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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.