The Montana Reserved Water Rights Compact Commission (RWRCC) recently released a new report on the Flathead Indian Reserved Water Rights Compact, as directed by Governor Steve Bullock. The report addresses some of the concerns over the compact and lists some of the problems that will likely occur if the compact is not ratified by the 2015 Montana Legislature, when it will go before the legislature for a second time. If passed by the state legislature and thereafter Congress, the compact would quantify the water rights of the Confederated Salish and Kootenai Tribes (CSKT).
The RWRCC, CSKT, and five federal government agencies*, have been negotiating the terms of the Flathead Reservation Federal Reserved Water Compact for over a decade. The compact quantifies the tribal water right for all past, present, and future uses, including non-consumptive uses (in-stream flow), and off-reservation water rights. Five of the seven tribes in the state have already finalized compacts that quantify tribal water rights and the Salish and Kootenai were the remaining two.
The process has been embroiled in controversy since the beginning, and does not seem to be any less controversial now. Water rights and tribal reserved water rights in particular have a contentious history. The Flathead Reservation was established by the Hellgate Treaty in 1855, which reserved 1.3 million acres. Not until Winters v. United States (1908) were the water rights defined as reserved along with land reservations, so several decades passed without any legal legitimacy given to water use by tribes in the reservation. The Dawes Severalty Act of 1887 and the Allotment Act of 1904 later allowed procurement and settlement by non-Indians, leading to the current situation: today non-Native Americans outnumber Native Americans within the Flathead Reservation. For a history of the fight for water rights for the CSKT, go here.
The U.S. Supreme Court, in response to many cases of litigation over tribal reserved water rights, directed tribes and states to approve compacts quantifying tribal water rights. In November of 2012, the CSKT and RWRCC reached a settlement, and then re-released a revised settlement after several public meetings in February 2013. The compact was brought to the state Legislature, but the bill failed to make it through committee.
It is likely that the failure of the legislature to pass the compact will lead to a very expensive litigation process over the next several years. The report from the state this week has done very little to appease opponents to the compact.
* Bureau of Reclamation, Bureau of Indian Affairs, U.S. Fish and Wildlife Service, U.S. Department of Justice, U.S. Department of Interior
Sources:
Tristan Scott, Flathead Beacon (12-31-13) Report Released on SCKT Water Rights Compact
Vince Devlin, Missoulian (12-17-13) Report Released on CSKT Water Compact, Impact if Fails, Off-Reservation Claims
Mike Dennison, Missoulian (1-7-14) Water Users Debate Flathead Compact at Legislative Meeting
Stephen Walker, Lewis, Longman and Walker, P.A. (11-10-13) The Confederated Salish and Kootenai Tribes Fight for Quantified Federal Water Rights in Montana: A Contentious History
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