Legal Department provides overview of the Flathead Nation FRWR Compact
Char-Koosta News
PABLO — It ain’t over, till it’s over. The words of the late-baseball sage, Yogi Berra casts a faint shadow over the Flathead Nation Federal Reserved Water Rights Compact, entitled the Montana Water Rights Protection Act that was recently introduced in the U.S. Senate by Senator Steve Daines (R-Mont.) The federal legislation was co-sponsored by Senator Jon Tester (D-Mont.).
The bill is now in the Senate awaiting its passage, then it’s off to the U.S. House of Representatives. Once both Houses of Congress ratify the bill then it will be forwarded to the Confederated Salish and Kootenai Tribes Tribal Council for its ratification.
It’s as close to a sure bet as a sure bet can be but even a champion thoroughbred can break a leg down the homestretch. In this case the thoroughbred of a mutually agreeable FRWRC agreement could be tripped up by the turbulent political winds that have settled over Washington, DC. However, even among the turbulence the bill has garnered the backing of the Trump
Administration, the Department of Justice and the Department of Interior. There is no obligation for additional state approval. But it will only be over when the Flathead Nation’s governing body puts its John Hancock on the last signatory line.
The CSKT Legal Department conducted an informational presentation last week at Salish Kootenai College about the Montana Water Rights Protection Act bill. It went over the highlights of the bill that ratifies the Flathead Nation’s Federal Reserved Water Rights Compact that confirms, quantifies and codifies the CSKT’s water rights. It includes the Unitary Administration and Management Ordinance that will provide the framework for water management on the Flathead Indian Reservation.
It provides for the reconstruction of the Flathead Indian Irrigation Project, the quantification lynchpin of the Flathead Nation’s FRWR Compact, and a historical surprise for many and a hysterical reaction from others, the restoration of the National Bison Range back to Tribal ownership and management.
It also provides for $1.9 billion to achieve the ends articulated in the MWRP Act. Legal Department Attorney Ryan Rusche said the Flathead Nation was unique for a pair of reasons. Number one is the 1855 Treaty of Hell Gate that recognized the Salish, Pend d’Oreille and Kootenai Tribes time immemorial on- and off-Flathead Reservation rights to hunt, fish, trap and gather in non-fee or federal lands in aboriginal territory — a wide swath that encompasses much of western Montana and across the Continental Divide in the eastern Montana prairies, think the Yellowstone bison hunt.
Also, the FRWR Compact settlement not only articulates and quantifies the CSKT water rights it provides for the monetary settlement within the bill. The other six tribal water rights compact claims provided the quantification framework but not the final monetary amounts in those compact bills. Those were negotiated later under the framework of the federal criteria and procedures.
Rusche said the Flathead Nation did the monetary legwork—drafting a comprehensive, multi-volume assessment of the Tribes’ water related claims against the federal government--prior so the amount would be part of the FRWR Compact in the MWRP Act bill. He credited the Natural Resource Department water, wildlife and fisheries experts for their input as well as the Salish, Pend d’Oreille and Kootenai Culture Committees for their input and the expertise of Legal Department attorneys. All that provided the Tribes with heavy ammo in its legal argument arsenal it put forth in the compact language.
“This is the most comprehensive tribal damages claim ever submitted to the federal government,” Rusche said, with a tip of the hat to Legal Department Attorney John Carter, who has, among other things, successfully argued CSKT water rights issues in state and federal courts, administrative courts, and the U.S Supreme Court[RR1]. “There was a lot of hard work done to chronicle the Tribes’ claims. We were told straight-up that we weren’t going to get our claim… The Obama Administration told us that it ($2.3 billion opening offer) was a non-starter.”
However, the Trump Administration, and then-Secretary of Interior Ryan Zinke, and DOI Tribal Water Rights Working Group Chairman Allen Mikkelsen, as well as backing of several Montana agricultural groups got the wheels greased in the effort to get a mutually beneficial CSKT water rights settlement on paper.
“Last December the Working Group agreed on the $1.9 billion bill to rehabilitate the Flathead Indian Irrigation Project,” Rusche said. “Following their vote, they took it to the OMB (Office of Management and Budget). The Department of Interior and the Department of Justice agreed with those numbers jointly. OMB is another story, which isn’t required to give a thumbs up or down on the final price tag until the bill is heard. We also had to have both Tester and Daines on board. If we didn’t come with the new numbers Sen. Daines would not be with us. That and some key elements of the Montana Water Rights Protection Act [eventually convinced Sen. Daines to introduce the MWRP Act bill].”
When it comes to the issue of per capita distribution, Rusche advised that hopes of that will not come to fruition because Sen. Daines would not agree to that to be a part of the MWRP Act bill.
“… per capita [payments] have not been allowed under the settlement criteria for decades,” Rusche said.
