Were you hoping the Confederated Salish-Kootenai Tribes (CSKT) water compact fiasco would simmer down? Well, take a look at the lawsuit the CSKT filed at the end of February – it’s an amazing document.
In a nutshell, the CSKT, represented by four tribal attorneys and experienced tribal-law advocate James Goetz of Bozeman, asked new U.S. District Court Judge Dana Christensen for an injunction prohibiting any state district or water court from settling, or adjudicating, any tribal water rights dispute.
The defendants are the Secretary of Interior, the 20th and 12th Montana state district courts, all the reservation irrigation districts, several farmers, and “an unknown number of defendants claiming FIIP irrigation water as a personal water right.” Hmmm, that about covers it, eh?
After years of threatening a tidal wave of state litigation over water rights, the tribes changed tack, now claiming “sovereign immunity to this piecemeal water right adjudication” and that matters of “waters collected and distributed by FIIP are subject to federal law” with adjudication being the exclusive domain of “the Constitution, laws and treaties of the United States” and the federal court system.
Next, the tribes declare the “FAA [Flathead Allotment Act] has been judicially determined to have been an unlawful breach of the Hellgate Treaty” but is nonetheless “the preemptive federal law on land title and irrigation water use on the [Flathead Indian Reservation].”
The CSKT argue the FAA (as amended, many times) required payments for the homesteads (to be applied to the benefit of the Indians) and construction of the irrigation system – i.e., that no rights “shall permanently attach until all payments therefore are made.”
Long story short, the CSKT allege the Flathead Irrigation Project was never paid for by non-Indian irrigators, nor did the irrigation districts pay up, even though the districts were formed in part to assume “the debt for construction which individual irrigators have never paid.”
No final payment in full, no water right (or land title, apparently), therefore: “NO NON-INDIAN OWNS A PRIVATE WATER RIGHT ON THE FIIP” – capitalized in original.
Furthermore, “[n]ot one iteration of the repayment contracts imposed any contractual duty on the United States to deliver any specific volume of irrigation water to any tract of FIR land served by FIIP.”
The CSKT also assert that “All waters on the FIR for consumptive use were reserved by the Tribes pursuant to the Winters Doctrine,” and because they own it all, “any attempt to apply state water rights law is preempted, subject only to the provisions of the federal McCarran Amendment,” law which the U.S. Supreme Court has ruled does in fact allow states to adjudicate tribal water rights as long as federal doctrine is followed.
So, that should give you an idea what CSKT really has in mind, at least for “non-Indian” water users on the Flathead Reservation. Is the Compact any different or better? Not on the reservation, it isn’t. Rather than a “Water Right Arising Under State Law,” irrigators will have a Farm Turnout Allowance with, as the current lawsuit reads, no “contractual duty” to supply any water – little different from “NO NON-INDIAN OWNS A PRIVATE WATER RIGHT ON THE FIIP.”
Through the Compact or litigation, it appears that most Western Montana non-Indian agricultural rights to water will wind up under the bus. All the Compact might “accomplish” is that it leaves existing municipal water rights alone – but that’s probably because subjecting city water users to senior “time immemorial” water calls would upset many otherwise-friendly voters. After all, as Ben Franklin famously said: “Justice will not be served until those who are unaffected are as outraged as those who are.”
The CSKT are not playing nice. They are fighting a water war with all the legal talent they can afford, and they intend to win – big and ugly.
Montana Attorney General Tim Fox is being called upon to defend the rights of Montana citizens, of course. But both the Montana Legislature and Western Montana county governments need to lawyer up, too. Only the appropriation and pooling of substantial money toward a common and skilled legal defense of non-Indian interests has any chance of keeping these interests from being lost – big and ugly, forever.
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