After 157 years, Montana tribes want their water 

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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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