CSKT compact water board is unconstitutional
The Flathead water compact proposes a political board to manage all the water on the Confederated Salish and Kootenai Tribes’ reservation.
History reveals that under federal law, property interests in land in the West were developed under federal preemption, homestead and desert land laws, while rights to the use of water were developed under territorial or state laws. States managed the non-navigable waters.
Montana set up the Department of Natural Resources to meet the requirements of Article IX of the Montana Constitution: administer, control and regulate water rights and establish a system of centralized records and include all of the existing rights which were for a useful or beneficial purpose. These existing water rights include those filed by the irrigators on the reservation. If they are for a useful or beneficial purpose, they have been included in the data base, have standing, a priority date, amount of water and will be approved by the Montana Water Court through the adjudication process.
The board members are five people: two appointed by the tribal Council, two by the governor of Montana, and the fifth appointed by these four. The members must live on the reservation and are not elected. Water-rights expertise is not required. The non-tribal people who live on the Indian reservation will have no voice and the people who do not live on the reservation, but have a right to water will have no voice in what happens to their water rights (private property).
Legal provisions for administering water on the reservation will be different than the rest of the state. The tribes have their own constitution and water laws. Under the proposed compact, the board is the exclusive regulatory body on the Flathead Reservation for the issuance of new water rights, changes in existing water rights, and the administration and enforcement of all water rights and existing water uses. They will likely administer their thousands of in-stream flow water rights off the reservation in order to make calls (stop irrigating) during periods of low river flows. Also, they will be controlling all of Flathead Lake. The cost or fiscal responsibility of this board and staff is not in the compact and is very significant. Who pays the cost?
The Unitary Management Ordinance and its board violate the equal protection clauses of the U.S. and Montana constitutions as well as state and federal water laws. Everyone on the Flathead Reservation is both a U.S. and Montana citizen. Montana or U. S. citizens can not be treated differently because of where they live. No tribe has been given this type of authority to manage water, which is a state function by federal law, in a compact or by a judicial decision. —Verdell Jackson, Kalispell Republican, Senate District 5