The National Bison
Range in Montana is located entirely within the boundaries of the Flathead Reservation, home to the Confederated Salish and Kootenai Tribes. Photo: Dave
Fitzpatrick / U.S. Fish and Wildlife Service
Montana Free Press: CSKT water compact bill clears first hurdle in U.S. Senate
Monday, August 3, 2020
If the act passes, the Confederated Salish and Kootenai Tribes will relinquish claims to off-reservation water rights and regain control of the National Bison Range on the Flathead Indian Reservation, ending a contentious years-long debate.
A Montana water rights bill that would end a years-long debate was passed by a congressional committee on July 29, the next step in ensuring irrigators and the Confederated Salish and Kootenai Tribes can avoid lengthy and costly adjudication of irrigation rights.
Members of the Senate Indian Affairs Committee passed
the Montana Water Rights Protection Act
last Wednesday afternoon, the first action federal lawmakers have taken on the bill since it was introduced by Montana Sen. Steve Daines in December. Sen. Jon Tester co-sponsored the bill. [S. 3019]
The bill would resolve a century-old water rights dispute and allocate $1.9 billion to settle federal damage claims and to rehabilitate the deteriorating Flathead Indian Irrigation Project. In exchange for the tribes’ agreement to relinquish claims to off-reservation water rights, the bill
would return control of the National Bison Range
on the Flathead Indian Reservation to the tribes.
Indianz.Com: Senate Committee on Indian Affairs Business Meeting July 29, 2020
The bill would nullify any conflicts in the state legal system between the CSKT and landowners over water rights that could affect much of the state’s irrigated land.
“For years, this has been a polarizing issue in Montana,” Daines said during an Indian Affairs Committee meeting late last month. “We have a constitutional duty to bring resolution to the CSKT water dispute, helping the tribe quantify and realize the water they are entitled to under the Hellgate Treaty, as well as a hundred years of federal court precedents. We must also provide a practical solution to resolve this significant liability for the United States, to protect Montana’s agricultural economy and, as I mentioned earlier, protect the water rights to all Montanans.”
The compact
narrowly passed
the Montana Legislature in 2015, but needed congressional approval to ratify the agreement. The Trump administration
signaled its support for the compact in November.
“It does great things for building infrastructure, both inside the reservation and outside; it does great things for providing certainty to towns and water owners across Montana,” Tester said last month. “We need this water settlement for Montana. We need it for predictability. We need it for certainty. We need it to be able to continue to grow our economy.”
The foundation of the water compact is the
1855 Hellgate Treaty,
which ensured CSKT rights to in-stream water rights beyond the borders of the Flathead Indian Reservation because the treaty guaranteed tribal members the right to fish at “all usual and accustomed places.”
Some Montana Republicans, however,
have opposed the bill, arguing that it is improper to base a water agreement on the treaty, parts of which they consider archaic.
Earlier this year, state Sen.
Al Olszewski and four other Republican lawmakers urged Daines
to withdraw the bill, saying the state legislation is based on flawed legal logic and yields too much control of water rights to the tribes. If passed by Congress, the bill would harm western Montana landowners, according to opponents, who expressed confidence that in the absence of a federal bill, Montana landowners stand a good chance of prevailing in water rights conflicts in state court.
Flathead Lake on the
Flathead Reservation, home to the Confederated Salish and Kootenai Tribes of
Montana. Photo: Paul
Frederickson
On the contrary, Daines said during last month’s Indian Affairs Committee hearing that federal courts have repeatedly upheld treaty-based water rights similar to the CSKT’s.
Thousands of off-reservation CSKT water claims that could result in irrigators losing control of about 70% of their irrigation rights are currently pending, Daines said last month.
Two amendments were made to the bill on Wednesday, though the language of those amendments is not yet publicly known. Text of the changes wasn’t discussed during the committee meeting or immediately posted online.
Spokespeople for Daines and Tester didn’t immediately respond to requests for comment on Wednesday afternoon.
Off-reservation water
claims made by CSKT, on hold pending approval of the CSKT-Montana Compact. Image
adapted from Montana
Department of Natural Resources
“This legislation – which is long overdue – is the result of years of negotiation and represents an innovative, collaborative solution. The water compact reflects a positive, forward-looking approach to water management, community development and ecosystem recovery,” said Tom France, regional executive director for the National Wildlife Federation,
in a Wednesday press release. “The Salish and Kootenai Tribes played a pivotal role in saving bison from extinction in the late 1800s. This act will right a historic wrong by returning management authority of the National Bison Range to the tribes.”
Chris Aadland covers tribal affairs in Montana as a Report for America corps member based in Billings. Before moving to Montana he covered the Wind River Reservation in Wyoming for the Casper Star-Tribune, and has also reported for the Wisconsin State Journal. Contact Chris at caadland@montanafreepress.org and follow @cjaadland on Twitter.
This story originally appeared on Montana Free Press on July 29, 2020. It is published under a Creative Commons license.