Rusche described the $1.9 billion settlement to restore tribal natural resources and to rehabilitate and modernize the Flathead Indian Irrigation Project as a “jobs bill” that will benefit local, state and regional construction economies and would create 6,000 jobs over the life of the project.
The MWRP Act bill now is in the hands of the U.S. Congress. Yogi’s shadow looks very, very faint. But in the final accounting it ain’t over, till it’s over.
Key elements of the Flathead Nation Federal Reserved Water Rights Compact under the Montana Water Rights Protection Act.
The MWRP Act’s purpose is the achievement of fair, equitable and final settlement of water rights claims in Montana with recognition of the Montana State Constitution’s acknowledgement of federal reserved water rights compacts. The Act authorizes the funds to carry out the implementation of the Confederated Salish and Kootenai Tribes Federal Reserved Water Rights Compact.
The Montana Water Rights Protection Act ratifies and confirms the Flathead Nation’s Federal Reserved Water Rights Compact and the Unitary Administration and Management Ordinance that quantifies and codifies the CSKT’s water rights and administration and management thereof.
Once the U.S. Congress ratifies the Act there is no further obligation for additional approval from the State of Montana. The Flathead Nation would then sign off on the Act then it will be implemented.
Flathead Nation Federal Reserved Water Rights Compact Funding
The $1.9 billion federal contribution to fulfill the requirements of the FRWR Compact settlement will be deposited in a Tribal Trust Account under the auspices of the American Indian Trust Fund Management Reform Act of 1994. As a result of the Act, the Office of Special Trustee for American Indians was created to improve the accountability and management of Indian funds held in trust by the federal government.
The $1.9 billion settlement funds will be deposited, managed, invested and distributed by the Secretary of Interior under the auspices of the newly established Seli’? Qlispe’ Ksanka Settlement Trust Fund account.
The Tribes may withdraw any portions of the funds in the Seli’? Qlispe’ Ksanka Settlement Trust Fund account related to the provisions of the Act with the approval of the Secretary of Interior.
• Authorized uses of the Confederated Salish and Kootenai Tribes Federal Reserved Water Rights Compact trust funds:
* The Flathead Indian Irrigation Project, rehabilitation, modernization and restoration/mitigation of damages to natural resources incurred by FIIP construction and management.
* The administration, implementation and management of the CSKT Water Right as well as the regulation and administration of water rights within the Flathead Indian Reservation relative to the Act, the FRWR Compact and the applicable Administrative Law, and such infrastructure as is necessary to meet programmatic needs.
* The acquisition of interests in real property for purposes of paragraph one above.
* To implement the Tribal Water Right through rehabilitation and improvement of agricultural Indian land within the Reservation.
* To construct and rehabilitate livestock fencing on Indian land within the Reservation.
* To mitigate and control noxious weeds on land within the Reservation.
* To plan, design and construct improvements to irrigation systems on land served by the Flathead Indian Irrigation Project.
* To install screens, barriers, passages or ladders to prevent fish entrainment in irrigation ditches and canals within the Reservation.
* To plan, design and construct irrigation facilities on Indian land within the Reservation that is not served by the FIIP.
* To plan, design, construct, operate, maintain and replace community water distribution and wastewater treatment facilities on the Reservation.
* To develop geothermal water resources on Indian land within the Reservation.
* To develop a cultural resources program relating to permitting (including cultural, historical, and archeological reviews, including training and certifications) and related infrastructure necessary to meet programmatic needs.
* To comply with Federal environmental laws for any use authorized by this section.
* To repair, rehabilitate or replace culverts, bridges and roads of FIIP and any public or Tribal culverts, bridges and roads that intersect with or are otherwise located within, the supply and distribution network of FIIP.
State School Trust Land Exchange
The Act provides for the return of 36,800 acres of State of Montana school trust land on the Flathead Indian Reservation to ownership of the United States to be held in trust for the CSKT. The State will be able to acquire the same amount of acreage off the Reservation in federal land holdings. The Secretary of the Interior will negotiate with the State of Montana for the exchange of land equal to the surface land value on the Reservation. The United States will own the land in trust for the CSKT.
Hungry Horse Reservoir
The Act provides for the allocation of 90,000 acre-feet a year from the Hungry Horse Reservoir, as measured at Hungry Horse Dam. It can be used by the CSKT for any beneficial purpose on and off the Flathead Indian Reservation under a water right held by the United States and managed by the Bureau of Reclamation — it is considered a tribal water right.
The CSKT must confer and enter into an agreement with the Secretary of the Interior to establish the terms and conditions of the allocation, per mandates of the MWRP Act and Tribes FRWR Compact.
The CSKT must pay proportional storage costs rates annually to cover the expense of operation, maintenance and replacement costs to the Hungry Horse Project.
In the area of mitigation water, the CSKT shall make available 11,000 acre-feet of Hungry Horse Reservoir water to the state for its beneficial use off the Reservation.
