact Commission exceeded their authority by creating non-existent “tribal reserved water rights” with a time immemorial priority date  (Note: the Commission was authorized by the legislature to negotiate “federal reserved water rights” that are strictly limited to the purposes of the reservation of land).

This was a transparent attempt to give the state legal cover for awarding vast amounts of water both on and off the reservation to the United States / CSKT with time immemorial priority dates.

THE “GRAND BARGAIN”

We would be remiss if we didn’t mention the most offensive and egregious aspect of the compact, something the Compact Commission calls the GRAND BARGAIN. 

We were first introduced to the GRAND BARGAIN in 2012 at a compact commission meeting, when Chris Tweeten offhandedly said:

“…. Jay (Weiner) talked about pushback 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….”

Their Grand Bargain Is enshrined in Appendix 4 of the Flathead Water Compact, and was renamed the Unitary Administration Management and Ordinance, as is codified in MCA 85-20-1902.  It’s 2022 name is the Flathead Water Management Board:

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. MCA 85-20-1902 Part 1, 1-1-101 (3.)

This tribally controlled and unaccountable board replaces state jurisdiction over every drop of water within the boundaries of the Flathead Reservation. As of December 2022, it is unknown exactly what provisions of  the Montana Water Use Act are “inconsistent” with the compact and no longer apply on the Reservation. 

Off reservation folks should pay attention, because it is to soon to determine if this board’s reach will go beyond the reservation boundaries due to the tribes claim for all of the water in Flathead Lake, and the interconnections of basins 76L (below Flathead Lake) and 76LJ (above and including Flathead Lake).  

Every Montanan should be concerned about the due process and equal protection violations that this board represents to everyone living within the reservation boundaries.  If our rights and constitutional protections can be so flippantly violated, there is no reason it can’t happen elsewhere.

No Quantification, No Impact Studies, No Amendments

During the Montana negotiation and legislative phases of seeking state ratification, state officials refused to complete any impact studies on their proposed settlement that would have helped the public and legislators understand its environmental, economic and legal impacts. The legislative “handlers” for the compact ensured that no Amendments were made to the compact.

With no quantification or impact studies, in 2015 the Montana legislature essentially ratified a blank check to the federal government.

NOTE:  DO YOUR OWN HOMEWORK.  TAKE NOTHING AT FACE VALUE. WE CERTAINLY DON’T HAVE ALL THE ANSWERS, BUT PROMISE TO DO OUR BEST TO PROVIDE YOU WITH INFORMATION NECESSARY TO UNDERSTAND THIS COMPLEX AND IMPORTANT ISSUE. 

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