ST. IGNATIUS — The Holy Grail of water rights is 'first in time' equates to 'first in line.' In May of 1968 a couple of men excavating an escarpment for gravel near the Flathead Creek — how poetic — in the Shields Valley near White Sulfur Springs unearthed stone and bone tools. Then with curiosity-digging they unearthed the remains of a one- to two-year-old child, and then remains of a six- to eight-year-old child. Archeologists eventually dated the artifacts and human remains to be around 13,000 years old. DNA tests conducted on the remains revealed that they were not Caucasian. Doubtless is the fact that the non-Caucasians from more than 600 generations ago needed water. That time span is what’s referred to by pre-America Americans — the tribal people — as a major tick in the time immemorial clock. How many ticks tocked between that time and when Lewis and Clark rowed into Montana in 1805 takes a whole lotta' fingers to calculate. However, in the water adjudication legal sense all that mattered was the last one before the Corps of Discovery set foot in this part of the Louisiana Purchase that eventually became Montana in 1889. Second in time, second in line. In baseball parlance it’s like having Babe Ruth up to bat on offence and Sandy Koufax on the mound on defense.
Last week the latest of the Flathead Nations Federal Reserved Water Rights Compact informative district meeting tours took stage in St. Ignatius. It was hosted by St. Ignatius District Representatives D. Fred Matt, now an Elder statesman and Ellie Bundy McLeod, a youthful stateswoman.
Tribal Legal Department Director Rhonda Swaney and attorney Ryan Rusche updated the 20 or so attendees of the Montana Water Rights Protection Act co-sponsored by Senator Steve Daines (R-Mont.) and Senator Jon Tester (R-Mont.) that was recently introduced in the U.S. Senate by Daines. The bottom line, they agreed on was that the MWRPA was as good as it was going to get, and that the good was not bad by any stretch of the imagination.
For one the July 16, 1855 Treaty of Hell Gate acknowledged the time immemorial rights of the Salish, Pend d’Oreille and Kootenai tribal people in much of western Montana and onto its plains. Those ancient rights include the rights hunt, fish, gather and trap in Aboriginal territorial homelands. The key is the water for fisheries, for their sustenance as well as tribal human substance.
Rusche said the treaty-based off-Flathead Reservation rights are the differences that buttress the Flathead Nation FRWR Compact claims. The other Montana tribal nation treaties do not acknowledge off-Indian reservation rights even though like the Flathead Nation tribes they had similar wide swaths of territory from the Rocky Mountains eastward on the plains into the Dakotas and Wyoming as well as in to what is now Canada.
Another difference was the location of the Flathead Reservation. Rusche said all the other FRWR Compacts with tribal nations reservations in Montana had waterways as borders, consequently the waterways did not spring from water on their reservations.
Not so on the Flathead Reservations where water for creeks and rivers flow from waters of the high mountain lakes in the Mission Mountains, and from waters in Flathead Lake held in trust by the federal government. The latter ownership was reaffirmed by the 1982 U.S. Supreme Court decision on the CSKT v the City of Polson, often referred to as the Namen Decision. It held that by virtue of the 1855 Treaty of Hell Gate the title to the bed and banks of the south half of Flathead Lake was retained by the United States as trustee for respondent Flathead Nation, rather than passing to the State of Montana when it gained statehood in 1889. The defendant marina owner James M. Namen built and operated a marina on the land and had erected and maintained docks, wharves, a breakwater, and a storage shed that extended beyond the high-water of Flathead Lake onto land the Flathead Nation said was owned by them. The CSKT maintained Namen was trespassing onto tribal land and sought legal remedies in court. The USSC reaffirmed the Tribes’ claims.
Through the years the Flathead Nation has won many water rights battles in the district, state and federal court systems.
The Department of Justice, the Department of Interior and the Trump Administration have assessed the Flathead Nation’s FRWR Compact and support it. Attorney General William Barr recently stated that the Flathead Nation would win any arbitration of the issue in courts.
Swaney said the Tribes have already gone through many years of negotiations and have come up with the best solution available to the Flathead Nation and don’t want to litigate. The best solution includes, among many other things, unitary management of reservation surface and subsurface water, 90,000 acre-feet of water from Hungry Horse Reservoir that can be used to supplant water from the high waterbodies that then can be used for instream flows, and restoration of natural flows of waterways damaged by the operation of the Flathead Indian Irrigation Project. Also, water management on the reservation would be conducted by a five-member co-management entity comprised of two tribal representatives, two local non-tribal representatives and one chosen by the governor of Montana.
And the National Bison Range would be returned to the Flathead Nation as would the State school section lands on the reservation. The latter through a negotiation process among the Tribes, the State of Montana and federal government.
Maybe that could include the return of Big Medicine.