After 157 years, Montana tribes want their water 

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"Essentially, we don't know what's up," he says. "That's really the problem."

Lawmakers in northwestern Montana are expressing similar frustrations, as the state is proposing new river flow protections on the Kootenai and Swan river drainages.

Mike Cuffe is a state representative in House District 2, which blankets the Kootenai Basin in the northwestern part of Montana. To protect bull trout, the state is suggesting closing Grave and O'Brien creeks, both Kootenai tributaries, to future large-scale irrigation. Cuffe says he's concerned about how an extra layer of environmental protections will affect his constituents. "People who are living there, trying to earn a living, are saying 'What the heck is going on?'" Cuffe says.

Others are happy about the stream protections. Troy Public Works Department Director Dave Norman says it will be a relief to see O'Brien Creek, which runs past Troy, protected. "The state just over-allocated these streams," he says.

click to enlarge The Pablo Reservoir, part of the Flathead Indian Irrigation Project - PHOTO BY CHAD HARDER

Cuffe says that until recently, he had no idea that his constituents, who live far from the Flathead Reservation, could be affected by promises made in the Hellgate Treaty 157 years ago. Cuffe suspects that most Montanans are like him, uneducated about the legal weight that document carries. "It may be history," he says, "but it's news today."



'Water is just a big issue in this valley'

Flathead Lake, the largest natural freshwater lake west of the Mississippi, is 300 feet deep, 28 miles long and, depending on the season, up to 15 miles wide.

About five miles south of the lake, Kerr Dam rises up from the Flathead River. The hydroelectric plant generates up to 194 megawatts, roughly enough electricity to power 145,500 homes, each hour. It's operated jointly by the CSKT and PPL Montana, the power company, with the CSKT aiming to purchase it in 2015. The river rushes through the 205-foot-high dam toward the rich soil of the Mission and Jocko valleys.

In 1908, Congress authorized the Flathead Irrigation Project. With 15 reservoirs and thousands of miles of ditches and canals that wind through reservation communities such as Camas, Dixon and Moiese, it's the biggest irrigation system in the state.

The irrigation project consumes the lion's share, about 95 percent, of all the reservation surface water that's used. Non-Indians own roughly 90 percent of the 128,000 acres served by the irrigation project. The CSKT tribes have filed multiple lawsuits over the project, many stemming from the fact that irrigation was drying up streams and jeopardizing fisheries.

In 2010, years of irrigation-related hostilities culminated in an unprecedented agreement among irrigators, tribal representatives and the federal government. A cooperative composed of tribal representatives and reservation irrigators took over the project from the Bureau of Indian Affairs. No other reservation irrigation program in the U.S. had taken over such a project from the BIA.

Irrigation is among the issues being debated as the state, tribal and federal governments meet to hammer out the water rights compact.

CSKT negotiating committee spokesman Clayton Matt says the tribes are working to ensure fisheries stay healthy and that farmers get the water they need. "The objective is to try and keep [the farmers] whole," Matt says.

click to enlarge CSKT hydrologist Seth Makepeace says water compact negotiations are fragile. - PHOTO COURTESY OF ROBERT MCDONALD, CSKT
  • Photo courtesy of Robert McDonald, CSKT
  • CSKT hydrologist Seth Makepeace says water compact negotiations are fragile.

Matt speaks quietly and chooses his words carefully. From his office at Tribal Headquarters overlooking Pablo's blue water tower, he seems a natural negotiator, not easily rattled. He's also a veritable encyclopedia of cultural, historical and scientific knowledge, and, at 55, a water-war veteran.

Since 1996, the tribes have argued three times before the Montana Supreme Court to fend off non-native attempts to draw reservation water without tribal authorization. The Montana Department of Natural Resources and Conservation has authority to allocate water use statewide, but the Montana Supreme Court has found that because the tribes have not reached a compact, the DNRC does not have authority to sign off on Flathead Reservation water use.

That's left what Matt calls an on-reservation "void in the water administration," meaning there is no legal process to forge new water claims, nor is there a mechanism to change existing uses. It's been that way since 1996. Rick Doran, the president of the Northwest Montana Association of Realtors, says the ban has been tough. "Someone might be able to drill a well but may never have the certainty that they will obtain a water right."

The city of Polson discussed the challenges in a 1997 legal brief, stating that "with continued population growth, but an inability to secure new permits for new sources of water pending resolution of complicated factual issues, how is a municipality located within the exterior boundaries of a reservation supposed to meet a statutory obligation to furnish" water to city residents?

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