Felb. 21, 2015

The American West’s history of conflict between Indians and settlers apparently isn’t over, as tribes in Montana are demanding title to water rights and lands that long have been privately owned.

The landowners, some of whom have had the land in their families for generations, fear they could end up with nothing, and they are fighting back.

A lawsuit filed last year claims the tribes “own all the land” and “all of the water” within their region.

The Concerned Citizens of Western Montana organization described the suit as a pressure tactic to try to force the state and other interested parties into approving a water agreement that now is pending before the legislature.

But whether it will work remains to be seen, and the Mountain States Legal Foundation has taken up defense of the claims.

“Our clients’ land was open for entry for 105 years, and in private hands for much of that time,” said William Perry Pendley, chief of the legal team. “The water rights appurtenant to those lands were owned fully by our clients and their predecessors for decades. We will vigorously defend those rights.”

To understand the significance of the battle, one needs to understand Western water rights and their importance.

Nothing can happen without water rights and the liquid gold that flows both east and west from the Continental Divide. In Colorado, there is even a separate water court system to address water rights.

If a newcomer buys land, say a $10 million parcel overlooking Aspen or Vail, and then spends $20 million on a house, it will remain vacant until and unless the owner obtains a fully approved well right for water.

Or the owner would have to build a system in which he would have the water delivered.

A Christian organization only about 20 miles from the Continental Divide has spent some $700,000 on legal fees trying to obtain permission to use water it already owned for its training location.

What has been proposed now in Montana is a Water Compact for the Confederated Salish and Kootenai Tribes, a plan that has been negotiated with tribes and state and federal government interests over several years.

It would address several issues and resolve a number of cases launched by the tribes, but whether there will be agreement remains uncertain.

The two sides seem intractable.

State Sen. Debby Barrett, the state Senate’s president for the 64th legislative session, said there is no way she can support the proposed CSKT compact.

“The legislature’s role is to examine a proposed compact and decide whether or not to enact it into Montana law. The legislature’s responsibility and authority includes amending proposals if necessary, and approving all state costs associated with a compact such as this one. (The price tag of the state’s share on the CSKT compact is $55 million today.) But at an informational meeting held by proponents, the legislature was warned that it cannot amend the proposal. It’s a ‘take it or leave it’ deal,” she wrote in a published commentary.

“That insult to the constitutional role of the legislature is enough for me to want to leave it. Other proposed compacts have not been thrust on us, the legislature, with such arrogance and disrespect for legislators,” she said.

But in an opposing opinion, John Youngberg of the Montana Farm Bureau Federation said the deal is nothing more than an “equitable division and apportionment of water rights between the state and its people and the Indian tribes.”

His commentary explained: “It protects the water rights of farmers and ranchers. If there is not a negotiated agreement, the tribe is required by state law to file and litigate their claims for instream flow rights on all water as far east as the Milk River, the upper Musselshell, the Upper Missouri and Upper Yellowstone.

“This would require all current water rights holders on those streams and tributaries to defend their rights against an 1855 right (the year the treaty was signed).”

The treaty he referenced is the Treaty of Hellgate, ratified March 8, 1859, during the administration of President James Buchanan.

Under the treaty, the “confederated tribes of Indians 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,” within designated boundaries.

But reserved “for the use and occupation of the said confederated tribes” is a reservation, again within certain boundaries.

Rights of way were retained for roads, and Indians were given the “exclusive right of taking fish in all the streams running through or bordering said reservation.” The right was described as “in common” with other state residents.

The tribes were given $120,000 for the land, and the government promised to furnish a school, a teacher, a blacksmith shop, a gun shop, a carpenter’s shop, a wagon shop and to employ operators.

A sawmill and flour mill were added to the bargain.

The Indians in return promised not to make war on the U.S. and to allow land to be “surveyed into lots” assigned to “individuals.”

Barrett explained that there are a number of concerns for her and others.

The 2013 legislature refused to ratify the agreement “for many good reasons concerning its legality and equal treatment of this state’s citizens, both on and off the reservation,” she said.

“Now, it has been reintroduced, but not much changed or improved.

“These failures include more than a dozen permanent surrenders of the legislature’s authority over water in Montana, allowing the CSKT to choose whether to obey legislative enactments or not and giving them complete immunity from compliance with important aspects of Montana water and environmental law, including the Montana Environmental Policy Act. It also requires the state to give partial ownership of some of its water rights and its contracts for water to the CSKT and to manage those assets for the tribes’ benefit, rather than all citizens of the state.”

She continued, “It gives the CSKT the water right to 110,000 acres of irrigated land owned by individuals, whose irrigation districts have filed on that same water right.”

As a rancher and a senator “who values little ahead of private property rights, I think I know when to call a bluff, and when to stand my ground no matter what,” Barrett said.

“This is such a time.”

Former Montana lawmaker Elaine Willman called the plan “the Revolutionary War for citizens of Montana.”

The water, she said, is just the start.

“There will be more: Kerr Dam, the Columbia River Treaty, threats of the CSKT initializing ‘repatriation’ of their entire reservation, forcing non-tribal members off of their properties.”

She wrote in a commentary: “Does this sound over the top? It is not. A small tribe of some 5,000 members led by aggressive, hostile leadership emboldened by every available federal agency and resource is in full assault mode to remove state authority within the reservation boundary, and likely within 11 western counties. ”

Willman said “the governor, attorney general, and apparently the majority of Montana’s Legislature are ignoring two major U.S. Supreme Court rulings, along with the Montana State Constitution, and have intentionally turned their backs on Montana citizens.”

“In OHA v. Hawaii (2009) the U.S. Supreme Court ruled that land may not be removed from a state’s authority, jurisdiction or tax base without approval of the state legislature. In Tarrant v. Herrmann (2013) the Supreme Court unanimously ruled that states have ‘the absolute right and authority over all navigable waters and the soils beneath them for lands ceded to a state upon statehood.’”

The citizen’s group, Concerned Citizens of Western Montana, noted a state judge already has found there would be problems with the “takings” in the compact, because they would be “without compensation.”

The group also noted that the tribes were paid $4.4 million in 1966 for land the tribal members gave up in the 1800s and then another $21.6 million in 1971 for various lands held in private hands on the reservation.

The Hellgate Treaty also provided, the group said, “for the sale of surplus lands after allotment pursuant to the laws of the Congress.”

 

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