Reverse the Winters Doctrine

By Elaine Willman, Author

Going to Pieces…

Many Montanans are familiar with the Milk River, the existence of the Fort Belknap Indian reservation and the early settlers forging homes, farms, ranches and businesses in and around that reservation. This is the location and birth of a profoundly heralded and continuously implemented U.S. Supreme Court water ruling, Winters. V. United States. (207 U.S. 564), 1908.

The Winters Doctrine clearly and rightfully established federal reserve water rights for Indian reservations with a time appropriation related to the date of the Treaty, Congressional Act or Executive Order that created the reservation. Beginning with the Milk River and thereafter across the country, this famous and very fair water ruling has been the balancing principle between water needs of Indian tribal lands and non-tribal lands within a State.

At the front end of the Proposed CSKT Compact, implementation of the Winters Doctrine was all that was needed. The CSKT would have assessed, evaluated and identified its federal reserve water rights—quantifiable water needs for CSKT tribal lands and members. This same process followed by hundreds of tribes in numerous States has forged a fair and equitable distribution of water in Montana and many other states for all citizens, tribal and non tribal. But the CSKT process got flipped. Seriously and dangerously “flipped.”

Why would the State of Montana, birthplace of the Winters Doctrine in 1908, completely upend, ignore and reverse the balancing principles of the Winters Doctrine?  Why would the State allow a small tribal government to: 1) quantify everyone else’s water needs but their own; 2) make bogus aboriginal and time immemorial claims on off-reservation streams throughout 11 counties; and 3) turn over water management and delivery determinations to a tribal government? No one in 1908, beginning with the Supreme Court would have ever contemplated such complete abdication of State authority surrendered to one small tribal government. It is beyond the pale.  No one in 2015 should be tolerating such circumvention of the law either.

Secondly, Montana is home to yet another landmark Indian law Supreme Court case, one that protects non-tribal citizens from being governed by a tribal government without that individual’s consent. The case is Montana v. U.S. 450 U.S. 544 (1981). This case was long and hard fought by Montana legislators, officials and legal counsel to ensure that the rights of Montana residents were not intruded upon by tribal governments. But wait! The State Legislature would remove individual consent and provide State consent to a tribe to govern non-Indians. That battle won for the whole country, will now be lost to 350,000 Montanans.

These two Montana Supreme Court cases have figured prominently across the country for decades and should be on the lips of every Montana legal counsel who has contributed to the 1,400-page reversal of the Rule of Law, memorialized in the Proposed CSKT Compact. Along with excessive Constitutional and Environmental Policy Act violations, it would surely appear that dozens of long and well-paid state attorneys have become skilled in circumventing the law, rather than adhering to the Rule of Law. That State and citizens are vulnerable to politicized legal counsels.

If the Proposed CSKT Compact is passed, there are two tragic and permanent outcomes for Montanans: 1) A State that once protected its citizens and natural resources finds it no longer necessary to do so; 2) all of the water in one fifth of the land and one third of the people of Montana are being removed from the protections of the State. That is a dark, life and economy-threatening “Winter’s Doctrine” no one should have to endure.