Public land exchanges under MWRPA: Consider the facts

A recent letter to the editor published in a local paper contained the following advice for people preparing to vote in the election, “Get your facts and then vote from your heart.” Sadly, this has become the new normal as facts become more irrelevant when investigating any controversy and emotions drive decisions.

The debate over the giveaway of public lands in the state and this reservation included as a provision of the Montana Water Rights’ Protection Act, (MWRPA), needs to be examined in the light of facts and in the absence of emotion. Section 13 of the act directs the Secretary of the Interior (SOI), to negotiate with the State for the purpose of exchanging public land somewhere in Montana for state trust land located within the boundaries of the Flathead Reservation in the amount of 36,808 acres. The state lands identified for exchange are what Montanans refer to as school district lands.

The State of Minnesota has 11 reservations, and like Montana, state school trust land can be found within the boundaries of the reservations. Similar to what is being proposed on the Flathead Reservation, Minnesota is being pressured to return the public lands to the local tribes.

State Senator Mary Kunesh provided this quote recently in an article published in High Country News (Feb. 28, 2024), “We do need our non-Native communities to stand up and speak the truth as they see it when it comes to returning lands, and any kind of compensation, back to the tribes.”

Following her advice, it seems to be a good time to examine the proposed land exchanges between the State of Montana, Federal government, and CSKT mandated by the MWRPA in light of the facts and history behind the proposed exchanges.

In order to tell the whole story, we have to start at the beginning.

In 1889 Montana, the Dakotas, and Washington were admitted to the Union by the Enabling Act of 1889. This act granted sections 16 and 36 in each township in the new states “for the support of common schools.”

The question that might be asked is, “Why would sections 16 and 36 be set aside for schools within the boundaries of a reservation?” The answer to the question is that the reservations were never intended to be permanent.

In 1953, the U.S. House passed Concurrent Resolution 108, a resolution expressly intended to terminate reservations and end the status of Indians as wards of the government. The resolution called for reservation termination “at the earliest possible time.”

Numerous reservations were terminated under the act until 1970 when President Nixon halted the practice. The Flathead Reservation escaped termination, and the school district sections remained as state public lands.

On July 14, 1951, CSKT filed a complaint in the U.S. Court of Claims (Docket No. 50233), which included a takings claim related to the opening of the Reservation to settlement, and for other United States withdrawals of land for “various other purposes.” The school district sections fell into this category.

These land claims against the United States were fully litigated, decided, and settled by the Claims Court. The Court considered appraisals provided by the plaintiff and defendant.

The Tribal Council passed a resolution unanimously accepting the settlement in 1966. A payment of $22,361,549.07 was made to CSKT for the "takings.” The State sections of land set aside for the support of public schools under the Enabling Act, were included in the payment for lands, (Lee-Kenney Report Map, Volumes 1-4, RG 123, Records of U. S. Court of Claims, Case No. 50233).

That same year, the Indian Claims Commission issued findings of fact pertaining to the settlement that had been reached. Finding No. 54 noted, "The Judgment shall finally dispose of all claims or demands which petitioner has asserted or could have asserted in his case against the defendant and petitioner shall be barred from asserting all such claims in future action."

Despite the barring of all future claims of ownership by CSKT, the claims continue to be made.

“(the MWRPA) includes restoration of the National Bison Range; authorizes a process for restoration of state school trust lands on the reservation and in exchange the Tribes will convey to the state tribal co-ownership of state rights in the Upper Flathead Basin;” (CSKT Council minutes, January 1, 2021).

“Such a return (of state lands) has been the want of our ancestors and the want of our tribal leaders since they were taken.” (High Country News, February 28, 2024, Tony Incashola Jr., Director of Tribal Resources, CSKT).

No matter what feelings and emotions are attached to the return of State trust land to CSKT as provided for in the MWRPA, these facts remain: The lands were legally withdrawn from the Reservation by an Act of Congress; CSKT was compensated for the land withdrawn and agreed to never claim ownership again; and now Congress has passed an Act that will transfer title to State trust land to CSKT for their sole use and benefit.

Will the Montana State Land Board approve these exchanges despite the facts that disallow them from even being considered? Will fact or emotion prevail?

Gale Decker, a retired school teacher and former Lake County Superintendent of Schools, was recently elected to his third term as Lake County Commissioner.