Ex-senator: Water compact breaches state sovereignty

The Salish and Kootenai water compact should be a nonpartisan issue with the vote based on principle not politics.

It is unthinkable that the state of Montana with this water compact will lay the groundwork for the federal government with the assistance of Indian tribes to breach the sovereignty of Western states over the management of water and the protection of private property.  

Very disturbing is that the Salish and Kootenai water compact is gaining momentum through the threat (extortion) of 10,000 claims being filed by the tribes while the authority of the Salish and Kootenai and the federal government is being hidden in the 1,500 pages of the compact.  

Also, the general public is being disarmed by millions of dollars from the Confederated Salish and Kootenai Tribes to run a statewide media campaign and make special deals with many of the proponents of the compact. In my 16 years in the legislature, I have never seen a violation of the balance of power in our state government like the actions of our governor and attorney general regarding the compact. 

Phone calls and threats to county commissioners and legislators violate their oath of office and the separation of powers as mandated by the federal and state constitutions. Veto authority is a powerful weapon to use on legislators. It is normally used sparingly, but last session over 70 vetoes were issued including the veto of my bill which would have given legislative authority to extend negotiations on the compact. 

The governor and attorney general decided they were legislators and met with the tribes to make the project irrigators happy on the reservation since they had lost their state based water rights in the compact to the tribes. The irrigators were given a “water delivery entitlement,” which was insignificant because the tribes still had complete control of their water. Also, irrigators knew that their historic water delivery to irrigators has been cut by 70 percent and the water moved to instream flow. The Joint Board of Control for the irrigators voted 8 to 2 for a resolution opposing the compact after negotiation was completed.

Eleven counties and 330,000 citizens will have their properties lowered in value because the Salish and Kootenai water compact would grant in-stream water rights on the main rivers. Irrigators on tributaries think they are exempt but present water law allows a senior water-right holder on a main river that has been ordered to stop using water because of low flow to go up tributaries and shut down water users until his source rises above the minimum flow. Irrigation wells over 100 gallons per minute can also be shut down. 

Since the legal basis for the off-reservation water rights is the Hellgate Treaty language, there would be no legal basis for the 10,000 claims if the compact fails and vice versa. Also, the Montana Constitution states: “All existing rights to the use of any waters for any useful or beneficial purpose are hereby recognized and confirmed,” which would include water rights from territorial days when the records were kept locally. 

The thousands of claims did not work with the Nez Perce Tribe and they will not work with the Confederated Salish and Kootenai Tribes.  Also, House Bill 427 provides funds, $13 million, to protect these state-based water rights from competing tribal claims through the Office of Public Defender. Although giving up state sovereignty both off and on the reservation is a major flaw in the compact, there are many other violations; so I will list a few of the big ones:

The purpose of the reservation and the amount of water necessary to fulfill that purpose has not been provided as required to secured Federal Reserved Water Rights. 

Violates due process of citizens by blocking access to Montana Courts for resolution of water issues. 

Violates due process by including Kerr Dam and circumventing the Federal Energy Regulatory Commission.  

$55 million of Montana taxpayer money given without financial accountability or transparency. Related to this money, in the Compact there is a statement: “In the event that the payments are not needed such as in the event the Flathead Irrigation Project is decommissioned, all invested funds shall be dispersed for the removal and landscape rehabilitation.” 

It is unthinkable that the beautiful Flathead Irrigation Project would fail and Montana would pay for its removal.

No off-reservation water rights on stream flows have been previously awarded in a compact or in case law in Montana or any other state. The Salish and Koootenai compact would be the first and set a precedent for other tribes. 

The legal basis for this breach of state sovereignty is the Hellgate Treaty, which contains language by U.S. Commissioner Stevens. Specifically, the legal basis cited in the compact is Article III of the Hellgate Treaty, which does not even mention water or water rights: 

“The exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places, in common with the citizens of the Territory…” 

Note that the statement “right to take fish in common with the citizens of the Territory” in not a water right. A subsistence lifestyle was common among both Indians and the citizens of the territory 159 years ago, but now government programs and fast-food restaurants take the place of self-sufficiency. However, judges have stretched the treaty by ruling that there is an implied obligation in the treaty to provide for the survival of fish. 

This was done in 1970 by the state of Montana through the Department of Fish, wildlife and Parks with state water rights (called Murphy rights) which provide for minimum flows needed for fish for the whole state. Fish were protected and state sovereignty was left intact.

Also, Article I of the treaty makes clear that the Salish and Kootenai cannot be granted off-reservation water rights based on the right to hunt and fish on their aboriginal land because, in the treaty, the tribes, “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…” Note that the words cede, relinquish and convey and the words right, title, and interest were all used to make sure everyone understood that all aboriginal rights were given up.

Article II established the Flathead Reservation: “reserved from the lands above ceded, for the use and occupation of the said confederated tribes…”

Article VIII of the treaty actually forbids off-reservations tribal rights: “The confederated tribes of Indians acknowledge their dependence upon the Government of the United States, and promise to be friendly with all citizens thereof, and pledge themselves to commit no depredations upon the property of such citizens.” Control of water with time immemorial water rights greatly degrades property values because of the risk of not having adequate water and thus should be considered a depredation.

There are several treaties that have the Stevens language in them giving Indians access to hunting and fishing on aboriginal land. None of the tribes have been given off-reservation water rights in a compact or in court. There is no precedent. The Nez Perce Tribe’s negotiation with the state of Idaho has been held up as a negotiation that resulted in off-reservation water rights. However, unlike the Salish and Kootenai compact, the Nez Perce Tribe did not get water rights. Idaho was not willing to breach their sovereignty by giving control to the Nez Perce Tribe. 

Verdell Jackson, of the Lower Valley, represented Kalispell in the Legislature for many years, most recently in the Senate.