Three irrigators explain why they don’t support the water compact
As we talk with friends and neighbors about the Confederated Salish and Kootenai- Montana Water Compact, the common theme is that no one understands it. The typical response is, “I really don’t know much about it. There are people I respect on both sides so that just confuses me more.” If you find yourself agreeing, you are in good company; this behemoth of a document wasn’t understood by most legislators, either. But much like the Bible, it isn’t the parts we don’t understand that are troubling, but the parts we do.
Article I of the Hellgate Treaty begins, “The said confederated tribe 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 …” Article II begins, “There is, however, reserved from the lands above ceded, for the use and occupation of the said confederated tribes …” This is a classic example of the federal government reserving land and the basis for Federal Reserved Water Rights. Straightforward, right? Well, don’t underestimate the ability of lawyers with an agenda to misinterpret a simple document.
The first recital of the CSKT Compact reads,” WHEREAS, pursuant to the Hellgate Treaty of 1855, the Confederated Salish and Kootenai Tribes reserved the Flathead Indian Reservation.” Here are just a few examples of how acceptance of that revisionist interpretation was used in the CSKT Compact: replacing the Winters Doctrine and Federal Reserved Water Rights with time immemorial “tribal reserved” water rights; tribal ownership and management of the Flathead Irrigation Project; invalidation of land patents within reservation boundaries; and the federalization of the water in western Montana, both on and off the reservation.
The governments who “negotiated” the compact had their chance to fairly resolve the federal reserved water rights of the CSKT. They failed to do so, instead only benefiting the governments themselves. You can negotiate away things no court could ever take from you and that is exactly what the CSKT Compact proposes to do.
Compact supporters like to tout the “uncertainty” of going to water court, but if the intent of the parties is to follow the law, it’s a straightforward process. The legally unsupported claims of CSKT face far more “uncertainty” in water court than we do. We will gladly take the water court over the CSKT Compact.
There needs to be a paradigm shift in this process, a new approach that follows the law, protects the rights of all people and treats everyone fairly.