After 157 years, Montana tribes want their water 

It's a warm spring afternoon at the Nkwusm Language Institute, in Arlee, where Pat Pierre teaches Salish. At 83, Pierre, a big man with white hair and deep smile lines, is a respected Pend d'Oreille and Kootenai elder intent on transmitting tribal history and culture to his students. "I need to get my knowledge to them," he says.

Pierre is one of the few fluent Salish speakers left on the Flathead Indian Reservation. He grew up speaking it in his hometown of Camas Prairie, not far from here.

Pierre looks out the window and points northwest, toward Perma. When he was a kid, he fished there, on the banks of the Flathead River near Perma's Painted Rocks. The water was so clear, he recalls. The fish were massive. "Big suckers, like that," he says, holding his hands about a foot apart.

Camas Prairie lies at the center of what for thousands of years has been Pend d'Oreille territory. Pierre's grandfather and great-grandfather fished all across present-day Montana, Idaho and into eastern Washington. Fish were central to their culture. So were waterways. They were supposed to be protected, reserved for their use. Today, tribes could finally be on the verge of defining those rights.

click to enlarge Pat Pierre, one of CSKT’s water compact negotiators - PHOTO BY CHAD HARDER

In 1855, under the terms of the Hellgate Treaty, Salish, Pend d'Oreille and Kootenai tribal leaders ceded about 23 million acres of land to the U.S. government. In exchange, the government set aside the 1.3 million acre Flathead Reservation for their "exclusive use and benefit." They were promised the right to take fish in all the streams running through and bordering the reservation in perpetuity. In 1910, Congress opened the reservation to homesteading by non-Indians. Today, they outnumber American Indians there by more than 2 to 1, which has led to conflicts over water rights.

The Hellgate Treaty also guaranteed the tribes' right to fish in their traditional places, which extend well beyond the Flathead Reservation. It recognized that the Salish, Pend d' Orielle and Kootenai people have always drawn sustenance from the water.

"It's as important to us as the earth, the air," Pierre says. "Water to the Indian people is a very sacred substance. It's medicinal. Water, cold water, is used for healing broken bones, healing naked bodies. It's used for so many things by our people."

The trick is in quantifying just how much water the tribes are entitled to. To do that, hydrologists are at work now, measuring historic and current stream flows in area waterways and charting reservation water use. Tribal, state and federal negotiators are using that data to craft an agreement that will shape how people on the Flathead Reservation, in communities like Polson, Ronan and St. Ignatius, use water.

That agreement, called a compact, also seeks to define off-reservation fishing rights, which extend across western Montana and could end up giving the tribes a significant role in protecting waterways there. Courts across the northwestern U.S. have found that states have a responsibility to keep rivers and creeks healthy enough to sustain fisheries so that aboriginal fishing rights have meaning.

click to enlarge The Pablo Canal, part of the Flathead Irrigation District - PHOTO BY CHAD HARDER

With more people wanting access to water in the region for a variety of uses, such as irrigation, drinking, fishing and recreation, and a finite supply, water compact negotiations can be emotionally charged. On one side are the Confederated Salish and Kootenai Tribes, who want to protect the water they have and ensure that the waterways that line Montana like veins remain healthy enough to sustain coming generations of Salish, Kootenai and Pend d'Oreille people. On the other side is the state, which must represent the interests of irrigators, city planners, developers and all other users of Montana's water. Some fear the CSKT's claim will mean less water for them.

The effort to forge a compact has officially been underway since the early 1980s. Now, though, pressure is on to nail down a deal. 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. 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, all parties face what could be a costly and protracted legal battle that could leave no one satisfied.

Pierre is on the CSKT water-negotiating committee. He's taking a hard-nosed approach. "Somebody said a while back, every time you negotiate with the state or the government, you lose," he says. "We're going to prove they're wrong."

The weighty treaty

In 1855, the Salish, Kootenai and Pend d 'Oreille tribes met Isaac Stevens, the governor of Washington Territory, at Council Groves on the Clark Fork River, a few miles west of present-day Missoula. The tribes believed the meeting was to hash out tensions with neighboring Blackfeet.

That wasn't the case. The West needed a transcontinental railroad. Congress had ordered Stevens to clear the way for it. To do that, he needed the tribes' land.

