ZOOMVILLE — The Confederated Salish and Kootenai Tribes Spring Quarterly meeting was like quarterlies have been for the last year, conducted under the shadow of COVID-19. Last year’s Spring Quarterly was the first such meeting held via Facebook and Zoom. This year the only difference from last spring was the presence of the Yamncut Drum, that was on-hand for the Flag and Honor songs.
It was a light agenda that focused on the Flathead Nation’s Federal Reserved Water Rights Compact (FRWRC) Settlement, and its inclusion of the restoration of the National Bison Range under the auspices of the Montana Water Rights Protection Act (MWRPA).
National Bison Range
Perhaps the ultimate coveted symbol of the Flathead Nations water rights settlement is the restoration of the National Bison Range (NBR) property to the CSKT as well as the management of the NBR.
Manager of the Natural Resource Department Fish, Wildlife, Recreation and Conservation Division Tom McDonald said he was shocked with the January 15, 2021 announcement by then-Secretary of the Department of Interior (DOI) David Bernhardt, that he directed the U.S. Fish and Wildlife Service and the Bureau of Land Management to facilitate the transfer of the more than 18,000-acre NBR property to the Bureau of Indian Affairs to be held in trust for the CSKT. Beyond the trust restoration, the management reins were also handed over to the Flathead Nation as part of the historic settlement of its FRWRC. The NBR acreage is now — once again — a part of the Flathead Indian Reservation after 113 years. As a result the purple swath of land that signifies the NBR on the CSKT’s Flathead Reservation maps will from now on be green to signify Flathead Nation land — a bit of eye candy for the heart.
“The CSKT have strong and deep historical, geographic and cultural ties to the land and the bison, and their environmental professionals have been leaders in natural resources and wildlife management for many decades,” said Assistant Secretary Tara Katuk Sweeney in a related press release at the time. “Interior is pleased to continue its partnership and work with them on the restoration of the NBR to federal trust ownership for the Tribes.”
The FRWRC settlement put the end to a long and saddened chapter in the history of the Salish, Pend d’Oreille and Kootenai people that began in 1908 when President Theodore Roosevelt established the NBR on Flathead Reservation land against the will of the CSKT.
In some poetic what-goes-around-comes-around coincidental justice, in 1908 the U.S. Supreme Court ruled in the Winters v. U.S. case that when the federal government created an Indian reservation — in this case the Fort Belknap Reservation — it included reserved rights to sufficient water to fulfill the purposes of the reservation. That ruling became known as the Winters Doctrine and it established what is known as Federal Reserved Water Rights that applies to all Indian reservations and other federal property such as military bases, U.S. Forest Service, National Park Service, and Bureau of Land Management. It was the Flathead Nation’s FRWR Compact that eventually returned the NBR property, et al to the CSKT.
“This has been an ongoing effort, that began in the early 1980s,” McDonald said about the modern quest for restoration of the NBR land as well as the management of NBR to the CSKT.
Heretofore, the closest the CSKT got was managing the NBR was some a pair of co-management Annual Funding Agreements with the U.S. Fish and Wildlife Service (USFWS) but both went off the rails, the first AFA in 2005 was terminated in December 2006. The CSKT appealed the decision a month later alleging that the USFWS had not notified the CSKT about the AFA termination nor given them the opportunity to respond to the allegations. A second AFA draft was submitted in May 2007 after involvement by the Department of Interior and prolonged negotiations it was signed in June 2008. However, in 2010 a suit that alleged the AFA was not valid because it didn’t conduct a National Environmental Policy Act (NEPA) as well as the National Wildlife Refuge System Administration Act of 1966. The court ruled that the AFA was a violation of NEPA. As result of the suit, the CSKT and USFWS conducted negotiations for another AFA that included a clause to address the NEPA requirements and a draft AFA was submitted in September 2014 and has been collecting dust since.
Once the settlement was announced the wheels of transfer of the NBR began. Since January, the CSKT Legal Department, the DOI and the USFWS have been meeting to facilitate the legalities related to the transfer of the NBR land, buildings and equipment to the CSKT.
“It is a two-year process, but we are trying to expediate that,” McDonald said, adding that hopes are to get the transfer legalities settled by January 1, 2022, a year ahead of the two-year bureaucratic timeline.
In the meantime, the NBR has become under the management wings of the Natural Resource Department. It is presently writing job descriptions for the estimated 14 to 20 employment opportunities that will be created by restoration of the NBR. McDonald said that the new positions would focus on people in the field and not so much on administrative as present NRD staff would have some administrative oversight at the Bison Range.
