There are two sets of off-reservation claims filed by the CSKT and the United States:
- CSKT Compact claims to many off-reservation rivers and streams in western Montana; and
- Non-CSKT Compact additional claims filed after the Compact was passed by the legislature in eastern Montana
A map of Montana showing the off-reservation claims with and without the CSKT Compact is shown below. The Compact-related claims are in western Montana, and are outside the CSKT aboriginal territory as shown in Red. The non-Compact related claims are generally in eastern Montana.
Compact-Related Off-Reservation Claims
In direct contradiction to the Winters Doctrine, the state of Montana allowed the Tribes to file off-reservation water rights in western Montana based on flawed theory that Article 3 of the Treaty of Hellgate, which granted an access right to ceded aboriginal territory.
There is no legal or historical basis for these western Montana off-reservation water claims of the Tribes, and they are not within the scope of the Winters Doctrine or federal reserved water rights proceedings.
The CSKT also claimed “co-ownership” of state water resources in the Bitterroot River in Ravalli County as part of the Compact. Here again, there is no legal or historical basis or precedent for the Tribe, which means the United States, to “co own” state water resources.
Non-Compact- related 10,000 Claims
These off-reservation claims filed in eastern Montana were filed after the CSKT Compact was passed. Remember the threat that was used to get the compact in the first place: the Tribes would not file their eastern Montana claims if the Montana legislature passed the CSKT Compact in 2015. But they did anyway.
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The legislature passed the compact and the Tribes filed their 10,000 claims anyway. And the state of Montana’s Attorney General’s office failed to hold the Tribes to their promise, which are now wreaking havoc on Montana citizens. And these off-reservation eastern Montana claims are still being used as a threat.
There is even LESS evidence, law and history to back up any argument that the CSKT have off-reservation water rights in their “subsistence area” in Eastern Montana. The Flatheads only went to eastern Montana to hunt and fish, and to travel to other major historical Indian trading areas, and never set up any permanent dwellings in eastern Montana. There were of course other issues preventing permanent dwellings, including historic animosity between the Blackfeet, for example, and the Flathead. But the bottom line is there are no “tribal reserved aboriginal water rights” based on Article 3 of the Treaty of Hellgate, or any other law in eastern Montana and off the reservation in western Montana.
Nevertheless, the state allowed those claims to be filed, and the Tribes to threaten to stop everyone’s water use if those claims are argued in the Montana Water Court. To the detriment of all Montana citizens, the state is buying into that threat, with the Attorney General worrying that “we don’t have enough lawyers or money to go through that litigation”. No, that sounds like abandoning state citizens.
Where are the 10,000 Claims?
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The State of Montana does not include in its public data base the 10,000 claims that were filed by the United States and the CSKT. A person has to write specifically to the DNRC for this information.
Thus, our state has not informed its citizens in eastern Montana that the CSKT and United States have filed claims on the same streams that state citizens have historically used, and on streams and rivers that have already been partially adjudicated.
For your use and information in locating whether your water right or stream system that you are using has been filed on here is the 28-page data base for the 10,000 claims:
This is a 28-page data base that is organized by basin number, shown in the map above.
Because the state failed to push back on the legal veracity of these claims, and failed to hold the Tribes to their promise not to file these claims if the legislature passed the Compact, these claims still threaten Montana, holding us hostage to them.As a final note here, because the 10,000 claims were NOT part of the Compact, no modification of the CSKT Compact addresses this issue. You can’t simply say in the Compact that those “eastern Montana claims will be dismissed with prejudice” because that will have to be a court action unrelated to the Compact.
The People’s Compact Solution
Based on the lack of a legal, Treaty, and historical foundation for these off reservation rights, both in and outside of the Compact, The People’s Compact solution requires the United States and the Tribes to permanently withdraw all off-reservation claims from the Court.