Officials eye water pact for 2009

Negotiations over Tribal water rights continued last week at a public meeting at SKC, and the state's Water Rights chairman hopes to have an agreement in place to present to the 2009 Legislature.

Many of those in attendance, both Indian and non-Indian, lamented the fact that nothing new came out of last week's meeting, except an agreement from both sides that the negotiations were taking too long.

Montana Reserved Water Rights Commission chairman Chris Tweeten announced that an agreement has been reached with the Blackfeet Tribe and that another agreement may be forthcoming with the Crow Tribe, as well. The Commission hopes to take those agreements before the federal Legislature during the 2009 legislative session.

The Commission also hopes that a settlement can be reached with the Salish, Kootenai and Pend d'Oreille sometime next year, so that it too can be brought before the 2009 legislative session.

Duane Mecham, an attorney for the U.S. Department of the Interior, said the agreed upon goal for the negotiations is to have key components in play by next summer so that making the 2009 Legislature will be a viable course of action.

In response to questions about why the commission is looking at Hungry Horse Reservoir as a secondary water source for the negotiations, Mecham said that a secondary source is needed as a backup and that since Hungry Horse is a federal reservoir it "lent itself as a worthy source for exploration."

Mecham did, however, explain that the exploration of Hungry Horse Reservoir as a secondary source was not to preclude any other source.

Northwest Montana Association of Realtors government affairs director George Culpepper also attended last Wednesday's public negotiation meeting and briefly addressed the Commission during the public comment period. Culpepper urged the Commission to take their time with the negotiations and be careful to "do it right," stating that with something as significant as water rights is to homeowners in the Flathead an agreement must benefit all Montanans.

"Whatever happens here will affect the rest of the country," Culpepper said. "We will support negotiations as long as it benefits the interest of all Montanans and doesn't negatively effect the homeowners."

However, extending negotiations still leaves many residents in a legal limbo. One Flathead resident expressed his belief that, until an agreement has been reached, no homeowner's rights are certain.

CSKT Natural Resources Department head Clayton Matt concluded that establishing a unitary system of managing water on the reservation will solve many of the problems about which both Indians and non-Indians on the Flathead Reservation are concerned.

"We want to achieve a unitary water administration system on the Reservation," Matt said. "We think it is in everybody's best interest."

Matt said that the original water rights proposal presented to the Montana Reserved Water Rights Commission in 2001 states the Tribes' intentions and that little has changed.

That proposal states: "In lieu of previous approaches to Indian reserved water rights negotiations between Tribes and the State of Montana, we respectfully propose the following alternative approach. We propose that the focus of negotiations be the development of a Reservation-wide Tribal water administration ordinance, which guarantees due process and equal protection under a prior appropriation system to all people who use water on the Flathead Indian Reservation. Fundamental to this approach is our assertion that all water on the Reservation is Tribal."

The proposal asserts that, since water is a unitary resource and the hydrologic cycle a unitary system, the unitary management and administration of all water on and below the Flathead Indian Reservation would be "a logical and pragmatic use of limited resources." However, it assures that "non-Indian claimants to Reservation waters shall be afforded protections equal to those available off the Reservation."

Several points are set forth in the proposal, upon which it stresses that the Tribes and the Montana Reserved Water Rights Compact Commission must agree as being crucial to the negotiation process. The first point states that, "all water on and under the Flathead Indian Reservation is owned by the United States in trust for the Confederated Salish and Kootenai Tribes," a certainty which the Tribes claim is supported by both State and Federal law.

The proposal points out that the Tribal claim to ownership of "all waters on and under the Flathead Indian Reservation" is based on the Treaty of Hellgate, as well as a long history of case law—both State and Federal—and treatise.

The second point states that the negotiation process should focus on the development of a Reservation-wide Tribal water administration ordinance based on the seniority system and designed to protect the federal Indian reserved and aboriginal water rights. While this may sound intimidating to non-Indian residents, the proposal stresses that such an administration would protect more water uses for more people and also create greater opportunities for future uses, not to mention greater resource management.

That the Tribes would be able to administer such a system fairly, the proposal asserts, is evident by the fact that the Tribes "regularly exercise Reservation-wide jurisdiction and authority over Indians and non-Indians on the Flathead Reservation, in a manner that has been fair to all and proven to satisfy due process concerns."

Some examples, which are outlined in the Tribe's proposal, include the operation of the Reservation-wide electric power distribution system, Mission Valley Power, through boards consisting of both Indians and non-Indians. The same is true of the Shoreline Protection Office and Shoreline Protection Board, which is also made up of both Indians and non-Indians.

The Tribes additionally manage fish and wildlife resources through the Reservation Fish and Wildlife Advisory Board, which is comprised of Tribal representatives and representatives of the State and U.S. Fish and Wildlife Service. What's more, the Tribal Natural Resources Department's Tribal Water Quality Program functions as the sole administrator of surface water quality standards for the Reservation.

More recently, the Tribes granted the Big Arm Association permission to connect to the Tribal water line as well as to install a septic system on Tribal land, and granted them a 25-year renewable Tribal land lease for the Big Arm Fire Hall. Tribal members and representatives helped the Association lay 400 ft. of pipe to complete the project, last October, which they indicated to be a gesture of the Tribes' willingness to work the community.