Water rights negotiation session draws large crowd
By B.L. Azure
Tribal Councilman Steve Lozar took umbrage with Rick Jore’s concern that the Tribes might have influence over who the State might put on the management board of the Unitary Management Ordinance. (B.L. Azure photo)
POLSON — The attendance at the last three negotiation sessions for the Flathead Nation’s federal reserved water rights compact has been on the rise. The June negotiation session between the Confederated Salish and Kootenai Tribes, the United States and the State of Montana at the Best Western KwaTaqNuk Resort and Casino drew nearly 100 people. The rising public attendance — and concern — coincides with the recently articulated CSKT’s off-Flathead Indian Reservation claims and the State’s proposal to satisfy them, mainly by sharing State held water rights claims in the affected off-reservation drainages.
The State’s proposal to share their off-Flathead Reservation water rights in the Bitterroot, Kootenai, Flathead, Swan, Upper Clark Fork, Blackfoot, Fisher and Tobacco rivers basins and drainages are mainly non-consumptive water that would be used to supplement instream flows.
Many in attendance seemed unaware that the negotiations have been ongoing for many years now.
“The Tribes choices are to settle in court or through negotiations,” said Duane Mecham, United States representative on the water rights negotiation team, who serves as trustee for the CSKT. “This is the last major tribal settlement in Montana. Our goal is to submit legislation to the 2013 Montana Legislative session.”
Rick Jore of Ronan expressed concern about the proposed makeup of the board that would oversee administration of the proposed Unitary Management Ordinance for the water rights compact for the Flathead Indian Reservation. (B.L. Azure photo)
Mecham said the Tribes’ proposal for the Flathead Nation water rights compact: acknowledges and protects existing verified water use permits; calls for additional water from Hungry Horse Reservoir and the Flathead Basin to meet the Tribes needs that among other things includes instream flow rates; and, establishes a unified administration of water uses via the Unified Management Ordinance.
The Tribes, he said chose negotiations: because the status quo won’t work for future management; to avoid the long drawn out and expensive litigation route; and, because the process would adjudicate all water rights on the Flathead Indian Reservation including the tribal rights and the non-Indian rights, and tribal government rights off the reservation.
Six of the seven tribal nation federal reserved water rights compacts have negotiated and settlements announced. The Flathead Nation’s federal reserved water rights compact claims however are guided by the 1855 Treaty of Hellgate. The treaty was negotiated by Oregon territorial Gov. Isaac Stevens, who also negotiated many other treaties with Northwest Indian tribes.
In general the Stevens treaties articulate more off-reservation reserved rights than did the Fort Laramie treaties which most of the eastern Montana tribal nations signed. That has put a hitch in the giddy up approach the State used on the six others and has raised the concerns of the off-reservation populace as well as some on-reservation factions.
“These are pretty complex negotiations,” said John Carter, lead water rights negotiation attorney for the CSKT. “No other tribal compact in the state has off-reservation uses. The Tribes have pretty strong treaty rights.”
The bottom line is that the CSKT’s water claims must be quantified and adjudicated prior to the adjudication of the non-Indian claims.
Lead tribal water rights negotiating team attorney John Carter responds to queries from the audience at the latest water compact negotiation session. Tribal Council Chairman Joe Durglo is next to Carter. (B.L. Azure photo)
Montana is a first in line first in claim when it comes to water rights. With that determination criteria the CSKT have an 1855 priority date as articulated in the 1855 Treaty of Hellgate. They also have time immemorial priority date that was also articulated in the Treaty of Hellgate. Both those dates predate the establishment of Montana as a territory and as a state. There is also CSKT exclusivity access and uses to water on the Flathead Indian Reservation.
The 1908 Winters Doctrine, a ruling by the U.S. Supreme Court stated that when the United States set aside land for an Indian reservation, a quantity of water is reserved necessary to fulfill that specific federal purpose.
However the Allotment Act for individual Indians, the construction of the Flathead Indian Irrigation Project, and the opening of the reservation and the Homestead Act for non-Indians put the CSKT’s water claims in a rusty hole-filled bucket. Soon the CSKT’s exclusive water right was owned almost exclusively by non-Indians, much of it used for irrigation purposes by FIIP.
Mecham said the benefits of the negotiated settlement, would: protect verified existing uses, including tribal member uses; allow new domestic and stock water permits; provide legal protection for pending domestic wells and permits that are currently in limbo; recognize on- and off-reservation instream flows; provide additional water resources for the Flathead Reservation; fund habitat and FIIP improvements; provide more benefits than litigation; and, provide more local control than litigation.
The key issues of the settlement would resolve the CSKT’s water right claims; administer all future water rights on the reservation; and would result in federal and state financial contributions to the settlement.
The negotiated compact would: confirm and quantify all tribal water claims; establish the foundation for the administration of water rights on the reservation; and, be decreed by the Montana Water Court as the final settlement of the Flathead Nation’s water rights.
John Swenson of Ronan expressed his concern about senior and junior water rights priority dates. He said through this process his water rights would become junior water rights when compared to the Tribes’ priority dates.
Montana Reserved Water Rights Compact Commission attorney Jay Weiner addresses concerns raised at the June reserved water rights compact negotiation session. (B.L. Azure photo)
Montana Reserved Water Rights Compact Commission attorney Jay Weiner responded that the Commission wasn’t “playing around with priority dates.” He said Montana was a first in time, first in line state when it comes to water rights.
“The 1908 Winters Doctrine established the priority dates on federal lands, the dates the reserves were created,” Weiner said. “In this case it is the Treaty of Hellgate. In 1855 the treaty established the water right for the Confederated Salish and Kootenai Tribes. That date is senior to everyone else. So is the other, the time immemorial date. The Tribes have always had senior water rights but they are making concessions to protect existing uses.”
“The Tribes water rights started when the reservation was created in 1855,” said Chris Tweeten, MRWRCC Commissioner. “All other water rights are junior to the Tribes. The dates have always been there.”
Longtime foe of anything tribal, Rick Jore said he was concerned that the Tribes would have influence over the makeup of the joint administrative board comprised of two CSKT appointees, two State appointees and one federal appointee.
“Some of us have concerns about the Tribal Council influence on the board make up and that tribal members have on the two tribal appointed board members,” Jore said, adding that depending upon the make up of the State government administration the Tribes could further influence the board makeup at the State level.
Weiner responded that the MRWRCC is aware that tribal members are citizens of their tribal nations as well as state citizens and American citizens. “The State has to recognize tribal members and their concerns as the state citizens they are,” Weiner said. “A hearing with a thumb on the scale can’t come up with a fair solution for the reservation, for the area, for the entire state. Our track record reveals that we don’t stack the boards.”
Weiner added that any outcome unsatisfactory to one of the affected parties could be appealed to a court of competent jurisdiction.
The next negotiation session is tentatively set for Wednesday, August 29.