Tribes sue over reservation water rights

The Confederated Salish and Kootenai Tribes have filed a lawsuit in federal court that seeks to claim tribal ownership of water and water rights on the Flathead Reservation.

An attorney representing irrigators is appealing to Montana Attorney General Tim Fox for help.

The lawsuit was filed in U.S. District Court in Missoula on Feb. 27 by the tribal legal department.

It names as defendants the secretary of Interior, the Bureau of Indian Affairs, a state District Court, the Montana Water Court, three irrigation districts on the reservation and “an unknown number of John Doe defendants claiming (Flathead Indian Irrigation Project) water as a personal water right.”

It seeks a declaratory judgment that “all waters” on the reservation were reserved by the tribes. It seeks to prevent the 20th District Court of Montana “from taking any action to determine who owns water rights, or claims to water rights” made available through the Flathead Indian Irrigation Project in two cases before that court.

And it seeks to enjoin the Montana Water Court from determining who owns water rights in another case.

Jon Metropoulos, a Helena attorney representing the Flathead Irrigation District, wrote to Fox asking for the state to intervene in the case.

“In this suit, the CSKT claim to own legal title to all of the water on, under, and flowing through the Flathead Reservation,” Metropoulos wrote in the letter last Monday. “Moreover, they claim to own legal title to all of the water rights to such water that is delivered to my clients, and other irrigators, by the Flathead Irrigation Project.”

Tribal spokesman Rob McDonald described it differently.

“This is a narrowly tailored suit that asks the federal court to declare the ownership of water by the Flathead Irrigation Project,” McDonald said.

Metropoulos pointed out that the tribes claim to own water that is delivered to irrigate about 127,000 acres, 90 percent of which are owned by individuals on about 2,000 farms and ranches.

“To be direct and very clear, these farmers and ranchers, including those I represent as the lawyer for the Flathead Irrigation District, include both tribal members and nonmembers. Thus, from our perspective this is emphatically not a matter of Indian versus non-Indian,” Metropoulos stated.

Since the tribes are seeking injunctions to prevent the state District Court and the Water Court from determining three cases before them, Metropoulos contends the tribes “would prefer to have water rights issues in which they are interested decided by the federal courts.”

Metropoulos regards the lawsuit as a challenge to the state of Montana’s sovereign ownership of all waters in the state — and he said the case ultimately could undermine fee title ownership of real property on the reservation.

He wants Fox “to defend the State of Montana’s sovereign prerogatives at issue here. These include its constitutional ownership of water within the state and the constitutional requirement to administer water rights, as well as its courts’ jurisdiction to adjudicate these issues and its citizens’ legal right to invoke the jurisdiction of its courts.”

A group called Concerned Citizens of Western Montana contends that the lawsuit attempts to achieve much of the content of a controversial tribal water rights compact that failed to get legislative approval last year. And in a recent blog post, the group describes the lawsuit as an effort to “scare people into ‘falling in line’ with the compact.”