Negotiations took place between interpreters, leaving room for many misunderstandings. Despite language barriers and some obvious confusion, Stevens persuaded the tribes to sign a treaty.

click to enlarge The shores of Flathead Lake, on the Flathead Reservation - PHOTO BY CHAD HARDER

The ten treaties Stevens negotiated with northwestern plateau tribes, including the CSKT, promise the right to off-reservation fishing "at all usual and accustomed places, in common with citizens of the Territory." The CSKT is the only tribal government in Montana with a Stevens treaty that guarantees aboriginal fishing rights.

The treaties carry weight in court. In 1980, U.S. District Judge William Orrick of Tacoma found, in the United States v. Washington, one in a series of suits filed by Washington state tribes, that treaty rights carry environmental protections. After all, Orrick concluded, aboriginal fishing rights are meaningless if there aren't any fish. Montana cites Orrick's opinion in its current off-reservation proposal to CSKT, when it says that treaty promises entitle tribes to more than just the "ability to dip a net into the water and have it come out empty."

There are two primary categories to the compact: on-reservation and off-reservation. The off-reservation component deals with establishing protected fisheries, which involves setting minimum stream flows in waterways so the CSKT can continue to fish in their traditional places. Aboriginal fishing rights for the CSKT could encompass much of western Montana.

The centerpiece of the state's off-reservation proposal includes an offer to the CSKT to co-own the Clark Fork water rights formerly associated with the Milltown Dam, which was removed in 2009. Montana received the Milltown water rights from the dam's former owners, Atlantic Richfield Company and NorthWestern Energy, as part of a natural resource damage settlement. The tribes have not yet responded to the state's proposal.

Water policy experts say such a move could make water in the Upper Clark Fork Basin more scarce for large-scale surface-water irrigators such as farmers. "We know this is potentially a significant change," says Gerald Mueller, who's worked as a staffer for both the Upper Clark Fork Basin Steering Committee and the Clark Fork River Basin Task Force, which advise state lawmakers on water use.

Water rights in Montana and across the West are secured on a first-come, first-served basis. When a dry August rolls around and there's not enough water for everyone to irrigate their crops, state water commissioners have the authority to tell those who came after, who are sometimes called "juniors," to stop watering.

Atlantic Richfield had a water claim for the Milltown dam dating back to 1904. But it never kept junior users from using the water. Now, though, based on the state's off-reservation water proposal, the tribes and the state, as co-owners of the Milltown right, could tell farmers to stop watering if the Upper Clark Fork ran low enough for long enough to threaten fisheries.

click to enlarge Farmers irrigating between Pablo and Ronan - PHOTO BY CHAD HARDER

The Milltown water right would be senior to many users along the Upper Clark Fork, which begins near Anaconda and flows northwest through the Deer Lodge Valley, pushing past Drummond and the former Milltown Dam. The Milltown right would also be senior to water users who began drawing from Upper Clark Fork tributaries, including Rock and Flint creeks, after 1904.

That's got some farmers concerned, says Jim Dinsmore, who grows hay upstream of Milltown, on 400 acres west of Hall, in the Flint Creek Valley. As it stands, it already can be tough for farmers to get the water they need. "In the last 10 years, we've had some really, really dry years," he says.

Dinsmore, who is 62, has been irrigating for 40 years in the Flint Creek Valley. He's president of the Granite Conservation District and a member of both the Upper Clark Fork River Basin Steering Committee and the Clark Fork River Basin Task Force. In the historically parched basin, irrigators compete for water. Dinsmore says junior water rights are called almost every year. "There is more water spoken for than exists."

According to the state's proposal, the Milltown right would be enforceable only against people who draw more than 100 gallons per minute from a stream or well for irrigation. Water users would be told to stop irrigating after four days within a five-day period of low river flows. The state acknowledges in its offer that irrigators upstream from Milltown could have less water and commits to devising ways to ease potential water shortages.

Dinsmore says he's got no problem with keeping streams and fisheries healthy. And he respects aboriginal fishing rights. His issue is that as negotiators hurry to draft an agreement, too little information is getting to the people most likely to be impacted.

"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?

