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Pachyderm

Pachyderm Meeting Minutes

Announcements:

  • Linda Sauer reminded the group about the Last Chance Patriots speaker – The New World Order’s Crusade against Christians & Conservatives:  Outlawed.”  Presented by Shahram Hadian.  Shahram will be speaking at the Ronan Community Center on Tuesday, September 14th at 6:30pm. Everyone is invited to join!
  • Tracy Sharp – Tracy discussed what is going on with the Montana redistricting efforts.  Tracy would like everyone to submit map proposals to the redistricting committee prior to September 15th.  The maps should show an east/west split with Bozeman/Missoula in separate districts.  We need to outnumber the Democrats in this effort.  If we do not do our part, the Dems are using the opportunity to secure a Democratic seat in the United States Congress representing Montana.  Do you want to end up like California?  We need to ensure this process follows House Resolution 506 which will keep the east/west split.
  • The next LCRW meeting will be Monday, September 11 at 12 noon.  The speaker will be Linda Sauer.  Linda will be discussing her ideas about how to get more of the younger generations to be part of the conservative movement and join the Republican party.
  • Linda Reksten briefly discussed her efforts to get the local Montana State legislators and our County Commissioners to work closer together.  The first meeting went well – working towards getting things done.  Everyone is welcome to attend the meetings held on the first Tuesdays of each month at 10am.

Dr Catherine (Kate) Vandemoer was our guest speaker for the meeting. I have attached her supplemental notes on the presentation for you in addition to the notes that I took during the meeting.

Kate moved to Lake County in 2012 for a 6 month assignment and is still here!

We all agree it is important to protect Montana’s water.  The Tribes have water rights.

We have lived through the biggest water issues since 1908.  If the rest of the tribes in the Unites States get water rights, there will not be any water for non-tribal members!

Kate has worked with the tribes around water issues for 30 years.

It was not fair to Montana that the extent of the Compact was not known to the citizens of Montana.

Discussion occurring between 2015-2020.  The Compact is called the Water Rights Protection Act but it isn’t.  We need to make this work for Montana.  We are now in  a place for making it work for Montana!  Indians have federal reserve water rights.  The government also reserved enough water to go along with the land reserved for each reservation.

The origin of federal water rights was in Montana with the Winters Doctrine in 1908.  The tribes have a reserved amount of water to fulfill the needs of the tribes. Senator Daines promised to eliminate the off-reservation water rights.  The Unites States worked with each tribe to resolve all issues historically.

Flathead Reservation signed an agreement stating that all claims were done during the the Indian’s Claims Court.  Flathead reservation went beyond their boundaries and agreements.

The map that Kate handed out shows the tribes subsistence area and the associated water rights with it which went across Montana.

In 1979 there was a Senate hearing and the tribe said they did not want any additional water rights.  Montana should have used preclusions to prevent the tribe from extending their water rights.

Our enemy is not the tribe – it is the Federal Government

1855 – treaty was signed with the tribe

1871 – water control given to the states by the federal government

1904 – allotment

1908 – Flathead Irrigation – Winters Doctrine

1920 – Federal Power Act was signed – creation of Kerr Dam project

1924 – Indian Citizenship – tribes became citizens of the United States

1934 – Indian Reorganization act – set up tribes as Federal Corporations and brought back tribes – this protects irrigation rights.

1973 – ISDEAA -Indian Self Determination (PL-93-638)

Flathead Irrigation is a combined irrigation/hydro project.  The compact broke this up and causing some fighting.

Obama began taking back the states water rights

In the compact there are capital “R’s” and small “r’s”.  “R” is for the reclamation project.

“r” refers to any project.

Waters of the Unites states

– all water in the water shed is included.

Federal control over Montana’s water cracks away at the State Water Administration.The tribes have filed over 10,000 water rights claims.  The state always owned water rights which has transitioned to tribal water rights.

Paragraph 1 of the compact states pursuant to the Hellgate Treaty, we the tribe reserve the right to the water.  This raises a new type of water rights that is unique to the Flathead Reservation.

CSKT Compact is not an Indian settlement – went outside of Montana’s laws.  The compact was incorporated into the Daines bill.  Montana gave water rights to the Federal Government – gave up article 9 of the Montana State Constitution.

