The
American West’s history of conflict between Indians and settlers apparently
isn’t over, as tribes in Montana are demanding title to water rights and lands
that long have been privately owned.
The
landowners, some of whom have had the land in their families for generations,
fear they could end up with nothing, and they are fighting back. A lawsuit
filed last year claims the tribes “own all the land” and “all of the water”
within their region.
The Concerned Citizens of Western Montana organization
described the suit as a pressure tactic to try to force the state and other
interested parties into approving a water agreement that now is pending before
the legislature.
But whether it will work remains to be seen, and the
Mountain States Legal Foundation has taken up defense of the claims.
“Our clients’ land was open for entry for 105 years, and in
private hands for much of that time,” said William Perry Pendley, chief of the
legal team. “The water rights appurtenant to those lands were owned fully by
our clients and their predecessors for decades. We will vigorously defend those
rights.”
To understand the significance of the battle, one needs to
understand Western water rights and their importance.
Nothing can happen without water rights and the liquid gold
that flows both east and west from the Continental Divide. In Colorado, there
is even a separate water court system to address water rights.
If a newcomer buys land, say a $10 million parcel
overlooking Aspen or Vail, and then spends $20 million on a house, it will
remain vacant until and unless the owner obtains a fully approved well right
for water.
Or the owner would have to build a system in which he would
have the water delivered.
A Christian organization only about 20 miles from the
Continental Divide has spent some $700,000 on legal fees trying to obtain
permission to use water it already owned for its training location.
What has been proposed now in Montana is a Water Compact for
the Confederated Salish and Kootenai Tribes, a plan that has been negotiated
with tribes and state and federal government interests over several years.
It would address several issues and resolve a number of
cases launched by the tribes, but whether there will be agreement remains
uncertain. The two sides seem intractable.
State Sen. Debby Barrett, the state Senate’s president for
the 64th legislative session, said there is no way she can support the proposed
CSKT compact.
“The legislature’s role is to
examine a proposed compact and decide whether or not to enact it into Montana
law. The legislature’s responsibility and authority includes amending proposals
if necessary, and approving all state costs associated with a compact such as
this one. (The price tag of the state’s share on the CSKT compact is $55
million today.) But at an informational meeting held by proponents, the
legislature was warned that it cannot amend the proposal. It’s a ‘take it or
leave it’ deal,” she
wrote in a published commentary.
“That insult to the constitutional role of the legislature
is enough for me to want to leave it. Other proposed compacts have not been
thrust on us, the legislature, with such arrogance and disrespect for
legislators,” she said.
But in an opposing opinion, John
Youngberg of the Montana Farm Bureau
Federation said the deal is nothing more than an “equitable division and
apportionment of water rights between the state and its people and the Indian
tribes.”
His commentary explained: “It protects the water rights of
farmers and ranchers. If there is not a negotiated agreement, the tribe is
required by state law to file and litigate their claims for instream flow
rights on all water as far east as the Milk River, the upper Musselshell, the
Upper Missouri and Upper Yellowstone.
“This would require all current water rights holders on
those streams and tributaries to defend their rights against an 1855 right (the
year the treaty was signed).”
The treaty he referenced is the Treaty of Hellgate, ratified
March 8, 1859, during the administration of President James Buchanan.
Under the treaty, the “confederated tribes 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,” within designated
boundaries.
But reserved “for the use and occupation of the said
confederated tribes” is a reservation, again within certain boundaries.
Rights of way were retained for roads, and Indians were
given the “exclusive right of taking fish in all the streams running through or
bordering said reservation.” The right was described as “in common” with other
state residents.
The tribes were given $120,000 for the land, and the
government promised to furnish a school, a teacher, a blacksmith shop, a gun
shop, a carpenter’s shop, a wagon shop and to employ operators. A sawmill and
flour mill were added to the bargain.
The Indians in return promised not to make war on the U.S.
and to allow land to be “surveyed into lots” assigned to “individuals.” Barrett
explained that there are a number of concerns for her and others.
The 2013 legislature refused to ratify the agreement “for
many good reasons concerning its legality and equal treatment of this state’s
citizens, both on and off the reservation,” she said. “Now, it has been
reintroduced, but not much changed or improved.
“These failures include more than a dozen permanent
surrenders of the legislature’s authority over water in Montana, allowing the
CSKT to choose whether to obey legislative enactments or not and giving them
complete immunity from compliance with important aspects of Montana water and environmental
law, including the Montana Environmental Policy Act. It also requires the state
to give partial ownership of some of its water rights and its contracts for
water to the CSKT and to manage those assets for the tribes’ benefit, rather
than all citizens of the state.”
She continued, “It gives the CSKT the water right to 110,000
acres of irrigated land owned by individuals, whose irrigation districts have
filed on that same water right.”
As a rancher and a senator “who values little ahead of
private property rights, I think I know when to call a bluff, and when to stand
my ground no matter what,” Barrett said.“This is such a time.”
Former Montana lawmaker Elaine Willman called the plan “the
Revolutionary War for citizens of Montana.”The water, she said, is just the
start.
“There will be more: Kerr Dam, the Columbia River Treaty,
threats of the CSKT initializing ‘repatriation’ of their entire reservation,
forcing non-tribal members off of their properties.”
She wrote in a commentary: “Does this sound over the top? It
is not. A small tribe of some 5,000 members led by aggressive, hostile
leadership emboldened by every available federal agency and resource is in full
assault mode to remove state authority within the reservation boundary, and
likely within 11 western counties. ”
Willman said “the governor, attorney general, and apparently
the majority of Montana’s Legislature are ignoring two major U.S. Supreme Court
rulings, along with the Montana State Constitution, and have intentionally
turned their backs on Montana citizens.”
“In OHA v. Hawaii (2009) the U.S. Supreme Court ruled that
land may not be removed from a state’s authority, jurisdiction or tax base
without approval of the state legislature. In Tarrant v. Herrmann (2013) the
Supreme Court unanimously ruled that states have ‘the absolute right and
authority over all navigable waters and the soils beneath them for lands ceded
to a state upon statehood.’”
The citizen’s group, Concerned Citizens of Western Montana,
noted a state judge already has found there would be problems with the
“takings” in the compact, because they would be “without compensation.”
The group also noted that the tribes were paid $4.4 million
in 1966 for land the tribal members gave up in the 1800s and then another $21.6
million in 1971 for various lands held in private hands on the reservation.
The Hellgate Treaty also provided, the group said, “for the
sale of surplus lands after allotment pursuant to the laws of the Congress.”
Source: http://www.wnd.com/2015/02/montanans-fight-to-last-drop-over-precious-water-rights/
Comments
The US Constitution (as written)
states that the federal government is forbidden to own land, except the land it
needs for government operations. That would limit federal ownership to office
space and military bases. The treaty sounds like it offers “squatters rights”
to the tribes and claimed unconstitutional federal ownership of the land.
American Indians are US citizens, so they are not a “separate country”. The
tribes act like another layer of government.
Under the Constitution, their land
is owned by the state of Montana. Western states are aware of this and have
discussed reclaiming their national park land. If the federal agencies have
engineered this water fight, it’s probably part of UN Agenda 21 implementation.
In that case, the tribes would be better off dealing with the state.
Norb Leahy, Dunwoody GA Tea Party
Leader
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