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CSKT Water Compact Shreds the Hellgate Treaty

The Confederated Salish Kootenai Tribes (CSKT) compact is unique compared with other compacts in Montana

 

 

Verdell Jackson               NorthWest Liberty News               March 1, 2020

 

I was a legislator when the Blackfeet water compact was passed by a 75% vote. Federal amount added was $471 million.  At least a 67% yes vote is required by the Montana constitution.  All 6 of the previous compacts met this requirement and no one had to give up any water.

The Blackfeet compact plan was developed over a 40 year period and the money was to be used for water related projects including new irrigation systems, improvements to existing systems and infrastructure projects that would give everyone more water.

The CSKT compact passed by only 3 votes (53% to 47%) not the required 67% votes.  Montana put $55 million in the compact and Federal government $2.3 billion.

The Montana Water Rights Protection Act (S. 3019) carried by Senator Daines adds to Senate bill 262 which passed the Montana legislature and changes some parts of it.  S. 3019 deals with unrelated issues such as roads, land swaps, state sovereignty, and even the Bison Range.

It got rid of 97% of the water rights, but we do not know the acre feet of the remaining 3% or where they are.  One existing water right in Senate bill 262 for 290,000 acre feet takes all the available water in the Flathead headwaters and another water right in S.3019 for 90,000 acre feet takes water out of Hungry Horse Dam.

I sponsored the bill in the Montana legislature that secured this water for use by the state of Montana for future development in western Montana. It ended up in the compact and establishes a water market for the tribal council: S. 3019, “The Tribe may use, lease, contract, exchange, or enter into other agreements for use of the water …”  If the city of Missoula needs more city water out of the Clark Fork River, CSKT will sell it to them or not. This is not the purpose of the federal reserved water rights or the reservation.

It was reported in the Flathead Beacon on 12/10/2019 that the “Tribal leaders said that in addition to ratifying the compact, the proposed legislation settles damages brought by the Federal government for mismanaging the Tribes’ water and water rights guaranteed under the 1855 Hellgate Treaty.”

The Hellgate treaty is the peace agreement between the CSKT and the Federal Government.  It does not guarantee any water.  It does not mention water or water rights.

Article I of the treaty makes it very clear that the CSKT can’t be granted off Reservation water rights based on the right to hunt and fish on their aboriginal land: “the 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 aboriginal rights were given up.  Water right claims by the CSKT off their reservation do not have standing.  (This means that the 10,000 claims CSKT filed are not valid.)

Article II established the Reservation: “reserved from the lands above ceded, for the use and occupation of the said confederated tribes…”  The reservation came from the land that was ceded and paid for.  It is an open reservation and not a race based sovereign nation inside of a state or country. It was assumed that the reservations would not be necessary after 20 years because the Indians would be assimilated into to general population.  Only a third of the CSKT tribal members have left the reservation.

Article III:  “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 citizens of the Territory, and of erecting temporary buildings for curing; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.” Note that the statement “right to take fish in common with the citizens of the Territory” is not a water right; otherwise Montana citizens could get a water right to protect their favorite place to fish. The Indian right is in common with the citizens of the Territory.  These subsistence rights which show up in some treaties are given only to tribes known to be peaceful.  A subsistence lifestyle 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.  Article III also gives Indians the right in common with citizens of the United States to travel upon all public highways and provides the right of public convenience roads being built.

Article IV and V pay CSKT for the cession:  “In consideration of the above cession, the United States agrees to pay to the Confederated tribes of Indians, in addition to the goods and provisions distributed to them at the time of signing this treaty…” Cash payments were required and basic infrastructure such as a school, black-smith shop, saw mill, and a flouring mill were to be built and maintained for a period of 20 years.

Article VI:  Once the land on the reservation was allotted, the remainder could be sold.  The CSKT reservation is the only open for settlement reservation in Montana.

Article VIII states: “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.” Off Reservation CSKT stream water rights, 10,000 claims are a violation of article VIII. Also, Irrigated land that is co-owned by the tribe is subject to a water call by the CSKT (ordered to stop using water) is greatly depreciated in value because of the uncertainty of having water.

The CSKT Reservation got their water when the 1.3 million acre reservation was opened to settlement in 1909 by Presidential Proclamation with the promise that the federal government would plan and fund the construction of the Flathead Irrigation Project (FIP), along with Kerr Dam to serve all interests, Indian and non-Indian alike.

Indians were given land and water rights for irrigation and non-Indians paid for their land and water rights. Approximately 128,000 acres of land on the Reservation are irrigated with 500,000 to 750,000 acre feet of water out of the Mission Mountains supplemented with 200,000 water pumped out of the Flathead River.

The Reservation is presently very productive producing cattle, feed crops and vegetables.  Also, there are over 300 streams that flow into the reservation.  Water tribal rights are in place to protect the streams that have fish.

Unfortunately, Senate bill 262 in the compact gives the water rights of the Indians and non-Indian irrigators to the Tribal Council who then would give each irrigator a water allowance of 1.4 acre feet per acre for a total of 179,000 acre feet with no assurance that the water would be available when needed or would be passed to heirs with the land. This is not enough water because the amount of water used in past years was 500,000 to 750,000 acre feet depending on the amount of rain.

The water comes out of the Mission Mountains supplemented with 200,000 acre feet water pumped out of the Flathead River. The reservation already has the water needed to make the reservation productive, but the tribe has filed 10,000 water right claims throughout Montana as a threat.

The 1500 page Senate bill 262 and 65 page S. 3019 were written by lawyers who did not follow the Hellgate Treaty or Federal and Montana constitutions.  Within these two bills are hidden tools which will destroy our Constitution Republic. Indians and non-Indians are citizens of the United States and are entitled to the freedom and opportunity provided by this county.

It doesn’t matter where you live.  I am sick and tired of the corruption and lies, especially the ads on TV.  There are problems on the CSKT reservation that need to be solved but throwing $55 million (state) and $1.9 billion (Federal) dollars and thousands of acre feet of water at the problems will only make things worse.

The Compact and the lies about adjudication have failed.   It is the responsibility of our government to protect all of us.  If we need to lawyer up and adjudicate, the 55 million should be enough to get a fair settlement for everyone.

 

 

 

 

 

 

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