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Return to basics of water rights

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The Sept. 12 Valley Journal contains a Michael Gale letter regarding negotiations on water rights in the Mission Valley. For one who wants to excoriate the Indians on this reservation, Gale should at least try to get his facts straight. If the Journal will permit me, I would like to help him. Let’s go to basics.

First, Gale says the tribes want to negotiate the claims under the “Winters Act, but choose to ignore the procedures defined by that act for more than 40 years now.” The Winters Doctrine is not an “Act.” It grows out of a decision of the U.S. Supreme Court in the 1908 case of Winters v. United States. This was a court composed of nine old white men. There was not an Indian on it. Indians didn’t even have the right to vote for presidents who appointed them or senators who confirmed them. This was your court, Mr. Gale. The first sentence of Justice McKenna’s short opinion (Google Winters v. United States) reads, “This suit was brought by the United States to restrain appellants and others from constructing or maintaining dams or reservoirs on the Milk river in the state of Montana, or in any manner preventing the water of the river or its tributaries from flowing to the Fort Belknap Indian Reservation.”

The basis of this decision was white man’s law, not Indian law. First, they used the U.S. Constitution, a white man’s law adopted by white men for white men. No Indians were involved in the drafting or adoption of this organic law. The Supremacy Clause of the Constitution (Article VI, section 2) states, “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme laws of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.” If this language is too hard to understand, it simply says that U.S. laws and treaties, if otherwise Constitutional, trump state law. It also interpreted the 1888 Act of Congress ratifying an agreement establishing the Ft. Belknap reservation, again, Mr. Gale, a law adopted by a Congress in which there were no Indians.

Briefly, the Winters Doctrine holds that, where a treaty or Act of Congress established an Indian reservation, the Indian tribes impliedly reserved enough water from sources arising on or traversing such reservation to make the reservation livable.

Later federal courts, in applying the doctrine, used the law of western states, including Montana, for the rights to, and apportionment of, water. This law is known as the Law of Prior Appropriation. It was adopted for the benefit and protection of the white user’s of water. No Indian tribes or people were involved in the adoption of this law. Remember, Mr. Gale, Indians were denied the right to vote until 1924. This law holds that the person who first diverts water from a water source to a beneficial purpose has the prior right to the use of that amount of water. All other diverters who come after the first one are junior to him and have a lesser right. In water-short years, users are bumped according to the date of their appropriation: first in time, first in right.

This reservation, upon which you, Mr. Gale, or your ancestor came without a tribal invitation, was established by the Hellgate Treaty of 1855. Under the Winters Doctrine, the Tribes impliedly reserved sufficient water from sources on or flowing across the reservation to make their reserved lands livable. The priority date for their right, under the white man’s Law of Prior Appropriation, is July 16, 1855.  In addition, the tribes retained the right to hunt and fish at usual and accustomed places off the reservation. They impliedly reserved sufficient water to make that right realistic. Mr. Gale, I don’t know when you and the other white water users on the reservation got their water right, but I can guarantee you that it was decades after the tribes’ 1855 date.  

Did you ever hear of the McCarran Amendment, Mr. Gale? Not content with stealing most Indian land through war and forced treaties — not content with stealing most of the rest through forced allotment acts and the opening of the so-called (not by the Indians) surplus lands to homesteading, the white water users decided they didn’t want their claims to federal and tribal water to be litigated in federal courts, but wanted them litigated in “their” courts — state courts controlled by them. Using their political power, they got Sen. McCarran to pass a law waiving the sovereign immunity of the US from claims in state courts to the use of water. Unfortunately for those greedy Indians, it also was interpreted to waive tribal sovereign immunity. As intended by the white sponsors, it endangered both federal and tribal water rights. Western State legislatures, absolutely controlled by white men, began to adopt laws and “procedures” to force the settlement or litigation of Indian water rights. These are the “40-year-old” procedures Mr. Gale is complaining about. These are not “Indian” procedures. These are laws and procedures forced upon the tribes by white water users like Mr. Gale. And now he complains because the tribes are trying to follow his procedures. 

The tribes are trying to abide by the white man’s law and negotiate for the settlement of their claims. The feds are negotiating for federal claims and, with their left hand, the Indian rights. Montana is negotiating for itself and hopefully for its citizens, like Mr. Gale. The Joint Board has stuck in its oar. The Tribes have no right or obligation, Mr. Gale, to keep you informed or to include you in the negotiations. Your claims are adverse to theirs. You should be writing letters complaining about the state and board negotiators failure to inform or include you.  

I understand that, to facilitate an agreement, the tribes, under the white man’s Law of Prior Appropriation, have offered to give the white irrigators (including you, Mr. Gale) the same priority date as the tribes, July 16, 1855. If true, I personally think that this is foolish and I think some tribal members feel the same. You should be stuck with the priority date you have under your law, Mr. Gale. As to your classic George Bush statement, “bring it on,” I hope you are forced into litigation. But, you better start hunting for a water rights lawyer. They are few in number and they charge a fortune. Do you and the other white water users have any loose change jingling in your pocket? Better be deep pockets. You are looking at 15-20 years of litigation. I would like to wish you good luck, Mr. Gale, but I do not.

Finally, Mr. Gale, in spite of the head-in-the-sand position of the far right on global climate change, it is here. The climate change drought is not coming. It is here. Look around. Times of water shortages are coming. People with later priority dates are going to be bumped in favor of senior users. The tribes and Indians of this valley are first in line and will be the last to be bumped. You will be bumped well before them. The tribes, perhaps foolishly, have offered you their priority date, July 16, 1855. Instead of attacking them, you and the other irrigators should be going to the tribes, hat in hand, to ask how you can help reach an agreement. You should be grabbing 1855 with both hands. I would withdraw the offer. 

(Editor’s note: Tribal member and attorney Franklin Ducheneaux served as Counsel on Indian Affairs to the Committee on Interior and Insular Affairs of the U.S. House of Representatives from 1973 to 1990, helping prepare and pass several Acts of Congress settling Indian water rights claims. Ducheneaux is a Ronan resident.)

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