Opponents of a major Indian water rights settlement in Montana are calling on U.S. Sen. Steve Daines to withdraw it from Congress. But attorneys say some of the claims made by the conservative group from the Flathead Valley are false.
State Sen. and Republican candidate for governor Albert Olszewski stood behind a podium during a press conference in the state Capitol building last week arguing to halt the latest step of the long-fought-over water compact. "Our constitution water rights are worth fighting for, even if it means going to court,” Olszewski said.
Olszewski is among a conservative faction of Montana’s Legislature that opposed, and remains committed to changing, the Confederated Salish and Kootenai Tribes’ Water Compact passed by the state in 2015.
Olszewski has previously backed an attempt to replace the state compact with a citizen-led initiative, which the tribes say they were not consulted on U.S. Sen. Daines introduced a bill in December that would settle thousands of water rights and damage claims on and off the Flathead Indian Reservation, within the historic homeland of the tribes.
Sen. Jon Tester has signed on and top Trump Administration officials have also signaled their support for the long-awaited deal. But Olszewski and others who are calling for a halt and rewriting of state and federal negotiations repeatedly said the tribes’ treaty rights don’t include water, a claim legal experts say is inaccurate.
"All judicial precedent goes to us. Their main argument that they have aboriginal water rights is based on the claim that the right to fish actually means the right to own the water," Olszewski said. "The Supreme Court made a decision in the last two years that said when you look at treaties the have to be read literally. And there is not a literal translation of the Hellgate Treaty that gives the Confederation of Salish and Kootenai Tribes the water of Western Montana.”
Monte Mills is an Associate Professor in the law school at the University of Montana. He’s also the director of the Margery Hunter Brown Indian Law Clinic. He says, “I think it is inaccurate to say that just because a treaty doesn’t mention water rights that the U.S. Supreme Court has not recognized tribal rights to water in those treaties."
State Sen. Dee Brown, a Republican from Hungry Horse, Representative Joe Read, a Republican from Ronan, and Lake County Commissioner Gale Decker are in favor of withdrawing or changing settlement. Decker is skeptical of the $1.9 billion dollars in damages owed to the tribes outlined in the bill introduced U.S. Sen. Daines.
If finalized, that deal also requires the tribes to give up the vast majority of their off-reservation water claims. Decker said “We are also very concerning about language in the settlement act. Of most concern is the definition of the word ‘reservation.’ The word ‘reservation’ includes rights of way on the reservation.”
A newspaper opinion letter written by State Sen. Albert Olszewski earlier this month also raises this concern. He writes that if the federal settlement moves forward, “the CSKT will have legal jurisdiction and control of all non-native Montana's who live and travel through the reservation.”
"This isn’t anything radicle or anything new. It is essentially repeating the time-honored definition of ‘reservation’ and 'indian country’ that Congress has approved since the 1940s," said law professor Monte Mills.
Mills says that doesn’t necessarily mean that the tribes have jurisdiction of non-indain fee land.
“There are number of non-indians owning property within the reservation and the United States Supreme Court has strictly limited and really looked disfavorably on tribal jurisdiction over non-indians on non-indidan fee land. Nothing about the Montana Water Rights Protection Act would change the existing state of the law.”
In response to Sen. Olszewski’s press conference, Julia Doyle, a spokesperson for U.S. Sen. Daines office, said in an emailed statement “The Senator and his staff have engaged in dozens of meetings to build bipartisan support to resolve the CSKT water dispute, including many meetings and calls with State Senator Al Olszewski himself prior to his run for higher office.”
That last line refers to Olszewski’s bid for the governor's office. He’s facing U.S. Congressman Greg Gianforte and state Attorney General Tim Fox in the Republican primary.
On the state level, Department of Natural Resources and Conservation Director John Tubbs says it’s unlikely the CSKT - Montana water compact will be reargued by the Legislature.
"We took two (legislative) sessions in Montana to get this compact through," Tubbs says. "We have quantified the water rights for the CSKT. They have negotiated a good settlement I believe if we ever reopened it, it’s a high probability that the tribe would require much more in settlement before they came back to the table. And, frankly, I fear for the statewide adjudication if we don’t settle.”
If the federal settlement becomes law it would then head to the tribes, along with the CSKT-state compact, for review. The Montana Water Court must also approve the deals.