Who will control the water on this reservation?
And how will it be controlled?
Much simpler to understand is the 1908 United States Supreme Court ruling - now known as the Winters Doctrine - that launched all parties down this path.
In the late 1800s, the completion of the Great Northern Railroad brought homesteaders to the Montana Hi-Line. The farmers and ranchers who landed in north-central Montana used the Milk River to irrigate their crops.
They built ditches, dams and reservoirs. They filed the necessary claims on the water with the state of Montana.
And they slowed the flow of the Milk River to a trickle of its former self by the time it reached the Fort Belknap Indian Reservation.
The Fort Belknap Reservation was created by the Fort Laramie treaties of 1851 and 1855. The treaties make no mention of water, or rights to water.
But the Supreme Court ruled, in the lawsuit Winters v. United States, that Congress never would have established the Indian reservation without intending to provide it with enough water so its residents could survive. The treaties' signing dates trumped the homesteaders' initial use of water from the Milk River by 40 or more years.
When it comes to water rights, Montana, like most Western states, is a prior-appropriation state - something of a first-come, first-served approach to water rights otherwise expressed as “first in time, first in right.”
Most Eastern states operate under a much different system, called riparian water rights, which has its roots in English common law and award reasonable use of water to landowners whose property is adjacent to bodies of water. The scarcity of water throughout much of the West led to the development of the prior-appropriation concept, which has nothing to do with where your land is located, only when you started using water from a particular source.
Unlike the riparian system, prior appropriation has a “use-it-or-lose-it” clause. If you haven't used the water you have a right to over a certain period of time, you lose your place in line.
The Winters v. United States decision was the first of a number of court cases that led to the development of a third system of water rights - federally reserved water rights. Subsequent court decisions, based on Winters, expanded on the idea that Congress inherently intended to reserve rights to enough water to fulfill the purpose of any federal land it created.
Military bases, national parks, wildlife refuges, national forests, wilderness areas - all joined Indian reservations as places where the courts have held that Congress intended to reserve enough water for them to fulfill their purpose. The date of the documents creating them, be they statute, treaty or executive order, is the date they are placed in line for rights to water.
Importantly, courts have ruled, non-use of water on these lands over the years does not usurp the right to it.
Fast-forward to the 1970s.
The Montana Water Use Act of 1973 began a process to finalize all water rights claimed prior to July 1 of that year, and establish a permit system for acquiring new water rights afterward.
In 1979, the Legislature authorized formation of the Montana Reserved Water Rights Compact Commission to sort out water rights on the state's seven Indian reservations, as well as all other federal lands.
The commission includes nine members, each serving a four-year term. Four are appointed by the governor, two by the Speaker of the House, two by the president of the Senate and one by the attorney general's office.
An eight-member legal and technical staff, attached to the Department of Natural Resources for administrative purposes, supports the commission.
“Our task is to go work out an out-of-court settlement,” says Chris Tweeten, chairman of the commission. “It's all part of the effort to catalog water rights in Montana.”
The commission has accomplished dozens of compacts, for everything from a Department of Agriculture sheep experiment station, to Glacier National Park, to six of Montana's seven Indian reservations.
The Flathead Reservation, with a vastly different population than the other reservations - non-tribal members are in the majority - plus a complex history of land ownership, not to mention an irrigation project that provides water to 127,000 acres of farm and ranch land on the reservation, mean one thing:
This may be the most complicated compact of them all to negotiate.
Whether you date it to the Hellgate Treaty of 1855 that created this reservation, or to a point thousands of years ago when the reservation was but a small part of the aboriginal territory occupied by ancestors of the Salish, Kootenai and Pend d'Oreille people, there is little question about who was first in time when it comes to water use.
The current negotiations are important to all reservation residents, Tweeten says, “because tribal claims in Montana arise at a date that places them very early in priority rights.”
If you only use water to operate a household on the reservation, Tweeten says, “it's hard to anticipate an agreement that would jeopardize that.”