McDonald said the public would not see too much change in the CSKT management of the NBR — federal law requires that it must remain open to the public. There will be signage changes that reflect the tribal cultural perspective on environmental stewardship. However, the federal senior citizen pass to enter federal parks and reserves will not be applicable at the NBR.
“Our goal is to make the National Bison Range the best wildlife park in the country,” McDonald said. Approximately 200,000 people visit the NBR each year. “The basic operations will remain the same for now.”
NRD Public Education officer Steph Gillin said work presently in process at the NBR includes the informational signage and flyers, and rehabilitation work on the visitor center that opened in 1982.
“There is a big push for a Mother’s Day (May 9) reopening,” Gillin said. “We are trying to get as much done as we can before the reopening but work will continue throughout the summer.”
Water Rights Settlement
The past winter holiday season resulted in a gift for the CSKT that will keep on giving from now to eternity.
On December 21, 2020, the U.S. Congress signed off on SB 3019, the Montana Water Rights Protection Act; on Dec. 27, the president signed the Consolidated Appropriations Act that funds the government and included the provisions of the MWRPA; and, on Dec. 29, the Flathead Nation ratified the MWRPA. All that’s left is the formality of the Montana Water Court signage of the final decree of the MWRPA which has to be done within six months of the ratification or by June at the latest.
Once that duck is in the row, there is an anticipation of a formal water rights compact ceremony. However, there is another big duck in the room, and that is COVID-19.
CSKT Legal Department attorney Ryan Rusche said, due to COVID-19, there will not, at this time, be a public ceremony related to the historic — we cannot over emphasize historic — accomplishment. However, the Tribal Council is monitoring the COVID situation, and there are hopes that a quelling of the virus would allow for a safe public celebratory gathering.
The key elements of the settlement are: the ratification of the Flathead Nation’s Federal Reserved Water Rights Compact and the Unitary Management Ordinance, and includes restoration of the National Bison Range to the CSKT; rehabilitation of the Flathead Indian Irrigation Project; authorization of a process for restoration of State school trust lands on the Flathead Reservation. In exchange the CSKT will convey to the State CSKT co-ownership of State rights in the upper Flathead River Basin; there isn’t any Department of Interior Secretary funding.
Rusche said the federal settlement monetary amount of $1.9 billion, the largest water rights settlement in the history of Tribal Nation FRWRCs. All of the Federal fund contribution of $1.9 billion will be deposited in a CSKT Trust Account under the American Indian Trust Fund Management Reform Act of 1994 (AITFMMRA).
Nearly half — $900 million — of the settlement funding will be dispensed at $90 million per year for the next 10 years and will be deposited in the CSKT AITFMMRA. Those funds will be used for implementation of the compact settlement that includes registration of water usage, adjudication of water rights, and administration; and rehabilitation of the Flathead Indian Irrigation Project.
Rusche said the CSKT are in the early stages of the process of working with the President Biden Administration on getting the remaining $1 billion appropriation into its AITFMMRA. “We are advocating for this sooner rather than later,” he said, adding that the settlement act can’t become functional until the full budget is appropriated to address the other components in the settlement, he added.
Among the other settlement components are, but not limited to: livestock fencing of reservation waterways; mitigation and control of noxious weeds; development of a cultural resources program relating to permitting; and, development of geothermal water resources on Indian land within the Flathead Reservation. (See Authorized Uses of Settlement Trust Fund sidebar)
NRD hydrologist Seth Makepeace said the rehabilitation of FIIP would decrease its dehydration of the rivers and streams of the Flathead Reservation. As a result of an improved FIIP water delivery infrastructure and better water management there would be more water left in reservation waterways for fisheries.
To that end, the CSKT have already been working on pre-settlement FIIP improvement projects. The rehabilitation projects, include, the Flathead River Pumping Plant near Polson; the Valley View District Drop near Polson; the Falls Creek headworks and the K-Canal headworks in the Jocko District.
The FIIP rehabilitation plans for the first year of settlement funding, includes: the North Fork Jocko feeder canal, the Jocko Valley pipelines and the Lower J-Canal headworks just west of Ravalli, all in the Jocko Irrigation District; and, the Charlo Planning Area to address management of irrigation water return flows into reservation waterways.
That is just beginning of the new chapter of the history of the Salish, Pend d’Oreille and Kootenai people. Perhaps the chapter title should be: “Patience, Persistence, Rhonda Swaney and John Carter.”