Water compact ripples 

CSKT closer to innovative agreement

Tea Partiers, state legislators and farmers descended on the KwaTaqNuk Resort on Flathead Lake June 27 to air grievances and voice support for the Confederated Salish and Kootenai Tribes' pending water rights compact, which aims to forever define how water is allocated in towns like Polson, St. Ignatius and Ronan on the 1.3 million acre Flathead Indian Reservation.

CSKT, state and federal negotiators have worked for years to quantify how much water the tribes are entitled to under the 1855 Treaty of Hellgate, when the CSKT ceded some 23 million acres to the United States Government. In exchange, the federal government promised that the Flathead Reservation would be preserved for the CSKT's "exclusive use and benefit."

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  • Photo by Chad Harder
  • Part of the Flathead Indian Irrigation Project, watering crops near Post Creek, a few miles south of Ronan, July 11.

Despite the treaty promise, in 1910 the federal government opened the reservation to non-native homesteaders. Today, American Indians are outnumbered on the Flathead Reservation two to one.

The pending water compact seeks to reconcile promises made by the federal government 157 years ago with increasing demands for water on the reservation.

It's a sprawling effort. The compact spells out new mechanisms for developers and municipalities to legally claim water. It defines future wetlands and fisheries protections and how they will be achieved, even setting a minimum level for Flathead Lake. It also attempts to quantify how much water will be available for farmers who need to irrigate the Flathead's rolling alfalfa, wheat and hay fields.

The Flathead Indian Irrigation Project accounts for roughly 95 percent of all surface water use on the reservation. Non-Indians own about 90 percent of the 128,000 acres served by it. Weighing the needs of irrigators with those of the reservation's cutthroat and bull trout fisheries, which have historically sustained the Kootenai, Pend d' Orielle and Salish tribes of the reservation, has for years constituted a contentious jigsaw puzzle. The CSKT have filed multiple lawsuits over the irrigation project, many of them stemming from the fact that irrigation was drying up streams and jeopardizing fisheries.

Now, in what could be a historic truce, the tribes, the federal government and the Flathead Joint Board of Control, a state-chartered entity representing irrigators that operate on privately held lands within the reservation, are forging a tentative agreement that could finally put an end to years of bad blood.

Minimum stream-flow levels would be increased from interim levels set by judicial decisions to protect fisheries. The tribes would phase in the new levels until improvements can be made on 100-year-old Irrigation Project infrastructure, such as gates and ditches. According to CSKT hydrologist Seth Makepeace, the Irrigation Project now runs at about 35 percent efficiency.

The tribes are also likely to receive a significant cash settlement from the federal government as part of the compact. Such a settlement would absolve the U.S from potential breach of trust claims that could arise from, for instance, opening the Flathead Reservation to non-natives in 1910.

The tribes intend to use a portion of such a settlement to make irrigation project improvements. Makepeace says that would free up more water for everyone. Not everyone, however, supports the pending compact.

Some non-native reservation residents have expressed concern that the agreement would allow the CSKT to subordinate their need for water. "To take away what the people have here, or what they assumed they had—what's next?" asks John Swenson, a Libertarian candidate in the Lake County commissioners' race who owns property in Ronan. Swenson says the compact's potential impact on him and his neighbors took him off guard.

The tribes have agreed to ensure that all domestic and municipal water users on the Flathead with legitimate claims will receive the same amount of water they've used historically. New permits and changes to existing water uses would go through a five-member board charged with overseeing all non-irrigation water use on the Flathead. It would be composed of two representatives selected by Montana's governor and two CSKT appointees. Those appointees would pick the fifth board member.

Tribal water settlements typically create two different administration systems. The state oversees one set of claims; the tribes handle another. The unitary management body proposed in the CSKT compact would be unlike any other water administration system on any Indian reservation in the country.

The tribes have said it makes sense to have one body oversee one resource. But some reservation residents aren't thrilled with the prospect of having two tribal members on the oversight body. St. Ignatius resident Terry Backs, for instance, said on June 27 that because American Indians are a minority on the Flathead reservation, CSKT should not be given such sway. "I consider that to be very disconcerting," she said.

The Montana Reserved Water Rights Compact Commission, a state agency authorized to negotiate water rights agreements with tribal and federal governments, is slated to dissolve in July 2013. That means there's pressure to get the compact done in time to have it ratified by the Montana Legislature during its upcoming 2013 session.

The CSKT is the only tribal government of seven in Montana that has yet to quantify its claims. If negotiators aren't able to arrive at an agreement before the compact commission is dissolved, all reservation residents face what could be a costly and protracted legal battle.

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