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Controversial nonprofit enters Flathead water fight

A Denver-based nonprofit with a track record of fighting American Indian voting rights lawsuits and working against preservation of indigenous cultural sites has fired its first shot in the Flathead Indian Reservation’s long-running water war.

On July 3, Mountain States Legal Foundation asked a federal court judge to dismiss a lawsuit filed by the Confederated Salish and Kootenai Tribes against Flathead Reservation irrigators Judy and Robert Harms and Betty and Wayne Stickel.

“We want to make sure that our clients’ property rights and water rights are protected and assured,” says William Pendley of Mountain States. “We’re going to zealously litigate on their behalf.”

Founded in 1977, Mountain States works to further “individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system,” according to its website. Past Mountain States staffers include high-ranking conservatives, including U.S. Interior Secretaries James Watt and Gail Norton.

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  • Chad Harder
  • The Flathead Indian Irrigation Project serves nearly 2,500 farmers and ranchers, and sprawls across 128,000 acres.

Mountain States receives funding from dozens of private donors, ranging from Exxon Mobile to Donors Trust. The latter was dubbed last year by Mother Jones as the “dark-money ATM of the conservative movement.” Despite Donors Trust’s secrecy, it’s widely been linked to the billionaire Koch brothers.

Among Mountain States’ most notable cases is its work defending Blaine County, Montana, in a 1999 lawsuit filed by the U.S. government on behalf of American Indians on the Fort Belknap Indian Reservation. The U.S. Department of Justice argued Blaine County diluted the Native vote by using countywide, or “at-large,” elections. Despite the fact that nearly half of Blaine County’s population was Native American, the lawsuit noted that no tribal member had ever been elected to serve as a commissioner.

The Ninth Circuit Court of Appeals eventually agreed with the plaintiffs, finding Blaine County “made it impossible for an American Indian to succeed in an at-large-election.” The county was forced to redraw voting districts to better ensure proportional representation.

Mountain States’ track record, which includes opposing efforts to preserve indigenous cultural sites in Wyoming, Utah and Arizona, has prompted Native American activists to call the legal foundation anti-Indian.

“To me it’s just infuriating that they go to such lengths to undermine Native peoples and to try to bring about our demise,” says Suzan Shown Harjo, president of the Morning Star Institute, a Washington, D.C.-based indigenous advocacy group. “And they cloak it in conservative rhetoric. You can’t get more conservative than treaties.”

In Montana, Mountain States is now representing the Stickels and the Harmses against the CSKT’s suit. “We were approached and asked to defend their property right,” Pendley says.

Earlier this year, CSKT filed suit against the two couples and also the Flathead, Jocko Valley and Mission irrigation districts, two state courts, the federal government and, as the CSKT’s legal filing says, an “unknown number of John Doe defendants claiming … irrigation water as a personal water right.”

The CSKT’s lawsuit is part of a long-raging argument over who owns Flathead Indian Reservation water. In the 1855 Treaty of Hellgate, the CSKT ceded some 23 million acres to the U.S. government. In exchange, the federal government promised the reservation would be preserved for the CSKT’s “exclusive use and benefit.”

Despite the treaty promise, the federal government opened the reservation to non-Native homesteaders in 1910. Today, American Indians are outnumbered on the Flathead Indian Reservation by more than two to one. Non-Natives own roughly 90 percent of the land served by the Flathead Indian Irrigation Project.

Amid a growing population, tribal, federal and state officials have been working to ratify a pending water rights compact that aims to forever define how water is allocated in towns like Polson, St. Ignatius and Ronan. It also seeks to quantify how much water irrigators like the Stickels and the Harmses will receive in the future.

Efforts to ratify the water compact stalled during the 2013 Montana Legislature. During the 2015 session, negotiators will again present the agreement to lawmakers. If the compact fails to garner approval, the tribes have said they will take all of their water rights claims to court, a process that stands to be expensive and contentious.

In its lawsuit, CSKT seeks a federal injunction ordering state courts not to intervene in the Flathead irrigation water rights debate. At least three such cases are now pending in state courts, including those filed by the Harmses and the Stickels. CSKT argues in its legal filing that because the irrigation system is a federal project and its treaty is with the federal government, the controversies should be decided in federal courts.

CSKT notes further that the Flathead Allotment Act and subsequent congressional mandates prohibit landowners with more than 160 acres from obtaining a water right. Those actions also spell out a specific mechanism by which irrigators may attain a water right with the federal government. To date, the tribes argue, “No person has met those Congressionally-imposed steps and accordingly, no one other than the United States has a ‘water right’ to FIIP irrigation water.”

Mountain States, for its part, believes the Flathead Allotment Act and a subsequent $6 million payment to the tribes effectively put the land into public domain.

“There were lines drawn. There were lands opened up,” Pendley says. “The lands were homesteaded. Acts of Congress were signed into law. Compensation was provided.”

This story was updated July 31 to clarify ownership of the land served by the Flathead Indian Irrigation Project.

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