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Water rights settlement deadline is July 2009

By Maggie Plummer

Tribal Chairman James Steele, Jr. and Tribal Council members Steve Lozar, Bud Moran and Charlie Morigeau joined Clayton Matt (far left) in listening hard during last Friday's water rights negotiation session. (Maggie Plummer photo)

"Things are changing fast. Imagine 20 years from now. Remember that this Tribe is working to protect this little bit of land we have left, and we're going to do what we have to do to protect it. Water to the Indian people is a healing, sacred substance."

With those words, Pend d'Oreille elder Pat Pierre closed last Friday's sometimes-emotional water rights negotiation session in the Tribal Council chambers.

The three-hour-long Feb. 8 session was the latest in a series of meetings with the state's Reserved Water Rights Compact Commission to hammer out a water rights settlement for the Flathead Reservation.

This is probably the most complicated water compact the commission has tackled to date, for several reasons: most people who live here are non-tribal members; this reservation has an intricate, checkerboard land ownership pattern and history; and the reservation's aging Flathead Irrigation Project supplies agricultural water to about 127,000 acres of farm and ranch ground.

As if that wasn't enough of a challenge, the clock is insistently ticking for these water rights negotiations. The deadline for reaching a settlement is July 2009, because after that the Montana Reserved Water Rights Compact Commission will no longer exist.

There may be options, however, such as the state legislature extending the commission's existence to allow for this water rights compact.

When the Tribes asked to extend the July 2009 deadline during the most recent legislative session, the governor's office opposed their request, which then went nowhere. At the point the Tribes began preparing for the possibility of going to court, according to Clayton Matt, Tribal Natural Resources Department Head.

But Chris Tweeten, the head of the compact commission, feels that Flathead's settlement will be reached by July 2009. He believes that the Tribal, state, and federal officials involved are hard workers who have no hidden agendas.

According to him, another option would be to present the negotiated settlement to the 2011 legislature. Or, the 2009 legislature may extend the compact commission's existence or find another way to reach a settlement.

If time runs out with no options for a settlement, it could mean a huge, extremely expensive court case that would last for years and years. Of the 4,000 or so people who have filed claims to water rights on the reservation, every single claimant would probably get a lawyer and fight other claimants and the Tribes for their water rights.

No one wants that, officials said.

Friday's meeting
Tribal Chairman James Steele, Jr. attended the Feb. 8 session, as did Councilmen Bud Moran, Steve Lozar, and Charlie Morigeau.

Approximately 60 people attended the meeting, which was emceed by Clayton Matt. On the agenda were the Tribes' outline for a Proposed Unitary (water) Administration, a report about the Tribes' definition of "shared (water) shortages," and other technical issues.

Chairman Steele opened the session by welcoming everyone and reading from the Hellgate Treaty of 1855. "I am reminding everyone that this is a reservation," he said in a strong voice that at times shook with emotion. "The U. S. did not give the people this reservation. The state of Montana did not exist at the time of this treaty. This was the Territory of Washington then."

The Chairman told the gathering that "our chiefs fought to keep this reservation from being opened for settlement." Tribal members are outnumbered on their own reservation, he said.

"Indians are not out to get you (non-Indians)," he emphasized, pointing out various areas of cooperation and collaboration on the Flathead Reservation. "I don't think you would have these areas of agreement if we were out to get you."

The Tribes don't want to go to court, Steele said. "But look to Wyoming's Wind River Reservation if you want to know where we'll wind up if we do go to court."

Tribal attorney Rhonda Swaney talked about the Tribes' "Outline of Unitary Administration Ordinance," in which the Tribes propose a five-member water management board with two members appointed by Tribal Council, two by the governor of Montana, and one by the federal government. The idea is to have local control, Swaney said.

Tweeten responded that he wanted time to review the proposal and collect the team's thoughts. Matt emphasized that the proposal is not meant to be a "take it or leave it" proposition.

Tweeten said that by the next negotiation session, the state team will hopefully have studied it. Matt urged him and the rest of the state team to feel welcome to contact the Tribes with any questions.

The state team expressed general encouragement about how the Tribes defined the term "shared (water) shortages."

During a break, the state team met privately in a separate room.

Back in session, Matt said that the Tribes invited state and federal officials to join in putting out educational material about water rights issues.

The public comment portion of the session included several strong, heartfelt opinions.

"Why are we negotiating?" Bearhead Swaney asked the gathering in a booming voice. "I don't want to compromise. This is the Tribal Council's decision to make. We don't know what our water needs will be, years from now...quantifying water is a bad idea. I don't see us negotiating with anyone but ourselves. We've tried to negotiate and we've lost every time. We've lost from 1855 on!"

Attorney Dan Decker said that "it's good to see the parties at the table." He added that "the Tribes are making a huge, huge compromise putting a unitary administration on the table...I'm encouraged by the process." However, he said, "don't underestimate the Tribes' resolve to protect their water."

Thompson Smith of the Salish-Pend d'Oreille Culture Committee took a turn at the microphone, pointing out that "there are many non-members who live here and don't oppose the Tribes - people who have come here as adults knowing this is a reservation." If some movement isn't made toward a settlement, the water rights issue is going to end up in court, he said.

Tony Incashola, Director of the Salish-Pend d'Oreille Culture Committee, feels that the Tribes are approaching a crisis point with water issues on the reservation. "There should be no negotiations," he told the group. "The negotiations were done in 1855. The Indian people have been compromising for more than 500 years. What are we going to pass down to our children? We have to think of those generations to come. Let's pull together, find a solution. Think about your children and great grandchildren."