Note: our heart­felt thanks to for­mer Sen­a­tor Verdell Jack­son, an out­spo­ken crit­ic of the CSKT water com­pact for this arti­cle that will be sent out to all leg­is­la­tors and news­pa­pers through­out the state.

by Verdell Jack­son, Kalispell

Ten thou­sand water claims ready to be filed by the CSKT has been an effec­tive threat for the pro­po­nents of the CSKT Com­pact which has passed the Sen­ate. This threat and a list of things that the Com­pact does not do seem to be enough to con­vince a major­i­ty of the Sen­ate to shred our con­sti­tu­tion and give up state sov­er­eign­ty. Oth­er com­pacts pro­vid­ed water for the pur­pos­es of the reser­va­tions, but this com­pact breach­es Montana’s sov­er­eign­ty. Giv­ing con­trol and man­age­ment of the water in west­ern Mon­tana and on the Reser­va­tion to the CSKT and fed­er­al gov­ern­ment and tak­ing the state based water rights away from the Flat­head Irri­ga­tion project irri­ga­tors shreds both the fed­er­al and state constitutions.

Eleven coun­ties, 330,000 cit­i­zens will have their prop­er­ties low­ered in val­ue because the CSKT Com­pact grants in stream water rights on the main rivers. Irri­ga­tors on trib­u­taries think they are exempt but present water law allows a senior water right hold­er on a main riv­er that has been ordered to stop using water because of low flow to go up trib­u­taries and shut down water users until his source ris­es above the min­i­mum flow. Irri­ga­tion wells over 100 gal­lons per minute can also be shut down. These min­i­mum flows are based on a robust riv­er stan­dard, not on sur­vival of fish. Every­one ends up being affect­ed because water becomes scarce. Irri­ga­tors, the peo­ple who grow our food and pro­vide the largest con­tri­bu­tion to our econ­o­my, may go out of busi­ness. How­ev­er, some of the irri­ga­tors off the Reser­va­tion may be able to lease water from the Tribe for $40 an acre foot because the Com­pact gives the Tribe 229,000 acre feet of water out of Flat­head Lake and the Flat­head Riv­er which they may use for such purpose.

Off reser­va­tion water rights are a huge breach of Montana’s sov­er­eign­ty because the time immemo­r­i­al water abstracts are made out to the fed­er­al gov­ern­ment in trust to the CSKT tribe. They now con­trol the water for their ben­e­fit rather than Mon­tana con­trol­ling it for everyone’s ben­e­fit as required by our Con­sti­tu­tion. The fed­er­al gov­ern­ment del­e­gat­ed con­trol of non-nav­i­ga­ble water to the states in the Desert Land Act of 1877and they have been try­ing unsuc­cess­ful­ly for sev­er­al years to get it back through via con­gress. The Com­pact gives con­trol of water in west­ern Mon­tana to the fed­er­al government.

No off reser­va­tion water rights on stream flows have been pre­vi­ous­ly award­ed in a com­pact or in case law in Mon­tana or any oth­er state. The CSKT Com­pact would be the first and set a prece­dent for oth­er tribes. The legal basis for this breach of state sov­er­eign­ty is the Hell Gate Treaty which con­tains lan­guage by US Com­mis­sion­er Stevens. The first Tribe to use the prece­dent could be the Black­foot Tribe through their 1855 Judith Riv­er Treaty which is also a Stevens Treaty with sim­i­lar lan­guage. The Black­foot nation con­sist­ing of the Pie­gan, Blood, Black­foot, and Gros Ven­tres tribes of Indi­ans were grant­ed the priv­i­lege of hunt­ing, fish­ing, gath­er­ing fruits and oth­er sub­sis­tence activ­i­ties in a large area, about 8 mil­lion acres, in east­ern Mon­tana. The CSKT are not includ­ed. The hunt­ing and fish­ing area starts at the Main Divide of Rocky Moun­tains and goes east to the Mus­cle Shell Riv­er. Hele­na is at the bot­tom of strip of land and Great Falls at the top. The Black­foot Com­pact has not been final­ized yet which will give them an oppor­tu­ni­ty to go after water in their tra­di­tion­al abo­rig­i­nal area. Actu­al­ly 4 Mon­tana trib­al com­pacts have not been ful­ly approved.

Specif­i­cal­ly, the legal basis for this breach of state sov­er­eign­ty cit­ed in the Com­pact via the Hell Gate Treaty is Arti­cle III which does not men­tion water or water rights: “The exclu­sive right of tak­ing fish in all the streams run­ning through or bor­der­ing said reser­va­tion is fur­ther secured to said Indi­ans; as also the right of tak­ing fish at all usu­al and accus­tomed places, in com­mon with the cit­i­zens of the Ter­ri­to­ry…” Note that the state­ment “right to take fish in com­mon with the cit­i­zens of the Ter­ri­to­ry” in not a water right. A sub­sis­tence life style was com­mon among both Indi­ans and the cit­i­zens of the ter­ri­to­ry 159 years ago, but now gov­ern­ment pro­grams and fast food restau­rants take the place of self-suf­fi­cien­cy. How­ev­er, Judges have stretched the Treaty by rul­ing that there is an implied oblig­a­tion in the treaty to pro­vide for the sur­vival of fish. This was done in 1970 by the state of Mon­tana through the Depart­ment of Fish, wildlife and Parks with state water rights (called Mur­phy rights) which pro­vide for min­i­mum flows need­ed for fish for the whole state. Fish were pro­tect­ed and state sov­er­eign­ty was left intact.

Also, Arti­cle I of the Treaty makes clear that the CSKT can­not be grant­ed off Reser­va­tion water rights based on the right to hunt and fish on their abo­rig­i­nal land: CSKT “here­by cede, relin­quish, and con­vey to the Unit­ed States all their right, title, and inter­est in and to the coun­try occu­pied or claimed by them…” Note that the words cede, relin­quish and con­vey and the words right, title, and inter­est were all used to make sure every­one under­stood that all abo­rig­i­nal rights were giv­en up.

Arti­cle II estab­lished the Reser­va­tion: “reserved from the lands above ced­ed, for the use and occu­pa­tion of the said con­fed­er­at­ed tribes…”

Arti­cle VIII of the Treaty actu­al­ly for­bids off reser­va­tions trib­al rights: “The con­fed­er­at­ed tribes of Indi­ans acknowl­edge their depen­dence upon the Gov­ern­ment of the Unit­ed States, and promise to be friend­ly with all cit­i­zens there­of, and pledge them­selves to com­mit no depre­da­tions upon the prop­er­ty of such cit­i­zens.” Con­trol of water with time immemo­r­i­al water rights great­ly degrades prop­er­ty val­ues because of the risk of not hav­ing ade­quate water.

There are sev­er­al treaties that have the Stevens lan­guage in them giv­ing Indi­ans access to hunt­ing and fish­ing on abo­rig­i­nal land. None of the tribes have been giv­en off reser­va­tion water rights in a Com­pact or in court. There is no prece­dent. The Nez Perce Tribe’s nego­ti­a­tion with the state of Ida­ho has been held up as a nego­ti­a­tion that result­ed in off reser­va­tion water rights. How­ev­er, unlike the CSKT Com­pact, the Nez Perce Tribe did not get water rights. Ida­ho was not will­ing to breach their sov­er­eign­ty by giv­ing con­trol to the Nez Perce Tribe. Idaho’s Depart­ment of Water Resources main­tained con­trol by putting 200 min­i­mum instream flow water rights in place for “springs and foun­tains” with a pri­or­i­ty date of 2007 while pro­tect­ing all present uses and some future uses.