PABLO — The long nearly 40-year journey in turbid and meandering political waters that began on the Flathead Indian Reservation, with stops in the Montana Legislature, the Flathead Nation’s Federal Reserved Water Rights Compact (FRWRC) has docked in Washington, D.C.
Senator Steve Daines, (R-Mont.) submitted the bipartisan, Senator Jon Tester (D-Mont.) co-sponsored S.3019 — Montana Water Rights Protection Act — Dec. 11, 2019; it was referred to Senate Committee on Indian Affairs. Last week on June 24, it was the subject of its legislative hearing in U.S. Senate Committee on Indian Affairs.
In his opening statement to the Committee of Indian Affairs, Daines focused on why the bill is necessary, how it complies with the both the Constitution of the State of Montana and the U.S. Constitution, and how it’s the right thing to do for all of Montana.
“This moment has been decades in the making,” Sen. Tester said in his opening remarks at the Senate Committee on Indian Affairs hearing. “It does great things for building infrastructure both inside the reservation and outside, and it does great things for providing surety to towns and water owners across Montana… we need this water settlement for Montana. We need it for predictability, we need it for certainty, we need it to be able to grow our economy. Water is life — that’s how important it is.”
This is the second go round for the Flathead Nation FRWRC in the U.S. Senate.
The CSKT’s FRWRC was first introduced in the Montana Legislature in 2013 but it didn’t get out of the House Judiciary Committee. A second introduction in 2015 at the Montana Legislature was ratified. Senator Tester carried the bill to the U.S. Senate in 2016 but it didn’t have the backing of the Obama Administration. While the Obama Administration signaled its support for the goals of the settlement, it expressed serious concerns about the cost. Similarly, that bill didn’t have the backing of Sen. Daines due to cost and off-Flathead Reservation water rights, among other concerns.
Since that time the Tribes worked with the Trump Administration and Sen. Daines and negotiated changes to the federal legislation which Sen. Daines introduced last December. Like its predecessor, S. 3019 will ratify the CSKT Compact, but was renamed the Montana Water Rights Protection Act.
During last week's hearing, the sole witness, Assistant Secretary for Water and Science Tim Petty, testified that the Trump Administration has worked with the Tribes to reach additional changes to the language of the bill, which if enacted would carry the full support of the Trump Administration.
In his testimony, Petty stated that the Trump Administration unequivocally supports the funding levels of the bill. At $1.9 billion, S. 3019 is several times higher than any other federal Indian reserved water rights settlement.
Following tweaks to the original FRWRC bill including cutting its cost to $1.9 billion, renaming it the Montana Water Rights Protection Act and other things to sate the concerns of Sen. Daines, he introduced the bill in this Senate session.
Sen. Daines stressed that without his bipartisan legislation, Montana’s agriculture economy could face a $1.3 billion hit, a significant loss of jobs, and would leave Montana’s farmers and ranchers with uncertainty. Department of the Interior Assistant Secretary Tim Petty agreed with Daines’ assessment that his bill will protect Montana’s agriculture economy and highlighted its economic benefits.
The CSKT were the last of the seven Tribal Nations in Montana to have its FRWR Compact approved by the Montana Legislature. CSKT and Fort Belknap Indian Community now both await federal ratification.
The CSKT Compact is also the only one to have off-reservation water rights claims as result of its 1855 Treaty of Hell Gate, that maintained its time immemorial rights to hunt, fish, gather and trap on unclaimed lands, now mostly federal lands, in its aboriginal territory that includes nearly two-thirds of Montana. That took years of historical, cultural, and legal research documentation and successful court cases to established the solid ground on which to stand on to adjudicate and quantify the Flathead Nation claims.
In November 2019, Secretary of Interior David Bernhardt assuaged Sen. Daines’ concerns about off-Flathead Reservation water rights claims in a written response.
Bernhardt said the Department of Interior concluded that local, state, federal and U.S. Supreme Court case law; CSKT’s documented time immemorial history of its wide swath of water usage in its aboriginal territory that encompassed much of what is now Montana; and the 1855 Treaty of Hell Gate, that predated both territorial and statehood Montana was supportive of the Flathead Nation’s off-reservation stream flow claims in Montana judicial decisions.
The DOI felt it was appropriate to address those claims as part of the Flathead Nation’s FRWRC, which would be ratified in the Montana Water Rights Protection Act.
Bernhardt also addressed concerns about the MWRPA’s impact on Flathead Indian Irrigation Project users and the state-tribal board that will administer water right claims under the act. He concluded that the DOI had gauged the concerns and criticisms of the FRWRC, and declared these concerns were addressed during the negotiation process.
The Act has the backing of the Trump Administration, the Department of Justice and the Department of Interior as well as many diverse agricultural groups in Montana. It also has opposition in Montana and nationally, much of it the kind of opposition that never dissipates when it comes to tribal issues perceived as beneficial to tribal people and detrimental to non-Indians.
The MWRPA still has a fairly long journey through the legislative process in the nation’s capital.
“The bill could take several different paths,” said Confederated Salish and Kootenai Tribes Legal Department attorney Ryan Rusche. “The next step is mark-up where amendments are made and the [Committee of Indian Affairs] votes on the bill which would advance it to the full Senate.”
If passed by the Senate, then it could directly to the House of Representatives, but that is not a guaranteed straight shot, Rusche said. The bill could go that direct route but it could potentially be included as a rider in another bill that could alter the direct route by taking the route of the bill it could be attached to.
If it passes HOR committee and full HOR hearings as a stand-alone bill or as a rider then it would be forwarded to the Trump Administration for the president’s okay.
Rusche said that along the legislative path there could be some amendments but would be consistent with what the Trump Administration attested to.
Addressing the local and national opposition to MWRPA Rusche said, “Recently the shrinking opposition has been pretty ineffective, focused on name calling members of Congress and the Administration.”
Rusche said the hopes are that the MWRPA could be passed soon. “We are working hard to get it done this year,” he said, adding that the $1.9 billion funding for the MWRPA is subject to annual appropriations.
Another major difference from other Indian Nation compacts in the state is the allocation of settlement funds. The $1.9 billion will be put into a trust fund account that the CSKT can invest and earn interest off of. That would allow the CSKT to earn a higher rate of return than if managed by the Secretary of Interior and dependent on yearly legislative allocations.
The funds may be used by the Tribes for more than a dozen different purposes relating to Tribal water rights. Some of those uses include the rehabilitation and modernization of the Flathead Indian Irrigation Project, including the Flathead Pumping Plant near Polson, mitigation of damages of past operations, providing for efficient water management and conservation, weed control, geothermal development, and community water system updates.
The bill would also authorize up to $10 million to be spent on road, bridge and culvert upgrades in Lake and Sanders counties within the footprint of the Irrigation Project.
The Tribal Council has directed the Legal Department to oversee the development of an employment plan for tribal members for the reconstruction of FIIP. They will work with various tribal departments to identify the skills and training needed for the reconstruction project that will employ an estimated 6,000 over the life of the project as well as jobs created by the reconstructed FIIP.
Also, the Tribes will manage the surface and subsurface water on the Flathead Reservation under the Unitary Management Ordinance.
The MWRPA requires the Unitary Management Board to cross-file water records with Montana DNRC and requires all meetings and proceedings open to the public.
S. 3019 would restore ownership of the National Bison Range to the Flathead Nation, and authorizes the process to restore the State school section lands on the Flathead Reservation by exchanging state lands with federal lands outside the Reservation.