Federalization of Western Montana’s Water is not ‘conservative’News Type: State Source: Helena Independent Record
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Hiding under the labels of “conservative,” “federalism,” and “Republican,” Broadwater County Attorney Cory Swanson attempts to justify his support for the CSKT Compact in a letter to the Havre Daily March 2, 2018 and carried in the Helena Independent Record a few days later. Mr. Swanson accuses conservatives and Republicans who are against the compact of being against federalism. What’s with all the terms, accusations, and labels? Do they hide or shed light on the CSKT Compact? What is Mr. Swanson’s real message?
The common definition of federalism is “a system of government in which entities such as states and provinces share power with a national government.” Within the framework of the Constitution, the United States operates through federalism wherein state governments have jurisdiction over state affairs, and the federal government national affairs. When a state passes a bill that is intended to be part of a federal settlement, such as the CSKT Compact, it is reviewed by the federal agencies and then crafted into a bill that can be ratified by Congress. The operative word here is review.
Federalism requires that the federal government must review whether the state bill meets the requirements of federal law and specifically, a settlement of federal reserved rights. It does not mean accepting a state law as is without review. Under federalism, the agencies and then Congress would review the CSKT Compact and bring it into compliance with federal law and policy before it is signed by the President.
Is Mr. Swanson suggesting that federalism’s “sharing power” means agreeing on everything without a review, including this state’s proposed settlement of the CSKT federal reserved water rights which itself violates federal law?
Who doesn’t want that review of the CSKT Compact, regardless of party affiliation or label? Every other compact in Montana has been changed in some way at the federal level and then ratified by Congress. The federal review is not just about money, it is also about the constitution, law, policy, and the budget.
It appears, then, that Mr. Swanson’s taunting of conservatives who oppose the compact as being opposed to federalism is misplaced. First, conservatives who oppose the CSKT Compact want its comprehensive federal review and are opposed to our current or hopeful Congressionals prematurely submitting the compact to Congress as a bill without its complete analysis and correction. This review requires real science, not political science, and not all of the issues can be corrected in a Congressional hearing.
The federal review of the CSKT Compact is entirely within the rubric of federalism and necessary for the protection of Montanan’s property rights.
Importantly, Mr. Swanson misses the fact that the CSKT compact itself does not embrace federalism. Instead it embraces federalization of the waters of western and eastern Montana — that is, federal control over Montana’s water. For many people, federal control of the state’s water resources is unnecessary, antithetical to property rights, and repulsive to the Montana and U.S. Constitutions.
As Mr. Swanson is aware, the state of Montana offered the off-reservation water rights to the United States/CSKT in western Montana as part of the negotiation. It did not do so for any other tribe in Montana.
Federalization of the state’s water resources in western and eastern Montana was unnecessary to resolving the federal reserved water rights of the CSKT, and unfortunately, Mr. Swanson is historically, factually, and legally incorrect in his assertion that “the Treaty of Hellgate secured these off-reservation water rights for the CSKT into eastern Montana.”
The Treaty of Hellgate covers only the aboriginal territory of the CSKT in western Montana and does not include any land, rights, or other Indian reservation lands east of the continental divide. Article III of the Treaty provides access to, not a water right for, off-reservation lands in western Montana. And the Winters Doctrine restricts federal reserved water rights to the reservation. Thus, there are no legally valid off reservation “ancient” (time immemorial) water rights (“fishing rights”) off the reservation in western or eastern Montana as asserted in Swanson’s letter. And the compact shouldn’t be allowed to “slip these into federal legislation” without proper scrutiny.
The state erred in offering the off-reservation water rights to the United States, and legislature was prevented from doing its duty on behalf of Montanans to prevent and correct this travesty by a collation of Republicans. The state then failed to hold the CSKT to their public promise to not file eastern Montana water rights if the compact was passed, and instead allowed the federalization of eastern Montana waters. As a result, the CSKT Compact is a radical departure from every previously-passed compact in Montana including the recent Blackfeet water settlement.
Importantly, a federal review of the CSKT Compact as Montana passed it would catch these errors and correct them. Fast-tracking the CSKT Compact by immediate introduction to Congress without this review would be a disservice to Montanans, and is antithetical to federalism, conservatism, and republican principles including the protection of private property.
There is no “Nancy Pelosi Zip Line” over the required federal review and revision of the CSKT Compact, even if you are a Republican and believe in federalism.
Catherine Vandemoer, Ph.D., is a water resource consultant and chair of the Montana Land and Water Alliance based in Polson. The MLWA focuses on the protection of property rights. She can be contacted through westernmtwaterrights.wordpress.com.