Pressure mounting in water rights negotiations

By Jennifer McBride / Leader Staff

The heat is on for the state, federal and tribal governments who have squared off over the reservation's water rights in a series of monthly meetings.

A June 2009 deadline, imposed by the 1979 Montana Reserved Water Rights Compact Commission's mandate, looms over the negotiating table. The governor's office opposed a deadline extension the Confederated Salish-Kootenai Tribes requested and the extension request died in committee.

"Let me tell you, everyone in this room, the pressure is on," said Tribal Chairman James Steele, Jr. in his opening statement at the latest water rights meeting last Friday. Approximately 4,000 people have already filed claims to water rights on the Flathead Reservation. The potential of lawsuits, he explained, was a strong motivation. Thirty years after water rights negotiations collapsed in Wyoming, claimants are still fighting legal battles.

"I think if you really want to know what will happen if we don't reach a settlement, you can look at Wyoming," Steele said. "If we do not come to a negotiated settlement, I think everyone in the room who has a water rights claim needs to find an attorney."

In an attempt to move negotiations forward, the CSKT have proposed a new, unitary governing board, which includes Tribal, federal and state representatives in the water rights administration. However, many people who spoke in the packed meeting argued against the plan. The next water rights meeting is slated for March 12 at the KwaTaqNuk at 9 a.m.

"It's our water. It's our watershed. Why are we negotiating our rights?" said Bearhead Swaney during the public comment stage. "We've tried to compromise and negotiate before. Every time we lose…We've lost from 1855 on."

The history of water rights on the reservation

Steele began his speech with text from the 1855 Hellgate Treaty, which set the reservation aside for Tribal use.

"The reservation was set aside for the Salish, Kootenai and Pend d'Oreille people. I'm not trying to throw that in anyone's face. That is a fact," Steele said.

He read the speech in the historical context of a 1908 Supreme Court ruling on Indian water rights. According to documents distributed at the meeting, in the 19th century, homesteaders in central Montana used the Milk River to irrigate their crops, reducing its flow to the Fort Belknap Indian Reservation. The resulting lawsuit, Winters v. United States, stated that the Supreme Court ruled that Congress would not have established the Indian reservation without meaning to offer its residents enough water to survive, said CSKT spokesperson Rob McDonald. According to him, the courts have ruled that even if the Tribal residents don't use the water, they do not lose the right to it. Tribal claims, he said, thus precede the claims of farmers and ranchers who have been using the water for the past century.

Since Winters the state has passed the Montana Water Use Act of 1973, which started nailing down water rights claimed prior to the act's passage and also established a process for obtaining new permits, McDonald said. According to him, in 1979, the Montana state Legislature then authorized creating the Montana Reserved Water Rights Compact Commission. Since then, he said, the commission has helped negotiate water rights on dozens of difficult cases, including proposals for six of Montana's seven Indian reservations.

At the meeting, officials said that negotiations have been continuing intermittently since the 1980s. The commission rejected a 2001 Tribal proposal stating as its first tenet 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." The 2001 proposal is archived on the website www.water-rights.org

Removing the provision from their current proposal has helped negotiations go forward again, but it drew public protest from Tribal members at the meeting who thought the Tribal government had surrender too much of its rights.

The unitary government proposal

In an attempt to meet the state-imposed deadline, the Tribes presented their own proposal for a system of unitary management — joint operation by a committee composed of Tribal, federal and state appointees — last December. The plan recommends establishing a Flathead Indian Reservation Water Management Board made up of five members: two appointed by the state, two appointed by the Tribes and one appointed by the federal government.

Steele said he was disappointed by the state government's lukewarm reaction to the Tribes' suggestion.

"We need to step back and really hear each other," Steele said.

He tried to reassure non-Tribal members that the Tribal proposal wouldn't hurt non-Tribal interests.

"Let me very bluntly say that the Indians are not out to get you," Steele told the mixed Tribal and non-Tribal audience. Steele pointed to Mission Valley Power as proof that Tribal administration is good administration.

"If Indians were out to get you, I don't think you'd get power cheaply. I don't think you'd get the great collaboration between Tribal and non-Tribal law enforcement officials," he said.

The commission's state-appointed representatives said they appreciated all the work that went into the CSKT proposal and hoped they would have a response ready for the next water rights meeting in March.

Clayton Matt, the meeting moderator and head of the CSKT Natural Resources Department, reminded the commission members that the outline they presented was not chiseled in stone.

"It's not a take-it or leave-it proposal," he said.

Because the plan deals in broad policy, not details, Rhonda Swaney, CSKT Natural Resource Officer, said she wouldn't be able to say how the unitary administration would affect particular individuals.

"We're talking process right now," she said. "If you want know how this will specifically affect you, I can't tell you that yet."

The members of the commission also discussed several technical details at the water rights meeting, including definitions of shared shortage and appointments to a joint scientific team which will help determine a fair division of the water resources between the valley's fisheries, irrigators and home owners. The commission is also working on digitizing the data on current water use, though the information collection may or may not be affected by federal privacy laws.

The public reaction to the Tribal proposal was mixed. Several Tribal members spoke about their frustration that the proposal didn't include the 2001 provision which reserved the water rights for the CSKT. Tribal member Stephen Smallsalmon told the state and federal negotiators that "you guys should go home and let us run our water."

"This is our air, this is our land, this is our timber," Smallsalmon said. "If you don't like our reservation, you can move out."

Charlo resident Thompson Smith, a non-Tribal member, said he thought the state government often overreacted when it came to the Tribes.

"There are many non-Indians who don't oppose Tribal management of the water," he said. "There almost seems to be a locked-in, knee-jerk response from the state on these kinds of issues."

Pat Lundgren, another non-Tribal member, agreed that Tribal management was acceptable to her.

"We came here because it was unique. The beautiful land and water," the native Texan said. Tribal management, she added, was responsible for keeping the environment clean.

Pat Pierre, a Pen d'Oreille and Kootenai elder, closed the meeting by telling a story about his grandmother, who bathed and washed herself in a river on someone else's land. When a new, white owner took over, he told Pierre's grandmother she had to leave. His grandmother said her people had been using the river for generations, but the new owner continued to ask her to leave. At last, declaring that the water was hers, Pierre's grandmother took one of the towels she had been washing and chased the new landowner around, hitting him with it.

"Hopefully I won't have to use a wet towel approach," Pierre told the commission member, "but I will, if I have to."