Today we do not go to the District Court for water issues – today we have not place to go.  Tribal members lost their individual water rights in the compact.

HR133 – US Mexico Agreement – affects Western United States.  The compact was discussed/heard in Congress in the foreign affairs committee under the US Mexico agreement.  This is how it went through Congress.

Daines’ bill says we are implementing the compact

There are two gigantic mistakes:

1 – Federal recognition of water rights recognize state law – Montana can not give up their authority!

2 – This gives Montana an opportunity to fix the Water Compact issues.

Kate feels that Zinke will not help Montana.  Dr Al can help Montana in partnership with Rosendale.

The Montana Water Court needs to hear the fight to fix this – the fight is not over.

If you have a problem, you can not solve it by using the same people who caused the problem.  Our governor is pro-compact.  IF this is not addressed by our Attorney General or our legislature it will go to the US Supreme Court.  It is crucial that Congress takes responsibility- Kate feels it is possible to solve this.

This information must be publicized.  We need to write letters to our Attorney General and write letters to our newspapers.

PL93-638 – Secretary of Interior is supposed to sign off on the compact.  An agency is not able to change the law.

There is extreme corruption in the government.

PL638 contract enables the tribes to take over services that are specific for the tribes such as their medical care.

The group thanked Kate for speaking!

Frank announced the next speaker for the September 24th meeting will be Mark Clary – manager of the Lake County Office of Emergency Services

The CSKT Water Compact

Flathead River
  • The CSKT Compact, Montana Water Rights Protection Act:
    Similar Federal Actions; and Making it Work for Montana

  • Montana Land and Water Alliance

  • U.S. CONSTITUTION

Article VI.  Debt.  The Constitution, Laws, and Treaties are the supreme Law of the Land.  Operative word is “and”:

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Article I. Powers Granted to Congress.  Indian Tribes are not “foreign nations”.

Section 8, Clause 3. “ to regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes”

  • MONTANA CONSTITUTION  

Article I:  Compact with the United States. All provisions of the enabling act of Congress (approved February 22, 1889, 25 Stat. 676), as amended and of Ordinance No. 1, appended to the Constitution of the state of Montana and approved February 22, 1889, including the agreement and declaration that all lands owned or held by any Indian or Indian tribes shall remain under the absolute jurisdiction and control of the congress of the United States, continue in full force and effect until revoked by the consent of the United States and the people of Montana.

  • MONTANA WATER RESOURCES ACT—TITLE 85 MCA

The purpose of the MT Reserved Water Rights Compact Commission is to:

“…conclude compacts for the equitable division and apportionment of waters between the state of Montana, its people and the several Indian tribes claiming reserved water rights (MCA 85-2-701) within the state, and the state, its people and the federal government claiming non-Indian reserved water rights within the state (MCA 85-2-703)

  • DEFINITION OF A FEDERAL RESERVED WATER RIGHT

A federal reserved water right arises when the United States withdraws a parcel of land from the public domain for a specific purpose—like an Indian Reservation, National Park, National Forest, etc.—there is impliedly “reserved” an amount of water to fulfill the purposes of that federal reservation of land.  This was decided in a Supreme Court case in 1908 called U.S. v Winters regarding irrigation from the Milk River in Montana.  This is known as the “Winters Doctrine”.

A federal reserved water right has the following characteristics:

  • A discrete amount of water to fulfill the purpose of the reservation. For most reservations the purpose is found in the treaty…irrigation, homesteads, industry, etc.

  • The water right is geographically limited to the land that was reserved. On the map given to participants, each of the Indian reservations—except Flathead—have a discrete amount of water that is geographically limited to each reservation. Similarly, a federal reserved water right for a National Park or Forest is limited to the geographical boundaries of that National Park or Forest. There are no off-reservation water rights for any federal reservation, including Indian reservations.

  • The priority date of the federal reserved water right is the date on which the land was reserved. The priority date for the Flathead Reservation is 1855, NOT “time immemorial”.  This is another violation of the law.

