|March 15, 2012
Water rights session focuses on Tribes’ on- and off-reservation claims
By B.L. Azure
CSKT Council Chairman Joe Durglo flanked by lead water rights attorney John Carter and lead negotiator Clayton Matt addresses the public at last week’s negotiation session. (B.L. Azure photo)
POLSON — The Confederated Salish and Kootenai Tribes, the United States and the State of Montana met here the last day of February to continue negotiations for a federal reserved water right for water on and off the Flathead Indian Reservation.
The negotiating parties are in the under-the-gun lap for hammering out a federal reserved water rights compact for the Flathead Nation. They want the federal reserved water rights compact to be ready to present to the Montana Legislature in the 2013 legislative session that begins January 2013. A lot of work has been completed but more remains.
Tribal Council Chairman Joe Durglo welcomed the public and participants to the negotiation session for the first time as the leader of the tribal government.
“Our interest is to pass on what we have to our children,” Durglo said. “To that end we want the negotiating parties to follow the tenets of the Hellgate Treaty.”
The 1855 Treaty of Hell Gate is a powerful guiding nation-to-nation document that articulates and acknowledges the Flathead Nation’s sovereignty and their time immemorial rights that pre-date the establishment of Montana as a territory and as a state. The highest law of America Treaty is the bedrock upon which the CSKT stand in their water rights negotiations.
CSKT hydrologist Seth Makepeace gave a technical update on the Tribes’ on-Flathead Indian Reservation wetlands and high mountain lake water and stream claims. The high mountain lakes and emanating streams are all located on tribally owned land and have a time immemorial exclusive use claim articulated in the 1855 Treaty of Hell Gate.
The lone exception to the Tribes exclusivity of the high mountain water claims is Black Lake in the upper Jocko Canyon. There is a State based water right there for recreational purposes. That water would remain in the State’s database, Makepeace said.
All water on the Flathead Indian Reservation was articulated for the exclusive use of the Salish and Kootenai people in the 1855 Treaty of Hell Gate. However, much of that water right flowed out of that exclusivity with the allotment act, the opening of the reservation to homesteading and the construction of the Flathead Indian Irrigation Project. Those coupled with, at times nefarious, transfers of individual Indian held water rights to non-Indians resulted in the lion’s share of the quantifiable tribal water right evaporating from the original owners’ control.
Montana Reserved Water Rights Compact Commission attorney Jay Weiner gave a presentation regarding the State’s proposed resolution to the CSKT’s off-Flathead Reservation water rights claims that are buttressed by the 1855 Treaty of Hell Gate. (B.L. Azure photo)
Ninety percent of the Tribes original water rights claims are used by FIIP to irrigate approximately 125,000 acres of land under the Project. The vast majority of the land is under non-tribal ownership. Consequently the Tribes have been seeking replacement water from Hungry Horse Reservoir for that loss as well as exclusive ownership of the water in the high mountain lakes and streams, and the lower wetlands in the valleys. Much of that water would help ensure in-stream flows, as well as protect and maintain the wetland ecological environment on the reservation.
Makepeace said any of the Tribes asserted claims would not negatively affect valid junior water rights on the reservation held my Indians and non-Indians. That guaranteed protection of the legal junior water rights is a cornerstone of the Tribes proposal for a water compact acceptable to all.
Jay Weiner, attorney for the Montana Reserved Water Rights Compact Commission, gave a power point presentation on the State’s proposed solution to the Tribes’ off-Flathead Reservation water right in their aboriginal homeland as articulated in the 1855 Treaty of Hell Gate. The Tribes are presently reviewing the State’s proposed resolution.
Weiner said the State recognizes the appropriate scope of the CSKT’s off-reservation water rights, as articulated in the Treaty, the highest law of America. They will be acknowledged as part of the comprehensive water rights settlement.
The State will also protect existing users, meet the biological needs of western Montana fisheries and retain flexibility for new permitting in the off-reservation water basins not closed to new appropriations. Those basins include, the Kootenai River, the Flathead River, the Upper Clark Fork River and the Lower Clark Fork River.
Weiner said the State proposes to recognize in-stream flow rights in the Kootenai and Swan River Drainages; establish co-ownership between the CSKT and Montana Fish, Wildlife and Parks of the latter’s contract rights in the Bitterroot Valley as well as establish co-ownership between CSKT and MFWP of the non-consumptive water rights formerly associated with Milltown Dam.
Lincoln County Commissioner Tony Berget of Libby expressed concerns about the State’s proposed resolution to the CSKT’s off-Flathead Reservation water rights and its effects on Lincoln County. (B.L. Azure photo)
The State would ensure the Flathead Lake and Flathead River above Kerr Dam be protected as articulated in legal biological opinions, Kerr operational plans and the Flathead Lake Level Management Plan, as well as recognition of CSKT’s right to Flathead system compact water.
The State also proposes co-ownership between CSKT and MFWP of MFWP’s in-stream and recreation right claims filed in the adjudication in the Swan, Kootenai, Bitterroot, Upper Clark Fork, Blackfoot and Flathead rivers drainages. Weiner articulated the specifics of the State’s proposal in each of the drainages.
For the specifics of the States’ proposal to settle the Tribes off-reservation claims, visit website: https://dnrc.mt.gov/rwrcc/Default.asp
The next water rights negotiation session is 9 a.m. Wednesday, April 4, at the Best Western KwaTaqNuk Resort and Casino in Polson.