Western Montana Water Rights

~ keeping western Montanans informed about the Flathead Reservation Water Compact

 the federal reserved water rights of the Confederated Salish and Kootenai Tribes (CSKT).  After all, that is why the Compact Commission was established by the legislature in 1979 with a view toward quantifying these rights outside of a court of law through negotiated settlement.  But as Concerned Citizens studied the proposed Compact, we found that the elements of the negotiated settlement really had nothing to do with quantifying the federal reserved water rights of the CSKT.  The Compact is instead about control.

Property Rights and the Compact

The implications of the proposed CSKT Compact on property rights throughout Montana have received scant attention, but remain serious obstacles to simply “approving” the Compact based on general platitudes. The four major elements of the Compact, of which excerpts are provided below, describe a vigorous assault on property rights of Montanans that are far outside the scope of the quantification of a federal reserved water right for the CSKT. A federal reserved water right is defined as the amount of water to fulfill the purposes of the (federal) reservation—no more, no less. Following are excerpts from the Compact itself that describe the serious issues that still must be resolved in order for the Compact to gain broad public acceptance.
Definition of the Reservation
“All land within the exterior boundaries of the Flathead 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”
This definition is the definition of “Indian Country” used for law enforcement purposes. This definition promotes the idea that irrespective of valid, non-Indian fee patented land existing within the boundaries of the reservation, in other words, that all land is still in “reservation status”. This is the approach the Tribes are using in their federal lawsuit against “everyone” in claiming that no non-Indian has a valid land claim or water claim, and that chain of “aboriginal title” was never broken. This means that all those private fee lands should not be paying taxes to the county which would, of course, eviscerate County services based on tax revenue. This definition lays the foundation for the Compact’s claim that the Tribes own all the water and land within the exterior boundaries of the reservation.
Irrigator Water Use Agreement (WUA)
The “agreement” with irrigators states the following:
“This Agreement and the Compact specify the terms under which the United States and the FJBC [Flathead Joint Board of Control] agree to withdraw and cease prosecution or defense of all claims to water, whether arising under Federal or State law, held in their names and filed in the Montana General Stream Adjudication, and whatever permits and other rights to the use of water recognized under State law that are held in their names for use on lands served by the FIIP [Flathead Irrigation Project]”
The water use agreement requires the irrigators to relinquish their water rights claims to the ownership of the CSKT. In return, the Tribes will allow the irrigators to use a certain amount of water for their crops which is far less than historic use. This element of the WUA was ruled an unconstitutional taking of property rights without compensation by District Court Judge C.B. McNeil in February 2013. Importantly, the Tribes do not own the irrigation project nor the waters used to irrigate private fee lands within the project.
The Unitary Management Ordinance
The basis of the Compact’s proposed water administration program derives from the Compact Commission’s “grand bargain”:
“…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.” ~Chris Tweeten, Chairman, Montana Reserved Water Rights Compact Commission, August 2012
Despite the fact that Article IX of the Montana Constitution directs that the state owns all the water in the state and that further, the state is responsible for the administration of the waters of the state, the “Grand Bargain” removes the reservation population out from underneath the protection of the laws and Constitution of the state and puts them underneath the Tribes’ “Unitary Management Ordinance”. Here is the specific language in 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 [State water law] that is inconsistent with this Law of Administration is not applicable within the Reservation”
Water administration by the state may very well be a non-delegable function, and the legislature cannot remove a class of its citizens out from underneath its protection just because of where they live. The Unitary Management Ordinance is unconstitutional, no matter who appoints or who sits on the Tribes’ unitary management board. Moreover, Tribal jurisdiction over non-Indians is not supported by state or federal law.
Off-Reservation Instream Flow Claims
The proposed Compact asserts instream flow claims off-reservation and across western Montana. Moreover, the Tribes and the Compact Commission continuously threaten that if the Compact is not approved as is, they will file claims for water even east of the Continental divide. However, the Treaty of Hellgate did not reserve water off the reservation for the CSKT—it only secured access to usual and accustomed places for fishing, hunting, and gathering. Off-reservation lands within the Tribes’ aboriginal area were ceded and sold to the United States. The CSKT filed timely claims in the Indian Claims Commission and Court of Appeals and were further compensated for land and water both on and off reservation. Further, whether an instream flow right exists to support the treaty right to take fish is unsettled law. Finally, off-reservation water claims are not federal reserved water rights.
Summary
Several key issues remain to be solved in the proposed CSKT Compact for it to pass legal, constitutional, and legislative muster, and to secure the broad support of the public. To illustrate that there were alternatives to the proposed Compact, a group of legislators developed an “alternative” compact that lies within the framework of federal and state law. The proposed alternative compact and comparison with the existing compact can be found here.