Stealing Montana’s Water*

Montana Water Rights Protection Act is Illegal

As we have talked about in our Monday night meetings there is a serious threat coming to our community and state, it is in the form of legislation falsely called “The Montana Water Rights Protection Act” S3019. This water is being carried by Senator Steve Daines and wholly supported by Gov. Bullock.

This legislation abandons the protections Montanans enjoy under both the US and Montana Constitutions. Below are ten flaws of S.3019 that make it illegal on its face.

  1. The US Constitution is ignored and irrelevant. Article IV provides full faith and credit to States, full privileges and immunities of citizens, and no new states created within a state. S.3019 recognizes the CSKT as a sovereign nation instead of the legally established trustee of the US government. Governor Bullock signed away the First amendment of Montana citizens and executed an intentional violation of the Fifth Amendment (takings without compensation) when he illegally rammed the core bill (Montana S.262) through the Montana Legislature in 2015. Bullock ignored the power of the State of Montana under the Tenth Amendment, among other US Constitutional violations.

  2. The Montana State Constitution is Flexible. The CSKT water compact tramples upon Article II and Article IX of the Montana State Constitution by removing the popular sovereignty and inalienable rights of Montana citizens, taking water rights attached to property deeds and transferring off-reservation Montana waters to a federal “trust” for an Indian tribe. Article IX requires “a clean and healthful environment in Montana for (all) future generations.”Water is livelihood, or lack of livelihood. Transferring water from Montana citizens into a Federal trust to benefit a single tribe is abhorrent.

  3. The CSKT Constitution is all of sudden insignificant. Article VI of the CSKT Constitution declares that the Tribal Council’s powers and duties are subject to any limitations imposed by the US Constitution.

  4. US Supreme Court rulings on treaty law and water is being ignored. One hundred and fifty five years of treaty law and settled Supreme Court law that has established ample ”Federal reserved water rights” has been adjudicated fair in providing ample water for all the tribes people and enterprises. Just one of many Supreme Court rulings being ignored is the 2013 decision in Tarrent v. Herrmann unanimously asserted that “States have the absolute authority over all navigable waters within lands ceded to a state upon statehood.”

   5. Tribal Sovereignty is Superior to and more Precious than State Sovereignty.  Two major tribal privileges have caused elected officials of Montana to elevate tribal sovereignty over state sovereignty: 1) tribal governments directly finance incumbents and candidates. No other American governments may do so. Reservations place polling precincts within their boundaries where the Secretary of State has no access or jurisdiction and cannot ensure fair election practices. Many Montana elected officials have resisted changing these practices and say yes to the desires of the tribes even to the detriment of Montana and its citizens.

   6. The Federal Government, State and Tribe Have to Steal Water Rights Attached to Private Property Deeds. The entire ability to implement the proposed CSKT Compact is contingent upon surreptitious and nefarious removal of private water rights, and illegally transferring such rights to the Federal Government on behalf of the tribe. This is theft of water right without compensation and instrumental to the success of S.3019.

  7. A Montana Senator’s Oath of Office Must Prioritize the Tribes. The Federal Government has a “trust relationship with Indian tribes. States do not have this relationship unless they intentionally self-impose a State “trust” relationship with the Indian tribes. Montana did exactly that a couple decades ago. Montana elected officials either cooperate with tribes or have difficulty getting elected or remaining in office.

  8. A Territorial War Power Act against the State of Montana is the Right Way to Implement a Tribal Water Compact. In Senate Bill (S. 262) passed by the Montana Legislature it states “The Secretary of the Interior…has authority to execute this compact…pursuant to 43U.S.C. 1457…” This Statute is a Territorial War Power that may be applied in federal territories, but never against a State. Montana elected officials either naively or intentionally agreed to this travesty. There has been no discussion or action by state officials to protect state sovereign authority specific to this Compact.

9. All of a sudden the Montana State Legislature is Subservient to a Senator’s Decision. Montana Legislature’s bill, S.262 was wrapped into and amplified in Senator Tester’s Compact Bill, S.3013, which died in committee and later expanded upon and reintroduced by Daines in S.3019. This version of the bill further expands tribal authority over Montana waters and adds multi-millions ($1.9billion) to be exact, to the Compact way beyond what the Montana Legislature approved. Senators Tester and Daines overruled and grossly exceeded the decisions of the Montana Legislature, with no complaint from Montana elected officials. 

10. This Compact determines that Montana’s Waters should be Owned and Managed by the Federal Government via Proxy. The Proposed Water Compact transfers the state’s authority over its waters in eleven Western Counties to the Federal Government, to be held in “trust “for a single Indian tribe. Should this Compact be ratified by Congress, all other Montana tribes will demand the same water benefits. The end result will transfer all Montana waters to the Federal Government to be managed on behalf of Indian tribes.

This is a horror story for Montana, but this compact sets a terrible precedent for the rest of the nation if it becomes law. The Federal Government is using tribes as willing pawns to federalize the waters of the western states.

Unless State elected officials live up to their sworn obligations to protect the State of Montana, its citizens and resources, the Federal Government and tribes have smooth sailing for dismantling the balance of power between the Federal Government and the states. Water is life on the land. Tribal financing of elected officials is having undue influence in our state allowing egregious legislation like this to aid an overreaching Federal Government.

*Information sourced from Elaine D. Willman, MPA