Unfounded Fears

I hoped when I posted recently about paranoia on the Republican right that I could safely forget about the topic for a while. After all, trying to respond to every accusation about the evil intentions of the Federal government, or the Bullock administration, or the Democratic Party, or the Responsible Republican caucus could easily become a full time, crazy-making job. But I couldn’t quite ignore it when I came across this post from Rep. Kerry While, on his Facebook page.*

What’s apparently set off alarm bells for White is that the Interim State-Tribal Relations Committee recently passed a resolution in support of the Salish Kootenai water compact, which White, as you can see, doesn’t like one little bit.  This worries me some, because I’m pretty sure the compact will be coming back to the 2015 Legislature, I’ll be supporting it, and I can just about see White’s hand flying to the red button when the bill hits the House floor.

Now don’t get me wrong. I’m not saying that supporting the compact is in White’s job description as a member of the Montana House. But it is in his job description that he consider bills carefully, listen to all sides, and ultimately base his yea or nay on sound, legitimate reasons and not on unfounded fears. But so far, unfounded fears appear to be all he’s got.

Case in point: White is afraid that because the Flathead compact recognizes tribal water rights off the reservation, all the other tribes in Montana “will surely reopen their compacts” and claim the “rest of our state water.” But there is no way that could happen. Every tribal water compact that has been negotiated contains language that requires all the parties to agree before the compact can be reopened. Every compact states that it is the final settlement, for “all time,” of all tribal water rights claims. And no Montana tribe, other than the Salish and Kootenai, has ever asserted a claim to off-reservation rights.**

White is afraid that the compact “gives over” state water to the Federal government (in trust for the Tribes), that the Federal government will “gain control” of constitutionally protected state water, and that property owners will be required to “relinquish all claims to their life blood.”

Now I’m not sure that White has actually read the compact, but if he has, he should know that what it does is recognize and quantify various tribal water rights and put a lot of side boards on how those rights can be exercised.  As every water right holder in Montana should know, what a water right allows its owner to do is use a given amount of water in a particular way, and it also tells the owner where they stand in line when, as sometimes unfortunately happens, there’s not enough water in a basin to satisfy every claim on it. Tribal water rights are the same thing. They don’t give ownership of water to anybody or in any way diminish the state’s constitutionally recognized ownership of the underlying resource. They don’t give “control” over water to anybody. They don’t give the Tribes (or the Federal government, if you insist) anything that thousands of other Montana water rights holders don’t have.  And recognizing that one party (tribe, rancher, household, business, or what have you) has a senior right to water from a particular source does not “take away” the junior rights of other parties to water from that source.

In one respect, the compact, far from taking away the water rights of property owners, will actually enhance them. It works like this: as a matter of long established law, the Tribes water rights are senior to everybody else’s. And being senior, the Tribes could, at a time when there wasn’t enough water to go around, tell all those juniors to stop using water. This is termed “making a call” on juniors, and here’s the thing: in the compact the Tribes have agreed either to waive their right to make a call, or have made their senior claims modest enough that the likelihood of most such shortages occurring in the first place is very, very small. Most junior water users across Montana don’t enjoy that kind of protection.

One other thing: you may be wondering about White’s obscure remark regarding Tutvedt and the $22,000 the Tribes contributed to his PAC. Needless to say, I am not a Republican insider, but anybody who’s paying attention knows that Bruce Tutvedt and Kerry White are on opposite sides of the Republican Great Divide. Last spring, when the two factions were running primary campaigns against each other, the Tribes made a $22,000 contribution to the PAC Tutvedt put together to support his side, presumably because his side supports the compact.*** There’s been a certain amount of tongue wagging  on the Republican right about all this, the suggestion being that there's something inappropriate about the Tribes making campaign donations to Republican legislators who support the compact. But for better or worse, that's the way the system works: donors support legislators whose positions they agree with. And in this case, at any rate, that's crystal clear. There's no dark money, no mysterious donors, no hidden agendas,

That's not to say that we shouldn't be worried about the oceans of money in politics or PACs, and their donors, throwing their weight around. But it strikes me as a little unseemly of White to raise the issue. After all, almost 60 percent of the money that he raised in his primary campaign this year came from – you guessed it – PACs. You can find his campaign finance report on the Commission of Political Practices website.

*This is a screenshot, but last time I checked, the post was still up on White’s page and available to all you Facebookers out there. Click here.

** The basis for the Salish and Kootenai claim to off-reservation water rights is specific language in the Stevens treaty that established the reservation. No other tribe in Montana negotiated a Stevens treaty and no other tribal treaty has comparable language. If you want to delve further into what the completed tribal compacts actually say (as opposed to what White apparently thinks they say) click here.

***Full disclosure: Bruce Tutvedt and I co-authored an opinion piece supporting the compact, which I posted here back in August.