How do you vote for something that you are supposedly receiving, without being informed of what you are giving up to receive it? The headline the Blackfeet Tribal Business Council (BTBC) wants the Blackfeet Nation’s tribal members to focus on is “$422-million” but what, exactly, is that $422-million compensating the Blackfeet people for? If the Blackfeet Water Rights Settlement Act passes with a “Yes” vote, there will be no Brinks truck backing up on Central Avenue loaded with $422-million anytime soon – or, in fact, ever.
“If I were voting on this matter, I would be reluctant to vote in favor of it until I received a detailed description of all rights being surrendered along with an estimation of the value of those rights. Once the tribe relinquishes its water rights, those rights are gone forever,” commented an attorney who provided an independent commentary on the Act the Blackfeet people are being asked to approve by a “Yes” vote on April 20.
As it reads, with a “Yes” vote, the Blackfeet people relinquish all claims for water rights in the State of Montana outside of the waterways identified within the Act that exist within the reservation boundary. Blackfeet tribal citizens will be entitled to allocations only from those waterways stated in the Act, and, even then, without sole jurisdiction, as the Act requires water allocation from the Milk River to be negotiated with the Fort Belknap Indian Community.
As the Blackfeet Water Rights Settlement Act clearly states, by voting “Yes” and accepting it, the Blackfeet give up “All claims in perpetuity” against the United States Government over water. If “Yes” votes carry the day and the Act passes, from that moment until the end of time, the Blackfeet people are at the mercy of the BTBC when it comes to water; the US Government’s obligation to the tribe over water rights will end with passage of the Act. As was heard many times at Standing Rock, “Water is Life.” Without water, we die. Without water, there is no Blackfeet Nation. By voting “Yes,” you entrust your seven future generations’ survival to the competency and integrity of the BTBC or a government formed under the proposed new “constitution.”
The US Government is the tribe’s trustee. The federal Indian trust responsibility is a legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources; this legally enforceable fiduciary obligation could be significantly weakened with a “Yes” vote for the Blackfeet Water Rights Settlement Act. Why? Because this is a “take it, or leave it” deal, and if the Blackfeet take it, the US Government leaves the BTBC on its own to manage the tribe’s most crucial resource – water. There is no going back if it falls apart.
The Blackfeet currently have water rights under the Winters Doctrine, which was established by the US Supreme Court ruling in Winters v. United States (1908). That US Supreme Court case defined water rights on Indian reservations. Blackfeet water rights under the Winters Doctrine stem from the 1855 Treaty and are not strictly limited to the reservation. In areas bordering the reservation, there are very few instances where prior water appropriations claims would or could take precedence over existing Blackfeet water rights, due to the early date of 1855. As Legislative Attorney Cynthia Brougher detailed for the Congressional Research Service (June 2011): “Tribes often have seniority because the laws, treaties, executive orders, and other legal agreements that created the Indian reservations (and thus the priority date for purposes of seniority) predate other settlement of the area.”
There is no expiration date on the water rights presently held by the Blackfeet under the Winters Doctrine, and the current water rights under Winters provide for all purposes, not only water for agriculture and irrigable acreage. The water rights that exist on the Blackfeet Nation pre-April 20, 2017 are a reserved right, established by the US Supreme Court. These water rights are your water rights, provided for by the blood, sweat and tears of your ancestors who made the 1855 Treaty. The water rights you already have, the so-called “Winters rights,” are your treaty right.
The proposed water compact and Blackfeet Water Rights Settlement Act is far less about the reaffirmation of tribal sovereignty and economic opportunity slickly marketed in a pretty brochure, and appears to be far more about the BTBC consolidating and expanding its authority over tribal members, the federal government having an opportunity to cast aside a huge part of its trust responsibility to the Blackfeet, and the State of Montana ultimately coveting every drop of water. What will be the status of the Blackfeet people’s water rights if the BTBC mismanages the provisions of the Act, if it is approved? The Blackfeet won’t be able to revert back, so which outside entity do you think would move to appropriate the water?
If the “Yes” votes prevail and the Act becomes law, the $422-million earmarked for water infrastructure projects on the Blackfeet Nation will go into a trust fund held under the authority of President Trump’s Secretary of the Interior, Ryan Zinke. Upon application by the BTBC for funds to undertake the stipulated water projects, Secretary Zinke or his successor will release the funds, contingent upon approval of the respective proposals and plans – no small task, and no slam dunk. In his March 15 promotion for Secretary Zinke and the Blackfeet Water Rights Act in the Glacier Reporter, Chairman Harry Barnes conceded those facts when he wrote of the BTBC’s meeting with Zinke, “We talked about the upcoming (April 20) vote by the Blackfeet members and asked his support in finding the funding if the members accept.”
To be clear, the tribe is not a direct beneficiary of any cash payments for relinquishing all claims to water rights external to the Act, and no tribal citizen is going to be the recipient of a per capita payment. Additionally, as Barnes admitted, the BTBC needs Zinke “in finding the funding” for the projects the theoretic $422-million settlement is supposed to pay for. If the BTBC is reliant upon Secretary Zinke “finding funding” there are no guarantees. Sure, if it were guaranteed, $422-million sounds a lot, until you place it in the context of infrastructure expenditure, and recall that ten years ago, the federal government authorized a minimum of $250-million for one bridge in Minnesota, the I-35W/Mississippi River Bridge replacement. Yes, that’s the equivalent of over half of the water rights settlement “implementation fund” spent to replace one bridge. That bridge, of course, was not contingent upon Zinke’s benevolence.
It is highly questionable that these proposed “infrastructure projects” will provide jobs for Blackfeet tribal members, given the specialized nature of the qualifications and experience required to, for example, construct the apparatus or operate existing mechanisms for hydroelectric power generation. This raises the prospect of non-tribal members benefiting from whatever quality employment is potentially generated, which will leave the community vulnerable to “man camps” of transient workers. Look no further than the Bakken and the Mandan, Hidatsa and Arikara Nation to see the social devastation caused by “man camps.”
What is not in question is that under the Act, a “Yes” vote invests more control in the BTBC. For any prospective water infrastructure project, the BTBC will essentially become the management and contracting party, with control over what finances are allocated from the theoretical trust fund overseen by the Secretary of Interior for the respective projects, and control over whatever profits may eventually be generated from, say, the proposed hydroelectric projects. If project applications are made during Ryan Zinke’s tenure as Interior Secretary, maybe the BTBC’s recent presentation of a pipe and blessing to Zinke will serve a purpose after all. Distribution of revenues will also apparently rest with the BTBC – as it seems will responsibility for the operation and maintenance of these projects, should they ever come to fruition.
Pages 136-138 of the Blackfeet Water Rights Settlement Act outline what the Blackfeet will receive in return for surrendering all water rights claims not written in its pages, but there is no itemization of everything the Blackfeet people will give up with a “Yes” vote. To appreciate what you could lose with a “Yes” vote, begin with the actual land base of the Siksikaisitapi, the Blackfoot Confederacy, and then advance through the years to the 1855 Treaty. The 1855 Treaty guarantees the existing water rights under the Winters Doctrine to the Blackfeet. Is this something you want to gamble with? The BTBC’s position is that a “Yes” vote secures water rights under their “deal” with the Feds and State as, “the amount or quantity of the Winters right has never been determined.” However, nowhere in the Blackfeet Water Rights Settlement Act is the Winters right even cited, which is a strange and glaring omission - particularly when on the ballot the verbiage makes it appear that a “Yes” vote protects that right, when, in fact, a “Yes” vote relinquishes that right and all others not referenced in the Act. Crucially though, as the BTBC admits, “The water is reserved as of the date of the treaty and cannot be lost even if it is not used,” a fact previously highlighted. So, as you already have that, why would you even consider this inequitable “deal?”
Reacquaint yourself with the territory of the Blackfoot Confederacy defined by that treaty, and continue into the accrued legal standing from there. With interest, what price the water rights of that country since 1855? North Dakota paid $22-million to “police” water protectors at Standing Rock for a few months. Under the Blackfeet Water Rights Settlement Act, comparatively speaking, the tribe is to receive just over a tenth of that for every year since 1855, which amounts to the compensation for giving up all water rights claims not listed in the document – not that the tribal membership would ever actually see any of the money.
So, what have you got to lose? Only everything, possibly ending with the US Government being able to walk away from its trust responsibility to the tribe. Without water, there is no Nation, and with the proposed Water Compact and Blackfeet Water Rights Settlement Act there is no guarantee of water stability for the Blackfeet Nation, for if the “Yes” votes prevail the future viability of the water – and the Blackfeet Nation - will all be handed to the BTBC. If they fail, it’s over. Remember, with a “Yes” vote the Blackfeet give up “All claims in perpetuity” against the United States Government over water, and voting “Yes” on the compact relinquishes all future claims for water rights in the State of Montana. There’s no going back. And a perilous future.
“Intuitively, all water rights of the Blackfeet Tribe of Montana could potentially have tremendous value far exceeding the value being offered in the exchange. Manhattan was sold for twenty-four dollars. The Blackfeet people would be wise to do the research necessary to make sure that they will not be giving this unfortunate episode in history the opportunity to repeat itself,” was the final thought of the attorney who shared his reading of the Act.
Think of the Water Spirits. Remember the Beaver Bundles. Pray on the meaning.