Liquid assets 

Flathead water compact divides community

Susan Lake worries about the future of her farm, but lately she's even more concerned about an emerging rift within her community. At issue is how the Confederated Salish and Kootenai Tribes' pending water compact could affect everyone living on the Flathead Indian Reservation.

"There's already infighting, with neighbor against neighbor," she says. "It isn't pretty."

Since 1934, the Lake family has farmed on the Flathead Indian Reservation, growing hay, potatoes and grains as well as raising cattle. They've always relied on the Flathead Irrigation Project for their water.

The irrigation system sprawls across 128,000 acres and brings water from the Flathead, Jocko and Little Bitterroot rivers to farms in communities such as Camas, St. Ignatius and Dixon. Over the years, the irrigation project has been at the center of multiple lawsuits, with the CSKT arguing successfully to stop irrigators from draining waterways and jeopardizing the reservation's prized fish hatcheries.

click to enlarge Missoula Independent news
  • Photo by Chad Harder
  • The Flathead Indian Irrigation Project is at the center of a debate over how much water the tribes are due based on 158-year-old treaty promises.

But another contentious debate over the irrigation system is brewing, and it involves a multifaceted water compact agreement that state, tribal and federal negotiators have been crafting for years. If an agreement is not reached soon, residents and officials worry about the chaotic—and costly—consequences.

Water rights issues have a long history in the region. In 1855, under the terms of the Hellgate Treaty, Salish, Pend d'Oreille and Kootenai tribes ceded about 23 million acres of land to the United States. In exchange, the government set aside the 1.3-million-acre Flathead Reservation for their "exclusive use and benefit." Despite the treaty, the Flathead did not remain solely tribal. In 1910, Congress opened the reservation to homesteading by non-Indians. Non-tribal members today outnumber American Indians by more than 2-to-1 and own roughly 90 percent of the land served by the irrigation project.

Changing demographics contribute to the challenges facing negotiators as they work to reconcile historic treaty promises with modern-day realities. Another challenge involves time.

The Montana Legislature in 1979 created the Reserved Water Rights Compact Commission to, in conjunction with tribal governments, determine how much water Montana's seven federally recognized tribes are entitled to based on their federal treaties. The aim was to negotiate rather than litigate the agreements and, to date, the commission has negotiated settlements with six of the seven tribal governments. The CSKT is the only one that has yet to quantify its claims.

The Compact Commission is slated to sunset in July. While there are legislative efforts underway to extend the negotiations, the tribes and the commission say that now is the time to finalize a deal.

"There will be losses to Indians and non-Indians alike if this compact is not approved," CSKT tribal chairman Joe Durglo told lawmakers during a Feb. 15 hearing on whether to extend the commission's tenure.

As part of the pending water compact, the CSKT has agreed to ensure that all domestic and municipal water users with legitimate claims to reservation water will receive the same amount that they've received historically. That aspect of the proposal is not without controversy. But it's the Flathead Indian Irrigation Project Water Use Agreement that poses the most imminent threat to the CSKT's pending compact.

The Water Use Agreement spells out how much water irrigators will get—"1.4 acre-feet per acre" annually, with up to 2 acre-feet granted, if irrigators demonstrate it will be put to efficient use.

The tribes wouldn't phase in the new caps until improvements can be made on 100-year-old Irrigation Project infrastructure, such as gates and ditches. According to CSKT hydrologist Seth Makepeace, the system now runs at about 35 percent efficiency.

In January, the Flathead Joint Board of Control, a state-chartered entity representing irrigators that operate on privately held reservation lands, voted to recommend that its 2,500 members support the Flathead Indian Irrigation Project Water Use Agreement. That vote didn't sit will with some residents. Non-Native farmers began to mobilize against the Water Use Agreement, arguing that it will enable the CSKT to subordinate their place in line for water. In Montana, water is allotted on a first-come, first-served basis.

Steve Killorn says that he researched water rights associated with the land he purchased in the Mission Valley two years ago. But he had no idea that the tribes could trump his claims, which date back to 1903 and 1910.

"I wouldn't have spent the money I spent here without the water rights paper sitting on that desk at the real estate person's office," Killorn says.

Aiming to derail the irrigation agreement, Killorn last summer helped to form the Western Water Users Association. Composed of more than 100 irrigators from the Flathead Reservation, the group filed suit in December, asking the Lake County District Court to prevent the Irrigation Project Agreement from going forward.

District Court Judge C.B. McNeil ruled Feb. 15 that the Joint Board doesn't have the authority to enter into the compact. Such an agreement, he said, would diminish the value of the plaintiffs' land without their consent and therefore constitute an illegal taking.

On Feb. 26, the CSKT fired back, arguing in court filings that the district court erred. According to the writ of certiorari, McNeil did "a masterful job" of ignoring legal precedents. The tribes are asking the Montana Supreme Court to reverse McNeil's decision.

If the legal wrangling bogs down the water compact and the Montana Legislature doesn't approve the compact this session, CSKT attorney John Carter says that all reservation water claims will be litigated and the tribes will no longer agree to concessions, such as grandfathering commercial and residential uses. "The deal is off," he says.

As for Lake, she's trying to diffuse the mounting tension, writing letters to local newspapers and appealing to her neighbors to keep cool. She supports the irrigation agreement and the compact, and feels the tribes have done their best to reassure farmers the agreements will help, rather than harm them. She sees consensus in this case as preferable to a protracted fight among neighbors. "We do best if we get along," she says.

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