But farmers and ranchers whose land has been irrigated using water from a particular source for 100 years or more are still a “junior user” to the tribes, who at a minimum can point to that 1855 treaty establishing the reservation.
The court cases have held that the amount of water reserved would be what it would take for the lands to fulfill their federally created purpose.
In the case of the Flathead Reservation, the purpose was to provide a homeland for the Confederated Salish and Kootenai Tribes, says Clayton Matt, head of the CSKT Natural Resources Department.
“Our claim is to all the water on the reservation,” he says. “We want to negotiate a solution to managing it.”
Key to a first-of-its-kind proposal the tribes have placed on the table - to negotiate a unitary management system for all reservation water under tribal ordinance that would be jointly operated by a state-tribal-federal committee - is to recognize and protect existing uses, and create a system to file for future uses, according to Matt.
A report from CSKT representatives on an outline for the proposal is on the agenda for Friday's 9 a.m. negotiating session at tribal headquarters in Pablo - a makeup of January's session that was canceled because of bad weather.
“We've looked at it, and are in the process of formulating a response,” Tweeten says. That response would likely come at February's regularly scheduled meeting.
The federal, state and tribal parties involved tentatively meet on the last Wednesday of every month.
Tweeten says the negotiations are about “reaching an agreement that quantifies the tribes' water rights, and administers water rights in a way that doesn't adversely affect anyone.”
“It's not about who owns the water,” he says. “We seek a settlement that addresses the wet-water needs of everyone on the reservation.”
So what if a settlement isn't reached by July 2009?
That's when the “sun sets” on the 29-year-old Reserved Water Rights Compact Commission, which is currently not authorized to exist beyond that point. But Matt points out that the Legislature has extended the date several times in the past so that compacts could be reached.
A request by the CSKT to extend the deadline in the last session of the Legislature was opposed by the governor's office, and died in committee.
“The word was they wanted to hold everyone's feet to the fire, and keep the pressure on to reach an agreement,” says Rob McDonald, spokesman for the tribes.
Tweeten says an agreement is doable within the time frame currently available.
“I'm convinced it is,” he says. “There are breakthroughs in negotiations all the time. In my experience, the people involved here are working hard and negotiating in good faith.”
Tweeten says that even if a compact isn't finished before the 2009 Legislature - which meets for 90 days beginning in January - wraps up its business, an agreement finished before July of that year could be presented to the 2011 Legislature.
The 2009 Legislature could also extend the life of the compact commission, or offer an alternative method of negotiating a settlement.
But if none of that happens, the tribes warn that a monumental court case likely lasting decades would result.
The tribes would have six months to file their claims. All of the approximately 4,000 people who have already filed claims to water rights on the Flathead Reservation would likely have to “lawyer-up” and defend their rights - not just against the tribes, but against each other.
“It would keep a lot of lawyers busy for a long time,” Tweeten says.
The refusal of the Legislature to extend the deadline has forced the tribes to prepare for the possibility, Matt says.
“We're negotiating and preparing for litigation,” he says. “Both things are running on a parallel track. We have to be ready to go if we don't reach an agreement.”
The good news is, it's in the best interests of all involved to avoid that if possible. Montana's Reserved Water Rights Compact Commission represents the state and its people, and leaving a lot of those people hanging without an agreement wouldn't go over well.
It would likely cost the tribes, meantime, untold millions of dollars to fight for in court, for decades to come, what they can negotiate for now.
“Negotiation is the preferred tack,” says McDonald, the CSKT spokesman, “because it offers more flexible solutions.”
Meeting time
The next negotiating session over water rights on the Flathead Indian Reservation, a makeup of the January meeting canceled because of bad weather, is Friday at 9 a.m. in council chambers at the Confederated Salish and Kootenai tribal headquarters in Pablo. The monthly sessions include public comment periods.
Reporter Vince Devlin can be reached at 1-800-366-7186 or at vdevlin@missoulian.com.
|
 |
 |
Add your comment now! Write your comment in the form below.
(Email address is for verification only. If you'd like to email a story, look for the link above)
Travis branson wrote on Mar 1, 2009 12:03 AM: