Sen. Daines recently introduced Senate Bill 3019, The Montana Water Rights Protection Act, to the U.S. Senate. In his attempt to fix the CSKT Water Compact, which is the most divisive legislation in modern Montana history, Sen. Daines made the issue worse. The legislative intent of his bill is to obtain congressional approval of the CSKT Water Compact and to provide federal appropriations to implement this compact. Unfortunately, it goes way beyond that. His Montana Water Rights Protection Act creates much more controversy in addition to the original taking of water rights from 350,000 western Montanans. Like the CSKT Water Compact, there is so much wrong with this legislation.
Many have spoken out about the settlement price tag that will cost the American taxpayer over 1.9 billion dollars. Others have screamed at the inappropriate transfer of the National Bison Range from the collective ownership of the American public to a third party without remuneration. As a state senator who swore an oath to defend and protect Montana’s sovereignty, I am completely opposed to Sen. Daines’ legislation because of its devastating impact upon the sovereignty of the state of Montana and its western counties.
Senate Bill 3019 expands CSKT sovereignty by rewriting history through federal law. This legislation rewrites critical federal laws from the early 20th century. These laws opened the CSKT reservation to non-native homesteading, established state owned lands and provided reimbursement to the CSKT for the lands sold. Daines’ legislation redefines how we use the term "reservation." It expands the definition of “reservation” from its description of physical land properties, by giving the CSKT government, civil and criminal jurisdictional authority over all right of ways within the boundaries of the reservation.
Daines’ legislation ignores well-established treaty rights and judicial decisions that protect the right of ways owned by non-native individuals, corporations and local governments. These non-native right of ways, through the reservations, were established in order to ensure that tribal sovereignty did not infringe upon the ability of non-native Americans to travel through Indian reservations by road, rail or waterways.
The end result is an expansion of CSKT sovereignty beyond the right of self-determination. If Senate Bill 3019 becomes federal law, the CSKT will have legal jurisdiction and control of all non-native Montanans who live and travel through the reservation. In addition, this legislation creates a legal structure that grants the CSKT potential jurisdiction and control of off-reservation public infrastructure “that intersects, or located within, the supply and distribution networks of the Flathead Irrigation Project.” It is important to remember, the water supplying the Flathead Irrigation Project comes from a network consisting of the streams and rivers spread across northwest Montana!
Daines’ legislation weakens the sovereignty of the state of Montana and its counties. It takes the jurisdiction and control of public and private right of way from the local county and state governments and grants these powers to the CSKT tribal government. This is an unconstitutional taking of governmental powers that lawfully belong to Lake and Sanders Counties, and the state of Montana. Currently, Lake County is in federal court defending its lawful power to control the right-of-ways of county public roads within the CSKT reservation. The CSKT claims that they alone have jurisdiction over these public road right of ways. The passage of Senate Bill 3019 would destroy Lake County’s legal standing on this issue.
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Sen. Daines’ legislation gives the CSKT 36,808 acres of land owned by the state of Montana and/or private individuals. Sen. Daines proposes one of the largest exchanges of state lands in Montana’s history without the input or consent of Montana’s Board of Land Commissioners or the state Legislature. Montana owns and manages 36,808 acres of land within the boundaries of the CSKT reservation for the general public benefit of the people of Montana. Daines’ legislation offers to exchange federal public lands located within Montana for these state owned lands. The exchanged land within the CSKT reservation would be given to the CSKT.
It is not clear whether the state land leases used by the farmers, ranchers and irrigators within the CSKT reservation will continue to be recognized and renewed. The loss of these state land leases could be devastating to those ag producers and their families. The state of Montana and her elected officials must give these irrigating and ranching families a voice during any negotiations with the federal government that involves their state land leasing rights.
If the state of Montana does not exchange its entire 36,808 acres of state land as proposed by Senate Bill 3019, the legislation mandates the federal government to acquire private land within the CSKT reservation to fulfill its obligation. The private landowner would be paid through an exchange of federal public land located somewhere else in the state of Montana. The net result to the people of Montana would be a loss of federal public lands and a loss of public land access within the state of Montana.
As your next governor, I will continue to stand with the state legislators of western Montana and the county commissioners from Lake and Sanders counties, to oppose Daines’ legislation. I will continue to protect Montana's sovereignty by working with the state Legislature to withdraw from the CSKT Water Compact in the next legislative session. In addition, I will ask the next state Legislature to create a Montana Water Rights Legal Defense Fund. This fund will be paid for by repurposing 55 million dollars of Montana taxpayer money previously authorized by Montana Senate Bill 262 (2015) to be given to the CSKT. This legal defense fund will be used to defend all Montanans water rights from any legal challenge made by any sovereign entity. Montana's constitutional water rights are worth fighting for!
Al "Doc" Olszewski, MD, is a Republican state senator from Kalispell. He is a candidate for governor in 2020.