Flathead Indian Irrigation Project
The Act provides for the rehabilitation and modernization of the entirety of the Flathead Indian Irrigation Project’s physical plant including numerous structures, canals, and pumping facilities, as well as dam safety improvements and irrigation facilities with the goal to improve water management.
There will also be mitigation, reclamation and restoration of streams, wetlands, banks, slopes and waterways negatively affected by FIIP operations. To that end provisions are made to acquire necessary property to carry out the aforementioned restoration activities. All the construction activities will be done with compliance to environmental regulations.
The Act lays out the groundwork for an agreement between the Tribes and the various irrigation districts for cooperative operation and maintenance of FIIP or any portion of it, depending on the districts entering into the agreement. Nothing in the section alters applicable laws related to the Bureau of Indian Affairs collects assessments or carries out the operation and maintenance of FIIP.
National Bison Range
The MWRPA includes the restoration of the 18,500 acres of the National Bison Range land to the federal government, to be held in trust for the Confederated Salish and Kootenai Tribes whom will assume its administration and management, including its natural flora and fauna resources, and ownership of the physical plant.
The Act states: “The United States should hold title in and to the land comprising the National Bison Range, with beneficial title of the land being restored to the Tribes for — continued bison conservation; other wildlife and natural resources purposes; and other non-conflicting purposes of the Tribes.
“The United States relinquishes to the Tribes all interests of the United States in the bison on the land restored... “
The Act cites numerous historical background facts of how the NBR, in the heart of the Flathead Indian Reservation, was established under protest from the CSKT that viewed it as an illegal taking of tribal land and resources.
It cites the Tribes’ present-day examples of extensive wildlife and natural resources management accomplishments, and its numerous partnerships to those ends with federal and state agencies.
The Act severs U.S. Fish and Wildlife control of NBR ownership or control of any real or personal property unless the CSKT agree to any in writing.
The Act ensures continued public access and educational opportunities, as well as public access, at all times, to the Tribes’ NBR management plan.
The Tribes will not be held liable for any land, soil, surface and subsurface, or other types of contamination, injury or damage resulting from the storage, disposal, release or presence of any hazardous substance, according to federal environmental laws, on any portion of the restored NBR land resulting prior to and on the date of transfer, unless they were responsible for its presence.
Miscellaneous Information
• The Tribes will convey to the state Tribal co-ownership of the Murphy rights in the upper Flathead Basin. Murphy rights are related to instream flows necessary for fisheries.
• With respect to the National Bison Range restoration to Tribal ownership, there will be a two-year transition period, beginning with the date of the Act’s implementation, during which the U.S. Fish & Wildlife Service will work with the Tribes to ensure a smooth transition to Tribal management.
The Settlement Act:
• Confirms a use of 1855 Tribal water right for the massive Flathead Indian Irrigation Project (FIIP) for the benefit of Indian and non-Indian irrigators.
• Quantifies the Tribes aboriginal and reserved water rights through negotiation thus avoiding litigation.
• Recognizes CSKT instream flow rights on and off the Reservation.
• Resolves the complex regulatory scenario on the Flathead Reservation where most water originates on Tribal lands, flows across non-Indian lands, then returns to Tribal lands via the Unitary Administration and Management Ordinance.
• Provides for $55 million state contribution for irrigation, infrastructure and in-stream flows.
• Establishes modern, science-based irrigation water allocation for the FIIP.• Prohibits the sale of water out of the State of Montana
• Provides for reasonable transition to local management of the FIIP and attainment of federal Endangered Species Act obligations arising from the FIIP.
• Protects fish and wildlife habitat across western Montana; confirming the CSKT instream flows where members have historically fished and hunted.
• Protects existing Tribal uses, including traditional Tribal cultural and religious uses.
• Establishes a process to permit new uses such as domestic, stock, wetlands, municipal, hydropower, industrial, commercial, and agricultural uses.
• Protects valid existing uses as decreed by the Water Court or permitted by the DNRC prior to 1996.
• Provides legal protection for post-1996 domestic wells and permits that are currently in limbo.
• Establishes a process to permit new uses such as domestic, stock, wetlands, municipal, hydropower, industrial, commercial, and agricultural uses.• Adheres to Montanans’ due process by giving them access to state courts over water disputes between tribal and non-tribal members
• Provides $10 million in road infrastructure funds to Lake and Sanders counties — $5 million to each county.
• Requires the Unitary Management Board to cross-file water records with Montana Department of Natural Resources and Conservation and requires all meetings and proceedings open to the public.
• Prohibits establishment of any forms of gaming/gambling activities on the NBR.
• Doesn’t authorize the distribution of per capita payments to enrolled tribal members.
For more information, contact:
Rob McDonald, Communications Director, Confederated Salish and Kootenai Tribes (406) 675-2700 ext. 1222
For copies of the CSKT Compact and Ordinance and more information visit:
Montana: http://www.dnrc.mt.gov/rwrcc/Compacts/CSKT/Default.asp
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