Governments chip away at water rights issue
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The 1855 Treaty of Hell Gate, which established the Flathead Indian Reservation, also guaranteed the tribes’ rights to water on the reservation and in aboriginal territory.
According to a presentation made by Duane Mecham at the June 27 water rights negotiating session, the 1908 U.S. Supreme Court ruled that when the United States sets aside land for an Indian reservation, a quantity of water is reserved, which is necessary to fulfill that specific purpose. Mecham is an attorney for the U.S. Department of the Interior and negotiator for the United States government.
John Carter, attorney for the Confederated Salish and Kootenai Tribes, wrote in 2009 that the Montana Reserved Water Rights Compact Commission was established by the 1979 Legislature “to negotiate rather than litigate the federal reserved and aboriginal water rights of Indian tribes and the reserved rights of the federal government.”
The compact’s original sunset date was in 1984, but as Carter noted, “Water rights negotiations proved to be more complex and time-consuming than was originally believed.”
Since 1979, the MRWRCC has been extended six times. Final water rights settlements have been reached with six of the seven tribal governments in Montana, as well as for the National Park Service. The CSKT is the only tribal government still negotiating.
Carter explained that the average time per water settlement was five to six years, and federal compacts took significantly more time.
There are approximately 4,000 non-Indian water claims on the Flathead Reservation that the tribes are negotiating to resolve along with tribal claims.
Negotiating teams from the CSKT, the State of Montana and the Federal Government have been meeting almost monthly since 2001.
In 2008, the tribes made a proposal that would protect verified uses of water and provide additional water to meet tribal needs, including in-stream flows.
They also proposed a unitary administration and management ordinance, which was new for water rights settlements in Indian Country. One facet of unitary administration and management was the formation of a five-member governing board composed of two members appointed by the tribal council, two by the governor of Montana and the last member chosen by the other four. This board would administer all water rights and authorize future water uses on the reservation.
According to Mecham’s presentation, the benefits of negotiating a settlement are that verified existing water uses, including tribal member uses, would be protected; new permits, such as domestic allowances and stock water use, would be allowed; legal protection would be provided for pending domestic wells and permits that are currently in limbo; in-stream flow rights on and off the Reservation would be recognized; additional water resources for the Reservation would be provided, such the Hungry Horse Reservoir; funding for habitat and the Flathead Indian Irrigation Project improvements would be provided; settlement provides more benefits than litigation; and settlement provides more local control than litigation.
In addition, a compact would confirm and quantify all tribal water rights, would establish a foundation for administering water rights on the reservation and would be decreed by the Montana Water Court as a final settlement of the issue.
Any compact would have to be approved by the CSKT council, the state legislature and the U.S. Congress.
Another piece of the puzzle is a draft agreement among the tribes, the Flathead Joint Board of Control and the federal government on how to exercise tribal water rights for the Flathead Indian Irrigation Project, which supplies irrigation water throughout the reservation and is managed by the tribes and the FJBC. The draft also establishes a betterment program that will use tribal settlement dollars. The comment period on this agreement has been extended until July 16.
Currently, CSKT, Montana and U.S. governments are working to complete draft documents. Next will come public meetings and comments, a time to address comments, finalize the settlement and introduce legislation in the 2013 Montana legislative session.
