This West Is OUR West

Guest commentary by Elaine Willman

By Elaine Willman, Guest Writer


I have been following Klamath water and dam issues since 2003 and have recently noticed commonalties simultaneously occurring in the southwestern Oregon and Northern California area, and on the Flathead Indian Reservation where I live in Western Montana.

Serious divisiveness among Klamath Irrigation District Board of Directors (KID) is mirrored by equally serious divisiveness occurring within the Flathead Joint Board of Control (FJBC) located upon the Flathead Indian Reservation. The issue in common, of course, is water and who controls it.

The FJBC, composed of three separate irrigation districts, is subjected to a recently passed water compact signed by the feds, the State of Montana and Confederated Salish-Kootenai Tribe (CKST). The compact incorporates control of all waters in 11 counties coming into, going through, and out of the Flathead Reservation, and has precipitated the transfer of a major hydropower dam to the tribal government.

The end result of the CSKT Water Compact is that tribal members and non-tribal ranchers and cattlemen in this agricultural area are now completely dependent upon a tribal government for any access to irrigation water, and access to electrical power. Land owners here have not a single government to turn to for support – not the federal, state, tribal or local governments. The State of Montana has completely signed off and abandoned state protections over 35,000 Montana citizens residing on this reservation.

Landowners look to the FJBC, the last standing public entity, for protections and challenge to the unconstitutional CSKT Water Compact.  Divisiveness on the FJBC Board has not only thwarted their protective actions on behalf of irrigations, the divisiveness is close to complete destruction of the FJBC. If this sounds familiar with what’s going on in the Klamath dams area, I think there’s no coincidence.

The politics of Montana are so beholden to federal and tribal government desires that Montana state waters in 11 counties are now placed in federal trust for a small tribal government. This compact will replicate across the State for six other tribes demanding to be treated the same. The feds will soon confiscate Montana state waters with the full acquiescence of the Governor and State Legislators.

Landowners here have been unable to find a single Montana attorney willing to protect their property/water rights, their constitutional and civil rights. Landowners were able to locate Lawrence Kogan, a New York City attorney to represent them in litigation just now initializing. Mr. Kogan also represents Siskiyou County and the Klamath Irrigation District.

Someone named Ed Blair recently characterized Mr. Kogan’s services in Montana as a “dismal track record,” when his work on behalf of his clients here was initially launched in September 2015, then voluntarily withdrawn to await anticipated U.S. Supreme Court decisions, for re-filing and proceeding with litigation against all parties to the CSKT Water Compact in upcoming July or August. That’s far from a “dismal track record.”

When I lived on the Yakama Reservation in Washington State for sixteen years, local municipalities, counties and property owners were also hard-pressed to find a Washington Attorney to pursue a case against the feds or tribes. It’s possible that Oregon landowners and irrigation districts may have a similar problem.

I have a 30 year career in government, and have researched federal Indian policy for 25 years. I have conducted workshops and keynote addresses across the country, authored two books, and work with numerous expert legal counsels in multiple states. Montana and Oregon landowners are most fortunate to have located and obtained Mr. Kogan’s services. Among strong legal champions, he stands at the top of the list.

Supporters of this egregious CSKT Water Compact called Mr. Kogan “that New York City attorney,” too. Supporters of the Compact did everything they could to trash him in Montana newspapers and everywhere possible. His clients did not fall for such baloney; his work is fact-based, law-cited and prolific. He’s a legal “street fighter” that knows his way around federal courts, Congress, water law and Indian law. But for Mr. Kogan’s courage and perseverance, and clients who so believe in him, 35,000 people in Montana will have forever lost their water rights, access to water, State and federal constitutional protections, and authority over non-tribal lands on the Flathead Reservation.

Elaine Willman

Author:  Going to Pieces…the dismantling of the United States of America (May 2005)

Author:  Slumbering Thunder…a primer for confronting the spread of federal Indian policy and tribalism overwhelming America (March 2016).