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CSKT water rights talks hitting turbid and turbulent white water

By B.L. Azure

David Passari, who recently moved to the Flathead Indian Reservation, has been a staunch critic of the Federal Reserved Water Rights Compact being negotiated for the Flathead Nation. (B.L. Azure photo) David Passari, who recently moved to the Flathead Indian Reservation, has been a staunch critic of the Federal Reserved Water Rights Compact being negotiated for the Flathead Nation. (B.L. Azure photo)

POLSON — It’s been at least eight years since the Confederated Salish and Kootenai Tribes took a seat at the Montana Reserved Water Rights Compact Commission’s table to hammer out a mutually agreeable federal reserved water rights compact for the Flathead Nation through the negotiation process.

Representatives from the CSKT, the State of Montana and the United States as trustee for the CSKT have gathered nearly once a month since in public negotiation sessions on the Flathead Indian Reservation. There have been summer and winter holiday breaks in the schedule but mostly the three governments have continued with steady amicable negotiation discussions that are open to the public.

The public participation at the sessions has been for the most part respectively cordial between the divergent opinions on the process and the issues with an occasional top or two blown.

However, that cordiality has down shifted quite a bit the past four or five months as non-Indian residents on and off the Flathead Indian Reservation have become more stern and forceful in their arguments against a negotiated federal reserved water rights compact settlement for the Flathead Nation. One leg of their argument is based on the CSKT’s off- and on-reservation water rights and the other is related to water that supplies the Flathead Indian Irrigation Project.

The factions opposed to that feel the CSKT are getting something for nothing and/or will limit their access to water or diminish the quantity available to them. Many feel they will be deprived of their water needs in order to satisfy the CSKT’s eventually quantified needs.

The CSKT reserved time immemorial rights to water for sustenance in their original 20 million acre homeland through the federal treaty process in the mid-1800s. In exchange for the vast western Montana homelands, the CSKT in the 1855 Treaty of Hell Gate reserved the 1.2 million acres that became the present Flathead Indian Reservation.

They also, among other things, reserved the right to hunt, fish, harvest and gather on open public lands in their original homeland. Pursuant to that reserved right was the perceived need to ensure enough water in western Montana rivers and streams to maintain a healthy fishery from which the CSKT could harvest fish.

Montana Reserved Water Rights Compact Commission members, attorney Jay Weiner and Chair Chris Tweeten listen to the politically charged testimony at last Tuesday evening’s open house public information meeting in Polson. (B.L. Azure photo) Montana Reserved Water Rights Compact Commission members, attorney Jay Weiner and Chair Chris Tweeten listen to the politically charged testimony at last Tuesday evening’s open house public information meeting in Polson. (B.L. Azure photo)

Through the years, the CSKT’s off- and on-reservation reserved rights have been challenged then upheld time and time again by federal and state court decisions. Through those legal battles two dates of import to the CSKT have bobbed to the top of the legal opinions. They acknowledge the CSKT’s time immemorial rights to water in their aboriginal territory as well as a date-specific water right — both articulated 1855 Treaty of Hell Gate. Both dates predate the establishment of Montana as a territory and a state. The CSKT have the legally articulated and judicially upheld senior water rights in their aboriginal western Montana homeland.

It is the quantification of those water rights that is presently being negotiated. However as the midnight hour draws close non-Indian factions have hit the panic button.

The negotiating parties want to complete the compact language in time to present it to the 2013 Montana Legislature session that begins in January 2013. However that could be in jeopardy as some opponents to the negotiated settlement say the present in the works compact is not palatable to them. They say they are prepared to litigate the matter.

Dixon area bison rancher Chris Sullivan said as much at last Tuesday’s public information open house. He said the Western Montana Water Users Association is ready for a court battle.

“We have hired an attorney to help us maintain our historical use of water on this reservation,” Sullivan told the negotiating officials.

Jon Metropolis, attorney advising the Flathead Joint Board of Control’s settlement negotiations for water that supplies the Flathead Indian Irrigation Project, answered queries from doubters of the fairness of the settlement. (B.L. Azure photo) Jon Metropolis, attorney advising the Flathead Joint Board of Control’s settlement negotiations for water that supplies the Flathead Indian Irrigation Project, answered queries from doubters of the fairness of the settlement. (B.L. Azure photo)

Polson realtor Ric Smith advised his fellow non-Indian water users against the litigious process because of the expense, the time, the uncertainty and the bruised relations that will be the bitter harvest of the court battles. He said the courts have more often than not ruled in favor to the CSKT. That includes the U.S. Supreme Court decision in the Namen case that upheld the CSKT’s claim to ownership of the south half of Flathead Lake. Also the Montana Supreme Court ruled in the mid-1990s that the Montana Department of Natural Resources could not legally issue water rights permits on the Flathead Indian Reservation until the CSKT’s water rights were quantified.

Smith also recalled many other legal battles and other exercises of tribal on-reservation authority that pitted the CSKT against mostly non-Indian opposition. The sky didn’t fall as many said it would.

“The hunting and fishing issue was hotter than this,” Smith said about the CSKT’s exclusive right to hunt and fish on the Flathead Indian Reservation. The CSKT’s exclusive rights to hunt and manage wild game and fisheries on the reservation were upheld legally. Under the CSKT management non-Indians can purchase permits to bird hunt and fish on the reservation. However, they can’t hunt big game. “People said we would not be able to fish on the reservation. That didn’t happen. Through the negotiation process the resource and the people have benefitted. That was good for business and good for the social fabric of the reservation. We can solve this issue locally.”

At the regularly scheduled negotiation session Wednesday morning much of the same opposition from the night before was voiced again.

Pend d’Oreille Elder Pat Pierre who serves on the CSKT negotiation team addressed the crowd at the close of the session.

“We are a tribe of people who have been here forever, before Columbus came here. Today we are talking about water rights, my water; your water. People at this table have been coming here for years. Every one of them is working with you in mind. We are neighbors, are we going fight until the water runs dry,” Pierre said. “We need to work together. We need to put aside this ‘are you a tribe or a corporation’ stuff. We have a reservation with a little over a million acres. That is all we have left. We’re going to protect it. It is also your responsibility to protect it. We should be united and work together to protect this land rather than coming here with this jibber-jabber over nonsense issues. You should have been here ten years ago; we’d be done with this. Let’s move along or we’ll be here another ten years. Last night a lot of hands went up to protest this. If you don’t like it here, I’ll help you move… You get up and rant and rave when we need to work together to come up with a solution to this.”

The next negotiation session is tentatively set for 9 a.m. Wednesday, October 3 at the KwaTaqNuk Resort and Casino in Polson.

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