PABLO — The Flathead Nations Federal Reserved Water Rights Compact, entitled the Montana Water Rights Protection Act in Senate Bill 3019, passed its final Senate Committee Indian Affairs Legislative Hearing with full consent, and will now be heard in the full Senate.
Senator Steve Daines, (R-Mont.) submitted the bipartisan S.3019 bill in the Senate Dec. 11, 2019; it was then referred to Senate Committee on Indian Affairs. Senate Senator Jon Tester (D-Mont.) co-sponsored. The first Senate Committee on Indian Affairs hearing was June 14, 2020 and the final one was on July 29.
“We are very thankful for Senator Daines’ hard work in tackling this century old dispute,” said CSKT Chairwoman Shelly R. Fyant. “Senator Daines’ bipartisan work will help protect water rights for all Montanans, Indian and Non-Indian alike, create jobs, provide critical water infrastructure projects, and restore fisheries and water quality. We are grateful for Senator Daines finally introducing legislation that can be signed into law.”
In his opening testimony to the Committee of Indian Affairs hearing Sen. 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.
“For decades, the CSKT water dispute has gone unresolved in Montana, leading to uncertainty for thousands of Montanans across our state,” Sen. Daines said in regards to the July 29 vote. “That's why I introduced the bipartisan Montana Water Rights Protection Act, which permanently settles the CSKT water dispute, protects the water rights of all Montanans, creates jobs, modernizes critical infrastructure needs in Northwestern Montana, protects Montana agriculture, avoids costly litigation and has the Trump administration’s support.”
“Today marked another big step forward for the CSKT Water Compact, and brings us even closer to providing the surety that water users in Montana desperately need,” Sen. Tester said. “This settlement has overwhelming support from all across the state and both sides of the aisle, and will prevent years of costly litigation while protecting our state’s most valuable resource. I urge Senator McConnell to put the Montana Water Rights Protection Act up for a vote as quickly as possible, so we can pass this historic legislation and give Montana water users certainty for generations to come.”
The 1855 Treaty of Hell Gate is the bedrock foundation the Flathead Nation stands on in its water rights claim as is the Western edict of “First in time, first in line.” The Treaty of Hell Gates’ right to fish at all usual and accustomed places article and historic documentation of where the Séliš, Ksanka and QÍispé tribal people exercised their time immemorial hunting, gathering, trapping and fishing rights established legal senior water rights claims. That includes the Kootenai, Flathead, Clarkfork, Yellowstone and Missouri rivers; drainages Montana. All other water rights claims, in those drainages, are secondary to the Flathead Nation’s. Passage of the MWRPA would prevent many years of litigation at an estimated cost of $1.3 billion.
Sen. Tester is on record saying that it would be impossible to beat the CSKT Treaty of Hell Gate and its time immemorial rights in the courts. A recent U.S. Supreme Court decision affirming the treaty rights of Indian Nations ownership of nearly half of Oklahoma further solidifies that treaties are the supreme law of the United States, as articulated in the U.S. Constitution.
“The [T]ribes have made claims to instream flow on all those rivers and all those tributaries and that has the potential to affect somewhere around 10,000 water rights in Montana that would come into question if we didn’t have this settlement and then all those people would have to go to court to defend their claims against the tribe,” John Youngberg, Montana Farm Bureau Federation executive vice president, told the Missoulian. The Farm Bureau has spent decades lobbying state and federal lawmakers to support a settlement. “The [T]ribes are saying that historically they used that water in those tributaries, in those streams. So, you have to prove the [T]ribes didn’t, which is nearly impossible.”
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 due to its $2.3 billion price tag or Sen. Daines backing due to that and other concerns of his.
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.
The MWRPA heretofore journey through the U.S. Congress has been well received by Confederated Salish and Kootenai Tribal Council.
“We are grateful for Senator Tester’s leadership and hard work in getting us to this moment in time. This legislation shows what can happen when we all work together,” said Tribal Council Chairwoman Shelly Fyant. “It will provide critical water infrastructure projects, create jobs, restore our fisheries and water quality, grow the economy, and enhance the Reservation’s natural landscape and ecosystem. We are grateful to Senator Tester for his years of hard work earning support among his colleagues for the Tribe’s Water Compact, and we look forward to finally seeing this important bill signed into law.”
If the bill passes full Senate hearing then it could directly to the House of Representatives, but that is not a guaranteed straight shot. 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 the House committee and full House hearings as a stand-alone bill or as a rider then it would be forwarded to the Trump Administration for the president’s okay.
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 allocates $1.9 billion in funds to be used to rehabilitate the Flathead Indian Irrigation Project to mitigate the damages of past operation and to provide for efficient water management and conservation, as well as mitigate off-reservation damages to natural resources. It will also upgrade the Flathead River pumping station near Polson.
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.
The National Bison Range would be returned to the Flathead Nation as would the State school section lands on the reservation.
It provides $10 million in road infrastructure funds to Lake and Sanders Counties.