Water rights negotiations continue in face of tribal members' protests

By Jennifer McBride / Leader Staff

PABLO — Water rights negotiations aren't simple or quick, said Chris Tweeten, state-appointed chairman of the Montana Reserved Water Rights Compact Commission. From start to finish, Tweeten said the first compact the commission worked on took six years to negotiate. In the second agreement, discussions lasted eight years. The compact on the Flathead reservations could be the most complicated pact Tweeten has ever negotiated.

Nevertheless, Tweeten cautioned members of the Confederated Salish Kootenai Tribes members at a meeting on Mar 12 that the wait would be worth it.

"In 2018, when the lawsuits drag on into the second decade and millions of dollars have been spent on lawyers, I think we'll look back on this with regret, if we had a chance to negotiate and we lost it because there wasn't enough political will," he stated.

At the last meeting between the tribes, the state and the federal government, Tweeten explained that water rights negotiations on the Flathead reservation have been going on intermittently since the 1980s. They've been in dispute for far longer, Rob McDonald, spokesman for the CSKT, explained. In 1973 the state of Montana created the Reserved Water Rights Compact Commission, which has negotiated dozens of cases, including compacts for six out of seven with Montana's Indian reservations. The commission's mandate expires in July 2009, he said, and the Montana state legislature has refused to extend the deadline despite a request from the tribal government.

If negotiations collapse, conflicting claims will have to be settled in court. McDonald said 4,000 people have already filed water rights claims. Tribal chairman James Steele explained that, if the commission can't reach a compromise, everyone on the reservation with an interest in water will have to hire an Indian water rights lawyer. Similar court disputes in Wyoming, Steele said at the previous meeting, have dragged on for thirty years.

But the majority of the speakers who gave their opinions during the public comment portion of the latest meeting said a legal battle was exactly what they wanted. Two months ago, the tribes offered a proposal featuring a "unitary government," a local water rights commission with power divided between state, tribal and the federal representatives. This is a huge change, McDonald said, from a 2001 CSKT proposal which had 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." While statement of ownership stymied negotiations between the state and the tribes in 2001, but some tribal members say that anything less is an unacceptable compromise.

Vernon Finley, one of the tribal members who spoke during the public comment portion of the recent meeting, thought the unitary government proposal sacrificed too much of the tribe's water rights. He told Chairman Steele that it was time to throw down "the spear" and take tribal claims to the courts instead of negotiating with a state that had repeatedly shown that it couldn't protect Indian interests.

"Maybe you are going to win in the long run, but it's time to fight the good fight," he said to the commission. "We need some more Crazy Dogs."

Unitary government

Tweeten said the commission had a lot of slaving away before the state is willing to support the unitary government proposal, starting at the next meeting — tentatively set for Apr 30.

"There are a lot of details that remain to be worked out," he explained. "I think there are a lot of things in the proposal that will work and I think there are a lot of details in the proposal which won't work."

Tribal lawyer Clayton Matt said that the CSKT welcomed "hard questions."

"We fully understand that not all the details are worked out yet," he replied.

Besides a new administration agreement, the commission may base division on a new technical survey. Seth Makepeace is part of a scientific team seeking to quantify the tribe's current water resources. He told the commission on Wednesday that his evaluation was a four step process: define what existing water resources are available; project how much those reserves would increase if the water was more efficiently managed; predict how much water would be freed up by fixing the leaks in the irrigation system; and finally, determine what would be the desired future conditions to maximally support the reservation's water resources.

Makepeace also said the technical team was creating a database of all water claims, permits, certificates and unprocessed requests. The process, the committee estimated, could be finished by the end of the year if everything was completed in "record time."

With so many issues to work on, Matt asked Tweeten to lobby the state legislature for an extension to the July 2009 deadline.

Tweeten said he thought the request was premature. "We're not prepared to make a stand one way or another on an extension," he said. "We'll cross that bridge when we come to it."

Public opposition

During the public comment period, all of the seven speakers who stood up said they would prefer the tribes to get out of negotiations entirely.

"In reality, I don't see any progress," said Francis Auld, a representative of the Kootenai Tribe. "I hear the lawyers' words, but that just brings us back to the same thing." Auld accused the state, who had months to look at the proposal and still had not come back to the negotiating table with a substantive response, of purposely ignoring the proposal.

"We don't need to negotiate anymore when it won't do us any good," he said.

Louise Stasso, a self-described Indian rights activist, said that she favored "litigation, because it will outlast Mother Earth." The government hadn't protected the water quality so far, she said, and Stasso didn't think it would start now.

Finley then pointed out that the state has failed to protect tribal interests again and again. In the state criminal justice system, Indians represent a disproportionate percent of prison inmates. In terms of the environment, under state stewardship, Flathead Lake and other water resources had become too polluted to use. Finley offered to cook the commission a fish from the Flathead and dared them to eat it. If the state started treating the CSKT with respect as a sovereign nation, Finley added, the CSKT would start showing what "good neighbors" they could be.

Bearhead Swaney also said it was time for the tribes to stop negotiations and start pursuing litigation.

"We will lose and you will win, because we are few and you are many," he told the state. "Take [the water] from me if you must, but I will not negotiate with you."

A time-consuming process

Building a new system of administration from scratch will take time, Tweeten reminded the tribal members. In an interview after the meeting, Tweeten said that a "unitary government" had never been tried in any water rights agreement he had negotiated or heard of.

"We're inventing this as we go along," Tweeten said. "But somebody had to flesh out all the other agreements. Everything had to be invented some time."