All’s well… 

Flathead water deal proposes giving tribe sole control

No one knows who will control water in the Mission Valley in the future or when that issue will be decided. Nor can anyone say for sure how drinking water and sewage permits will be administered in the meantime.

But whatever form the final agreement takes involving the Confederated Salish and Kootenai Tribe, the State of Montana and the federal government, it’s likely that the deal will look like no other water compact in history.

During negotiations held last week, the parties issued an outline for an interim agreement while they hash out a final compact. The proposal itself is as unique as the Flathead Indian Reservation in that it would give the tribe sole authority over all water on the reservation.

The outline proposes a joint application, a review board composed of state and tribal personnel, and a license to be granted in tandem by both parties. Because such a process would affect state law, it would require approval by the Legislature and could not be enacted until after the next general session.

The unusual interim proposal is due to an unusual announcement made by the tribe last year. In June of 2001, the tribe announced its preference for “a reservation-wide tribal water administration ordinance” based on the tribe’s claim that “all water on the reservation is tribal.” In effect, the tribe declared its sole authority over surface water and groundwater from the middle of Flathead Lake to Evaro, and from the Mission Mountains to Hot Springs.

For tribal negotiator Clayton Matt, the plan has as much to do with tribal concerns over sovereignty as with practical water-use issues such as environmental impacts. Matt also notes that the concept of sole authority on the reservation is not unprecedented, but is based on the Hellgate Treaty of 1855, which created the Flathead Indian Reservation.

For instance, the tribe owns the banks of the southern half of Flathead Lake and anyone who wants to construct a dock there must first apply for a permit from the tribe, thus assuring that the shoreline of the lake is managed in a consistent manner.

According to Susan Cottingham, staff director of the Montana Reserved Water Rights Compact Commission, no other tribe in the state has requested joint administration for an interim proposal, much less sole authority under the final compact.

Water compacts for the Fort Belknap, Rocky Boy, Fort Peck, and Crow reservations, for example, provide dual administration, in which the tribe governs water on tribal-owned and tribal-member lands, while the state governs water on non-tribal lands. On the Northern Cheyenne Reservation, dual administration is unnecessary because there are no non-tribal holdings. A final compact for the Blackfeet Reservation has not yet been completed.

Some non-tribal members who live on the Flathead Reservation are less than enthusiastic about the plan by the tribe to assert sole authority over their water. (Within its exterior boundaries, the reservation is comprised of 60 percent tribal land with the remainder a mix of parcels held by tribal members and non-members alike.) That makes Cottingham anxious because the Legislature must approve any agreement drafted during the negotiations.

“In the end it’s a political approval process,” says Cottingham. “And we can’t go with something that doesn’t have public support.”

Nor are non-tribal members excited about the nine-point outline for joint administration in the interim, according to Mike Hutchin, chairman of the Lake County board of commissioners. Hutchin estimates that about 80 percent of county residents are opposed to the tribal plan and remain skeptical about the interim proposal, a split which roughly corresponds to the non-Indian proportion of the county population.

“For those nine points, there are 900 questions,” says Hutchin. “Like, what would the makeup of the board be, and will a license issued under this agreement be turned into a bona fide permit under the compact?”

Such details won’t be established until state, tribal and federal negotiators meet again in the fall. The slow pace of negotiations frustrates Hutchin, and he notes that Polson has imposed a moratorium on further land development because it cannot add water services until this situation is resolved.

But in Montana, everything related to water takes time. The State of Montana created the Reserve Water Rights Compact Commission in 1979 and negotiations over the Flathead Reservation didn’t begin until the mid-1980s. What seems clear to most observers is that the tribe, in conjunction with the state, will proceed at its own pace under its own terms.

“It doesn’t matter what happened on the other reservations,” says Matt. “Each reservation is independent. Each reservation has its own goals and perspectives.”

Dave DeGrandpre, director of planning for Lake County, has his own criticism of the interim proposal, though he notes that the current state of limbo hasn’t had much of a chilling effect on development in general. In 2000, applications for 32 subdivisions with 149 lots passed successfully through his office. In 2001, applications for 25 subdivisions with 136 lots did the same.

Thus far in 2002, applications for 13 subdivisions with 113 lots have received preliminary approval, which DeGrandpre described as normal. The difference, he points out, is where the subdivisions are located. This year, 91 of the 113 lots have proposed drawing water from community or municipal systems.

This situation appears to be concentrating development in and around towns, near approved or guaranteed water rights. But DeGrandpre says that the interim proposal, which promotes a “lesser degree of scrutiny for single-family wells,” could reverse that trend.

Such language is undesirable from a planning perspective, says DeGrandpre, because it fails to provide an incentive for water conservation, as well use is not metered and because it might divert development pressure from established communities to undeveloped agricultural lands and open space.

Public involvement—and the criticism that’s accompanying it—are an inevitable part of the process, but according to Matt, the Confederated Salish and Kootenai Tribe is committed to managing the water on the reservation as an undivided resource owned by a single government.

“Some government entities don’t take tribal government seriously,” Matt says. “And they have to learn the hard way, in court.”

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