September 27, 2012
Water rights meeting set for Wednesday, October 3
By B.L. Azure
POLSON — The Flathead Nation, the United States and the State of Montana will conduct a federal reserved water rights compact negotiation session Wednesday, October 3, beginning at 9 a.m. in the Best Western KwaTaqNuk Resort and Casino.
The negotiating parties have until June 30, 2013 to come up with a mutually agreeable settlement for water rights claims on — as well as off — the Flathead Indian Reservation. Also in the mix is the settlement agreement related to the water supply to the Flathead Indian Irrigation Project.
However, the parties want to have the settlement in writing to present to the 2013 Montana Legislature that convenes in January 2013. Prior to that a draft compact agreement must go through the public review process. It also must be okayed by the Montana Water Court, the State Legislature and the Confederated Salish and Kootenai Tribes and the governor.
Following that the final compact document must be ratified by the U.S. Congress then onto the president of the U.S. for his/her signature.
The negotiations informally began at the beginning of the new millennium/century. For the last eight years the negotiating parties have bellied up to the table for official negotiation talks.
While not going smooth all the time the negotiations and public input at them have been relatively amicable with a few barbed comments from those feeling pricked by the process.
However, about five months ago the tenor and tone of non-Indian public input has changed when the negotiations switched to the CSKT’s 1855 Treaty of Hell Gate articulated and reserved off-reservation time-immemorial rights in the Tribes’ aboriginal territory that comprises much of western Montana. In exchange for the present 1.2 million acre reservation the CSKT ceded approximately 20 million acres of western Montana but retained the time-immemorial rights to hunt, fish and gather in their aboriginal homeland.
The folks in those areas north of the reservation began attending the public sessions in large numbers and loud voices that exhibit little understanding of history, of federal treaty law — the highest law of the land — and the law of prior appropriation — first in time, first in line water appropriation doctrine of the West — as well as the U.S. Supreme Court ruling that established the Winters Doctrine that articulates the federal reserved water rights for Indian reservations.
In that wake the once apparent smooth sailing settlement agreement for water supplied to Flathead Indian Irrigation Project have in the last couple of months become snagged on a rocky bottom. Non-Indian irrigators served by the FIIP own the vast majority of the lands served by it and have raised their concerns and voices related to the FIIP settlement agreement in part worded and worked out by representatives of the Flathead Board of Control, the state chartered entity that represents irrigators from the various irrigation districts of the FIIP and the CSKT, with federal oversight.
Both parties — on-reservation irrigators and off-reservation public — say they are getting the short shrift and their concerns are muffled in the negotiation processes related to the two issues that are burrs in their tender spots.
That will probably continue in the upcoming negotiation session.
The meetings will follow the well-known format. There will be an opening prayer, introductions of the negotiating parties members, opening statements, technical and legal presentations, question and answer, open-ended comments, closing statements and setting of the next session date.
The State of Montana and the other six tribal nations have already negotiated settlements.
The Flathead Nation’s 1855 Treaty of Hell Gate is more complex than the other negotiated treaties and has far reaching claims that the others don’t. Consequently it is taking longer negotiate a settlement and it is a few minutes before midnight.