Brief History of the FRWRC
Federal Reserved Water Rights were created when the U.S. Supreme Court made the decision in the 1908 Winters vs. United States case about a Fort Belknap Indian Reservation water claim. In the Winters decision, the Supreme Court ruled that when the U.S. Congress or the president sets aside land out of the public domain for a specific purpose, such as an Indian reservation, national park or national forest, a quantity of water is reserved based on the amount necessary to fulfill the specific federal purpose.
The McCarran Amendment In 1952 mandated that Federal Reserved Water Rights had to negotiated and adjudicated in state courts.
Prior to that, leaders of the Salish, Pend d’Oreille and Kootenai people on July 16, 1855 signed the Treaty of Hell Gate. In the Treaty, the embryonic federally recognized Flathead Nation agreed to cede 12 million acres of their Aboriginal Homeland, however the Homeland encompassed more than 22 million acres, to the federal government but reserved 1.25 million acres that is now the Flathead Indian Reservation. The Treaty of Hell Gate was ratified on March 8, 1859.
Although the Confederated Tribes ceded a huge swath of land, they retained numerous preexisting rights to the land. The most important retention of the time-immemorial rights was articulated in Article 3 of the Treaty of Hell Gate. It proclaims: “The exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.”
Article 3 is the bedrock foundation of the Flathead Nation’s FRWRC claim, and opposition to it did not crack the foundation.
In 1972 Montana adopted its rewritten constitution, and among the many forward-looking articles was Article IX, section 3(4) that related to the quantification and administration of water in Montana. It read, “The Legislature shall provide for the administration, control, and regulation of water rights and shall establish a system of centralized records, in addition to present system of local records.”
However, the local records were an inadequate non-centralized quagmire of records, and not a good foundation to base a state-wide centralized system upon. As a result, in 1973, the Montana Legislature took its first steps in the direction towards laying the groundwork for ways to comprehensively catalogue water rights in the state with the 1973 Water Use Act.
To that end, in 1979 the Montana Legislature enacted Senate Bill 28, which established the statewide proceedings for the adjudication of a water rights in the state including federal and Tribal Nations federal reserved water rights.
The bill established the Montana Legislature established the nine-member Montana Reserved Water Rights Compact Commission (MRWRCC), as part of the state’s general stream adjudication effort. The commission’s charge was to negotiate federal reserved water rights claims rather than litigate in the court system.
The federal lands include: the seven Tribal Nation reservations; and the federal land holding agencies that includes, the: National Park Service, US Forest Service, US Fish and Wildlife Service, US Department of Agriculture, and Bureau of Land Management.
The negotiations for the Flathead Nation’s federal reserved water rights compact began in the mid-1980s but were soon put on the off-back burner while lawsuits that would have consequences on compact made their ways through the courts.
The negotiations were put back on the hot front burner in 2001, and public monthly negotiation meetings between the CSKT and the Montana Reserved Water Rights Compact Commission began in earnest then.
The FRWRC saga ended this last week.
The resolution of the CSKT FRWRC now leaves only the Fort Belknap as the only Tribal Nation in Montana without a FRWRC. The state of Montana approved their FRWRC in 2001; it is awaiting the U.S. Congress to approve it.