ALL THE WATER RIGHTS CLAIMED BY THE CSKT/UNITED STATES IN THE CSKT COMPACT AND DAINES BILL IS A “TRIBAL RESERVED WATER RIGHT”.  It is thus NOT a federal reserved water rights settlement as defined by federal law or by Montana law.  The CSKT decided that it, not the U.S. government, reserved the reservation.  Thus, the entire settlement is about ‘tribal reserved water rights’, not federal reserved water rights.  Tribal reserved water rights do not exist in law or anywhere in the United States.

TIMELINE OF IMPORTANT AND RELEVANT DATES

  1. 1855 Treaty of Hellgate

  2. 1871 Desert Lands Act. Transferred the power to manage a state’s water to the States and away from the federal government.  States have the power to regulate all “non-navigable” streams.

  3. 1902 Reclamation Act—built the irrigation projects across the west using proceeds from the sale of public lands.

  4. 1904 Flathead Allotment Act (FAA)—allotted lands to individual Indians who wanted them.  This fulfilled Article 6 of the Treaty of Hellgate.  The United States was allowed to sell the surplus, unallotted lands to the homesteaders.

  5. 1908

    1. Amendment to the FAA—This established the Flathead Irrigation Project as a federal project to make “the reservation productive”. The project is statutorily required to serve ALL irrigable lands regardless of ownership.  “The Flathead Irrigation Project was built for everyone. Established that when the costs of construction of the Flathead project were paid off, the landowners would become the operators and managers of the project ‘under conditions acceptable to the Secretary of the Interior’

    2. The Winters Doctrine established for ‘federal reserved water rights’ in Montana on the Milk River. This is the law governing the quantification of the water rights of “federal reserves”, including Indian reservations.

  6. 1920 Federal Power Act—sights on the development of Kerr Dam

  7. 1924—American Indian Citizenship Act. Indians became American Citizens

  8. 1934—Indian Reorganization Act. Established tribal governments who wanted to sign up for the IRA as a federally-charted corporation with the powers of self-determination and self-governance…The powers to govern their own affairs—not the affairs of others.

    1. Tribes are self-determined and do NOT have the power of the states or federal government or any nation to manage the affairs or to control or manage the water belonging to non-Indians. The Tribes cannot manage the affairs of other tribes either.

    2. This is something that CANNOT be changed by the CSKT Compact or the Daines bill.

  9. 1973 Public Law 93-638.—Indian Self Determination and Education Assistance Act (ISDEAA).  This allows the tribes to contract and run federal programs that were ‘designed for Indians because of their status as Indians’.

    1. Tribes can contract, for example, “Indian Health Service”, or “Tribal Education Programs’ because they were built specifically for the Tribes.

    2. In the Daines bill, the United States gave the Flathead Project—which the irrigation districts paid for—to the CSKT to run under the “638” law—in other words, for the first time in history, a project that was built for everyone—not just Indians—has been given to a tribe to manage, collect fees, etc. This is blatantly unlawful and will be challenged in Court.

    3. The CSKT Compact, State of Montana, and Daines bill effectively took the water rights of the irrigation project—and gave them to the CSKT to use for fisheries, AND to manage changes of use, development, and enforcement.

      1. This was an unlawful delegation of Montana’s constitutional authority to the United States on behalf of the CSKT, which reverses the 1871 act for a project that was built for all residents, not just the CSKT; and destroys PL 93-638 by granting tribes authorities that they do not have to manage non-Indian activities, programs, and functions.

      2. The ‘hold up’ of the ‘Secretary’s approval” is in part related to reconciling the 1908 Act that built the irrigation project for everyone and the PL 93-638 takeover of the project and water rights granted to the Tribes in the Daines bill.

As somewhat of a summary, the CSKT Compact and the Daines bill are  “done deals” in the sense of having passed the Montana legislature and Congress, but that’s all.  Now comes the hard part: the “nuts and bolts” phase, the development of mechanisms for implementation, and the working out of conflicts and issues.  There is A LOT of work to do to make this work for Montana, and it can be done. Also, almost all of the premises of both documents are now ripe for challenges in federal court, as will be any phase of implementation. In this speaker’s opinion, this was a pyrrhic victory—one that causes more damage than the problem it ‘solves’: to existing state and federal law and institutions, the economy of Lake, Flathead, and Sanders Counties; agriculture in eastern and western Montana; and federal Indian law across the western United States. Stay tuned.