Threat of 10,000 water claims is just legal hoax

Residents and legislators in Eastern Montana have been threatened by the Water Compact Commission, compact proponents, the governor, the attorney general, and the Confederated Salish and Kootenai Tribes that if the Flathead water compact doesn’t pass in 2015, the tribes are going to file “10,000 claims across all of Montana.” 

This has been an effective scare tactic used to frighten and divide Montanans into accepting a flawed, unlawful, and unconstitutional compact. The purpose of this article is to put this hoax/threat/scare tactic to rest, and to remind people that if the water compact was so “good for Montana,” these scare tactics would not have to be used as a reason to vote for it.

What is the origin of off-reservation claims?

The compacting process underway for every tribe and federal land holding in Montana is designed to determine the federal reserved water rights belonging to, and attached to, federal reservations of land, including Indian reservations. By definition, federal reserved water rights are limited strictly to the land so reserved, and consist of the amount of water necessary to fulfill the purposes of the reservation. 

Every tribal compact in Montana, except the proposed Salish and Kootenai compact, identifies a purpose of the Indian reservation, and determines an amount of water required to fulfill the purpose of the reservation. No other tribe has claimed or threatened to seek off-reservation water rights.

The Confederated Salish and Kootenai Tribes claim that because Article III of the Treaty of Hellgate secures a right to take fish… in common with the citizens of the territory in their aboriginal territory — which is west of the Continental Divide and does not include any portion of Eastern Montana — they have a “water right for instream flow” off reservation. 

Since when does a right to take fish mean a water right? The language of Article III in the Treaty of Hellgate is the same language as nine other tribes in Washington, Oregon, and Idaho, all negotiated by Gov. Isaac Stevens, and the treaties of these tribes are therefore called “Stevens treaty tribes.”

What the Water Compact Commission is attempting to do in the Flathead compact is to create a new type of water right from language that guarantees access to fishing sites. The commission and the Confederated Salish and Kootenai Tribes are skating on thin legal and precedential ice. Indeed, a law review article written in 2006 by John Carter, the tribes’ own lawyer, states that this new type of water right is unrecognized by the federal reserved rights doctrine (Winters), the McCarran Amendment, and the Montana Constitution. So the tribes and the compact commission collaborated to set precedent by creating this new water right out of thin air.

Using the excuse that the tribes’ access to fish in common with the citizens of the state is a water right, the compact commission transfers water belonging to the state of Montana and its citizens over to the federal government to be held in trust for the Confederated Salish and Kootenai Tribes. This is unprecedented and an unlawful forfeiture of water belonging to the state of Montana.

The aboriginal Salish and Kootenai territory — those lands whose title, interest, rights and claims were ceded to the United States in exchange for $21 million in cash and a reservation — lies west of the Continental Divide. The Salish and Kootenai were granted access to their usual and accustomed places on those lands, in common with the citizens of the territory (state citizens) to take fish and engage in the privilege of hunting. The right to “take fish” is not a water right.

But now the compact commission starts waving around the map of the Salish and Kootenai “subsistence range,” which shows that those tribes, like all other tribes in Montana, roamed all over Montana to hunt and fish as part of a nomadic lifestyle. The subsistence area of the Salish and Kootenai was not included in the Treaty of Hellgate. But the compact commission and the tribes say, with a straight face, that the tribes will file 10,000 claims to water in their subsistence area — a claim that has no basis in fact. 

Moreover, the Confederated Salish and Kootenai Tribes share the same subsistence area with six other tribes in Montana and tribes in North and South Dakota and Wyoming. Have any of those tribes claimed water rights outside of their reservation in their subsistence area?

So what will be the effect on intertribal relations if the Confederated Salish and Kootenai Tribes all of a sudden claim they own water rights on other reservations? 

Are the 10,000 water claims even valid?

In a word, no. They are not included in or implied by the Treaty of Hellgate, nor are they supported by any other treaty made with any other tribe in Montana, nor are they supported by federal or state law. They are being used as a threat to scare Montanans into supporting the water compact.

As a practical matter, the Confederated Salish and Kootenai Tribes could file for a water right in Chicago, but it doesn’t mean they will be granted it. Because the tribes do not have to pay a filing fee when they file water rights, the intent is to “gum up the works” of the Montana General Stream Adjudication if they can’t get the compact… to make the court go through the process of basically saying “no” to all of the subsistence area “10,000 claims.” 

If the water compact is so good for Montana, why do compact proponents have to use scare tactics to get it passed? To date, no one call tell you anything about why the compact is good for Montana, except that “if you don’t pass it the tribes are going to file 10,000 claims!” Is the sky really falling?

Don’t start out the New Year in false fear. Have the courage to protect Montana’s water rights from the overreach of the federal government!

Catherine Vandemoer is chairman of the board of the Montana Land and Water Alliance.