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Water rights history unique, complex

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PABLO — In 2009, John Carter, attorney for the Confederated Salish and Kootenai Tribes, wrote 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 original “sunset date” or deadline for the Reserved Water Rights Compact 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. 

Negotiating teams from the CSKT, the State of Montana and the Federal Government, which has a trust relationship with the CSKT, have been meeting since 2001, with monthly meetings beginning in 2010 or 2011.   

Before that, 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. 

These water rights are unique and complicated, according to Carter at June 27, 2012, negotiating session. For example, if the tribes control Indian water rights, the state manages state water rights and the federal government administers the irrigation system, a landowner with a stream running through his property could face many potential conflicts.  

The goal is to devise a system with all water and people being equal, Carter said. Ultimately, if a person were aggrieved, he would have the right to appeal to a water board.

“If the board is removed from the compact, the mechanism for the compact to move forward would cease,” Carter continued. “Barring a sea change, that’s the way it will go.”

According to a June 27, 2012 presentation by Duane Mecham, Attorney for the Bureau of Reclamation and U. S. government representative at the negotiating sessions,  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, signed by the president and then approved by the water court. 

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 provide water to Flathead Indian Irrigation Project users.

Next week, points of view from the Western Montana Water Users and those irrigators who support the water compact. 

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