Polson Water and Sewer Superintendent Tony Porrazzo says the lakefront community has adjusted. It's increased reservoir capacity. And a cooling of the economy, including a significant slowing of the real estate market, has also helped assuage Polson's water problems, as fewer people are clamoring for it. Still, uncertainty looms. "Water is just a big issue in this valley," Porrazzo says.

In the pending on-reservation agreement, the tribes have agreed to incorporate all current water users on the Flathead, except for irrigators, whose needs are being examined in a separate negotiation. The tribes have even agreed to include reservation water users who installed wells without a permit after 1996.

According to tribal hydrologist Seth Makepeace, there are now more than 7,000 reservation-based water claims on file with the state, including commercial, industrial, domestic and municipal uses. "[It's] really a large basket of water users on the reservation that are being protected," he says, adding, "This was a difficult point for the tribes to come to."

In exchange, the tribes are asking the Bureau of Reclamation to bolster water resources with water from the Hungry Horse Reservoir, which is fed by the South Fork of the Flathead River.

The tribes are also likely to receive a significant cash settlement as part of a water compact. The Crow Tribe, for example, completed its water compact at the end of April and received a $460 million settlement. The compact, in turn, will absolve the United States from liability for breaches of trust, such as opening the Flathead Reservation to non-natives in 1910.

The CSKT also want to create a single water-management entity composed of tribal and state representatives that will administer future water use on the Flathead Reservation.

It's an unusual model. Tribal water settlements typically create two different administration systems. The state oversees one set of claims; the tribes handle another. The feds, too, sometimes get involved. "You might have three parties trying to administer water on the reservation," Matt says. "What we have said is, we want one system."

If they succeed, it will be the first such management body on an Indian reservation in the U.S.

click to enlarge The confluence of the Clark Fork and Blackfoot rivers, where the Milltown dam once stood - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • The confluence of the Clark Fork and Blackfoot rivers, where the Milltown dam once stood

In light of other CSKT endeavors, however, this approach shouldn't be surprising. The tribes have been steadily buying back land lost to non-natives in the early part of the 20th century and have taken over many operations once charged to the Bureau of Indian Affairs. For instance, the CSKT oversees the local power company and on-reservation logging.

Matt seems optimistic about the water deal. But he makes it clear that the tribes know the value of what they have. If negotiations fail, he says they could claim all the water on the reservation.

"If we were going to go to litigation, that's the position we would take," he says. "It's no longer a negotiation. And we would object to every other single claim out there."

War by other means

Inside a banquet room at the Best Western KwaTaqNuk Resort Casino, on Flathead Lake, on April 27, state, federal and tribal officials are mingling with attorneys and hydrologists. They shake hands, smile over coffee. Regulars at the monthly water compact negotiations say these meetings haven't always been so cordial. During past rounds, tempers ran high as the CSKT's desire to manage the tribes' fates ran headlong into the fears of farmers, developers and lawmakers.

The point now is to accommodate as many people as possible while ensuring the tribes get what they're legally entitled to. The waning tension could foreshadow a settlement at long last, but it's hard to tell. Some who are involved in the talks are reluctant to say anything outside of the formal KwaTaqNuk sessions, as if the agreement they're growing is a fragile shoot that could be trampled by public footsteps.

"Everything is at the tipping point," says CSKT hydrologist Seth Makepeace. "Fingers are in the dykes everywhere."

If state, federal and tribal officials can arrive at a compact, it will go to the Montana Legislature for ratification. Some legislators already have criticized the negotiations, saying they're opaque. Verdell Jackson, a Republican state senator from Kalispell, says in light of their complexity and potential impact, not enough information is being released. In order for legislators to sign off on the agreement, they need to understand it. And Jackson says most of them don't. "The learning curve is going to be very steep."

The tribes say they'll respond to the state's off-reservation proposal by the end of May.

Pat Pierre, the elder, says that during the past 150 years, the tribes have gradually acquired new weapons for self-defense; today, for example, they have a cadre of attorneys and hydrologists negotiating on their behalf. They'll use them to ensure that coming generations of Salish, Kootenai and Pend d' Oreille can draw sustenance from the waterways as they always have, he says. "We use your weapons of war to fight back now."

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