by Dr. Ed Berry
Here, I rebut Senator Verdell Jackson’s recent article “Hell Gate Treaty Forbids Off-Reservation Water Rights Contained in CSKT Water Compact.”
Later, I will rebut Arizona hydrologist Dr. Kate Vandemoer’s and New Mexico attorney Richard Simms’ claims against the Compact.
Senator Jackson’s article claims the Confederated Salish Kootenai Tribes (CSKT) have no off-reservation water rights on rivers in the CSKT Compact based on this paragraph of 1855 Hell Gate Treaty, Article III:
“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 citizens of the Territory, and of erecting temporary buildings for curing; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.”
Senator Jackson’s article claims the “right to take fish is NOT a water right. Senator Jackson’s article also claims the statement in Article I of the Treaty that the CSKT
“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…”
means “the CSKT cannot be granted off-reservation water rights based on the right to hunt and fish on their aboriginal land.”
Here’s the problem with Senator Jackson’s conclusion.
Numerous courts have interpreted the language of the Hell Gate Treaty differently than Senator Verdell Jackson. Therefore, his interpretation has a slim to none chance of prevailing in court. It is not sufficient in law to simply review language of an 1855 treaty in isolation from relevant court decisions. Try that when you go into court and you set yourself up to lose.
Those who oppose the Compact may not realize the danger of their position. The Water Compact is a negotiated settlement of very complicated water law. Everyone should know a negotiated settlement is far better than a trial. The alternative to the Water Compact is decades of useless legal trials that we will lose at great expense.
The cost of rejecting the Compact would be not only money but time. Many projects that can bring significant benefit to Montana would be stalled until the water settlements are concluded. Unknowns like this drive investors to other states.
Here are some legal precedents that show Senator Jackson’s position cannot win in a Montana court. There are good Montana attorneys who can explain cases these in detail.
- In the 1800’s, General Isaac Stephens negotiated several Indian treaties, the CSKT among them, that reserved for the tribes the “exclusive right to take fish at all usual and accustomed places” including outside the reservation. These Indian rights date from time immemorial rather than from the date of their treaty, meaning they do not derive from the treaty.
- US Supreme Court recognized these off-reservation rights in Winans (1905) and concluded a treaty was not a grant of rights to the Indians but a grant of rights from the Indians to the USA, and the Indians retained all rights not granted to the US in the treaties. This is a significant ruling that affects the interpretation of the Hell Gate Treaty.
- The US Supreme Court ruled in 1979 that Indian tribes’ right to their “usual and accustomed” fishing grounds includes the right to harvest a proportionate share of harvestable fish that pass through their fishing grounds.
- In 1983, the Ninth Circuit Court held a Tribe can prevent other appropriators from depleting the stream waters below a protected level in any area where a non-consumptive right exists. (Adair, 1983)
- The Montana Supreme Court in Greely (1985) quoted from the 1983 Ninth Circuit Court of Appeals decision that Indian reserved hunting and fishing rights “consist of the right to prevent other appropriations from depleting the stream water below a protected level in any area where the non-consumptive right applies.”
- The Ninth Circuit Court of Appeals in 1985 upheld a federal court’s order that the Bureau of Reclamation release sufficient water from a Yakima reservoir to preserve salmon eggs threatened by low water flow in an Indian off-reservation fishing area.
- The Washington Supreme Court in 1995 affirmed a 1985 court decision that Indian off-reservation water rights include an instream flow necessary to maintain their fish habitat.
- The Ninth Circuit Court of Appeals recognized tribes’ on-reservation treaty rights include instream flows in all streams running through or bordering the reservation.
Although no court case has addressed the specific question of whether Indian off-reservation right to fish includes the right to instream flow necessary to maintain the fish population, neither has any case denied this water right.
The above referenced cases strongly suggest that opposition to Indian off-reservation water right would lose in the Montana Supreme Court and the Ninth Circuit Court of Appeals.
Of further relevance is the following fact:
No state or federal law prohibits a negotiated settlement from including Indian off-reservation water rights. Therefore, those who oppose the Water Compact on the basis of off-reservation water rights, have no grounds for complaint.
The Montana Legislature has the legal authority to approve the Compact and it should do so.