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State lays five points of discussion on table at water compact meeting

By B.L. Azure

CSKT Council Chair James Steele, Jr. (right) elaborates on the Tribes position related to the water compact. Attorney John Carter (left) and Clayton Matt are members of the Tribes’ water compact team. (B.L. Azure photo)

PABLO - Representatives from the State of Montana, the United States and the Confederated Salish and Kootenai Tribes met last Wednesday (April 30) to spar and parry over the contentious issue of water management within the exterior boundaries of the Flathead Indian Reservation.

CSKT Council Chair James Steele, Jr. told state and federal representatives that while the Tribes are actively involved in the negotiation process with the Montana Reserved Water Rights Compact Commission they are also preparing for litigation.

The negotiations have gone on for quite a spell. "Technically we have been in negotiation over water rights since 1979," said Clayton Matt, head of the CSKT water compact negotiation team. The Tribes are concerned that a water compact may not be realized before the MRWRCC legislative-granted life comes to an end on July 1, 2009. Heretofore proposals to extend it have fallen on deaf legislative ears in Helena.

Consequently Steele said the CSKT are actively preparing for a long drawn out legal battle with the State over which entity owns the water resource and which will manage it.

The Tribes claim senior and exclusive rights to the water based on the 1855 Treaty of Hellgate and the 1908 Winter's Doctrine that articulated the federal reserved water right.

The 1855 treaty established senior rights to water long before Montana became a state in 1889.

A federal reserved water right is the right to use water implied from an act of Congress, a treaty, or an executive order establishing a tribal or federal reservation. A reserved water right is not limited to past or present use; future uses can also be factored in when quantifying the amount.

The Tribes have proposed that water within the reservation be managed by a five-member commission as a unitary resource. The commission would be comprised of two representatives named by the CSKT, two appointed by the State and one appointed by the federal government. The unitary water resource management means all surface and subsurface water would be treated as a single resource. The State indicated that concept of unitary management was okay with them but the devil was in the details.

The Tribes say they have ceded a lot to the federal and state governments through the years and aren't willing to roll over on the unitary management issue. They maintain that the five-person commission is about as much acquiescing they are willing to do.

On Wednesday, MRWRCC Chair Chris Tweeten responded in part to the Tribes proposals by setting forth five issues they want the CSKT to mull over and respond to at the next scheduled meeting on May 28.

The State does not want unilateral change opportunities in any compact reached available to either side. Any changes to a water compact would have to be agreed to by the involved parties.

The State proposed that the five-member water management board be an independent entity sans of tribal- and state-appointed representatives.

The State doesn't want a federal presence on the water management board because it would give the Tribes a perceived advantage on the water board. The federal government is the trustee of federally recognized Indian tribes.

Tweeten said federal authorities have indicated to him that they don't want to be on the board. That position was espoused by Duane Meekum, federal government representative at the meeting. "No, we don't want to be on the management board," he said.

The State proposed a joint technical team comprised of CSKT and Montana Department of Natural Resources technicians that would work jointly to identify and develop water resources on the reservation.

The State proposed development of a process to expedite the development of new domestic water permits for wells up to 35 gallons a minute.

"Domestic wells are a concern. People ought to be able to develop ground water wells without too many problems. It should be as easy to develop a ground water well on the reservation as off," Tweeten said. "These are the five points we are willing to discuss this afternoon."

Matt told the MRWRCC that unitary management of the water resource within the exterior boundaries of the reservation was the centerpiece of the Tribes negotiation proposal. He said the negotiations are progressing and not at a standstill and that he would take the State's proposals to CSKT Council and appropriate staff for comments and direction.

In his closing Steele reiterated his opening remarks. "We are actively preparing for litigation," he said. "We are also preparing for the active negotiation of these issues."

Steele said the 1855 Treaty of Hellgate between the United States and tribal nations identified in it as the Confederated Salish and Kootenai Tribes laid the groundwork for the sovereign nation-to-nation relationship between the federal government and the Tribes. Any talk of compact negotiations with the State sans a federal presence is dead in the water.

"From our perspective these negotiations should be between the Confederated Salish and Kootenai Tribes and the United States and not with the State of Montana," Steele said. "In some way, shape or form we need to have the federal involvement."

Steele responded to Tweeten's claim that the State has made concessions on the water compact issue.

"We as the Tribes have given up the most of anyone in this room. Our ancestors have given up the most" Steele said. "I am just diplomatically reminding the people here that our Salish, Pend d'Oreille and Kootenai people have conceding many, many times. Sometimes willingly and sometimes not."

Steele said the Tribes have the ability to manage reservation resources and have proven so in the past. Consequently he feels confident the CSKT can professionally and fairly manage the water resource.

"When it comes to unitary administration of the water I have full confidence that we can do this" Steele said. "We welcomed Lewis and Clark when they got here. If we knew what was to come afterwards we might not have been so welcoming."

Tweeten said he appreciated Steele's "eloquent words" but. "I want to emphasize recent history. Twenty-five to 30 years ago our fore bearers offered tribes a place in the negotiating process," he said. "I am confident in this process. Ultimately we'll have an agreement that all sides agree to not one through litigation."

Pend d'Oreille elder Pat Pierre and member of the CSKT negotiating team echoed Steele when it came to who should be seated at the water rights negotiating table. The Tribes were here first then came the State of Montana.

"When they don't like what the Indians are doing they make laws against it," Pierre said. "The water resources in this reservation belong to the Tribes. I don't see our proposal taking anything away from people. The only ones opposed are people who don't want the Tribes to do anything. This has been going on all my life, all 79 years and will probably be going on for another 79 years. We are here to protect these resources not only for now but for generations to come."

Whether or not a water compact is reached before another generation goes by is unknown. Almost two generations have passed since 1979 and if compact is not reached by July 1, 2009 legal battles ensure another generation or two will pass before water management and quantification on the Flathead Indian Reservation is articulated by the courts.

The next water compact meeting is tentatively scheduled for Wednesday, May 28.