Opponents to CSKT water compact propose alternative

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The Middle Fork of the Flathead River. (Brenda Ahearn/Daily Inter Lake file)

In July 1855, participants in treaty negotiations included the Salish, Kootenai and Pend d’Oreille tribes and Territorial Gov. Isaac Stevens. The end result was the Hellgate Treaty of 1855.

Within the treaty with the United States, the Salish and Kootenai tribes reserved a tribal homeland — the Flathead Indian Reservation — and retained hunting, fishing, trapping and gathering rights throughout their aboriginal territory.

On the reservation, the tribes retained the exclusive right of taking fish in all the streams running through or bordering the reservation. Federal courts have determined that such rights can carry a “time immemorial” instream flow water right necessary to sustain fisheries.

In addition, the Hellgate Treaty granted the tribes “the right of taking fish at all usual and accustomed places.”

In exchange, the tribes agreed to cede to the U.S. government more than 20 million acres of their aboriginal homelands.

The treaty and a subsequent decision by the U.S. Supreme Court defined other tribal water rights.

Now, more than 163 years later, controversy about those water rights and their administration has stirred anew in the wake of the 2015 Montana Legislature’s approval of the Confederated Salish and Kootenai Tribes water compact, often written as CSKT compact.

Decades of negotiations preceded the contentious 2015 vote approving the compact, which is a legal agreement between the state of Montana, the federal government and the Confederated Salish and Kootenai Tribes.

A group of opponents to that complex agreement, which awaits congressional and tribal ratification, recently began championing an alternative — described as the People’s Water Compact — and reached out to a few regional legislators for support.

State Sen. Keith Regier, R-Kalispell, backs the People’s Water Compact. As does Sen. Dr. Al Olszewski, R-Kalispell.

Regier has observed that the 2015 water compact was one of the most divisive pieces of legislation ever produced in the state. Others have described the compact as a prime example of legislation understood by precious few of the lawmakers who voted for it.

“Divisive” seems to be the operative adjective used by both sides.

An eight-page pamphlet published in November by the Concerned Citizens of Western Montana described the 2015 agreement as a “controversial, divisive and failed effort to resolve the federal reserved water rights of the United States/CSKT...”

U.S. Sen. Steve Daines, R-Mont., weighed in recently.

“The current CSKT compact is the most controversial, expensive and divisive of Montana’s six Indian water rights settlement agreements,” Daines said.

“Montanans are very divided,” he said. “I welcome the effort of the opponents of the current proposed settlement for bringing new ideas to the table for a path forward. I will continue working and listening to all stakeholders to help reach a fair solution that can bring Montanans together.”

In contrast, U.S. Sen. Jon Tester, D-Mont., used the word “divide” in reference to the intent of the People’s Water Compact.

“I support the bipartisan CSKT Water Compact,” Tester said. “There has been a lot of good work done by the tribes and the numerous stakeholders to pass the compact and provide certainty for all water users.

“To head in a new direction now will create uncertainty, litigation, and hurt the economy,” he said. “This new proposal is just a distraction designed to divide. It’s not a real solution at all.”

Montana U.S. Rep. Greg Gianforte, a Republican, also has issued a statement.

“Federal agencies are reviewing the proposed CSKT water compact agreed to by the state and tribe,” Gianforte said. “Upon concluding their review, they could require changes to the proposed water compact before any action is taken,” he said. “As the review moves forward, I’ll continue working with the tribes and surrounding communities on this issue, and I welcome and appreciate ideas that come from a collaborative approach.”

The People’s Water Compact suggests that the current compact “federalizes the water in western Montana, giving federal and tribal governments the ability to regulate and control its uses.”

It holds that the current compact’s provisions, and a related bill proposed by Tester, would give the tribal government too much say over Flathead Irrigation Project water used both by tribal members and non-Indians: “Imagine being obligated to an adversarial tribal government for the delivery of water that is necessary for your livelihood.”

And the People’s compact expresses specific concerns about off-reservation water rights claimed by the tribes.

The CSKT filed 1,720 on-reservation water claims and 1,094 off-reservation instream water claims. The U.S. Department of Justice filed 7,295 claims in trust for the CSKT, reaching a total of 10,109 claims.

Robert McDonald, a spokesman for the CSKT, noted that the tribes “immediately asked to stay those claims pending final ratification of the compact.”

Supporters of the People’s compact describe the CSKT water compact as differing radically from other compacts negotiated with Montana tribes.

Yet state Rep. Zach Brown, a Democrat from Bozeman, notes that the CSKT compact is based on a unique treaty.

“The Hellgate Treaty was more generous and broad than other tribal treaties,” Brown said.

He said the CSKT’s expansive historical territory covered roughly two-thirds of the state, “which is well documented by anthropologists.”

“That is just a fact of life, and it is our obligation as Montanans and Americans to honor this government-to-government, sovereign-to-sovereign treaty,” Brown said.

The People’s Water Compact suggests its provisions protect existing water rights of all Montanans, including eastern Montanans, by requiring that off-reservation claims, including claims in eastern Montana, be withdrawn. Its supporters say this alternative compact “properly quantifies the tribe’s federal reserved water rights and limits them to the amount of water necessary to fulfill the purpose of the reservation.”

Federal reserved water rights were created when the U.S. Supreme Court made the decision in the 1908 Winters vs. United States case about a Fort Belknap Indian Reservation water claim. In the Winters decision, the Supreme Court decided that when Congress or the president sets aside land out of the public domain for a specific purpose, such as an Indian reservation, national park or national forest, a quantity of water is reserved based on the amount necessary to fulfill the specific federal purpose.

The Concerned Citizens of Western Montana formed the Polson-based Montana Land and Water Alliance.

The alliance says its focus is protecting land and water rights critical to the prosperity of everyone, “including Montana farmers, ranchers, business owners and rural communities.”

It says Montana legislators failed in 2015 to address the water needs of non-Indians living throughout western Montana. And it notes that in western Montana, known to be the headwaters of many rivers, “water has become the new oil - blue gold.”

In turn, supporters of the CSKT compact insist it protects water rights for existing water-rights holders. They say it provides resources necessary for the tribes to invest in water infrastructure that will benefit both tribal and non-tribal members in Flathead and Lake counties.

And they say it avoids the costly litigation that would follow if the Confederated Salish and Kootenai Tribes were obligated to litigate their water rights in the Montana Water Court.

An opinion piece co-authored by Rep. Brown and Pat Connell says the CSKT compact settles the legal claims of the tribes by defining their federally reserved water rights.

They wrote, “By defining these rights through the compacting process, rather than through litigation, decades of costly, unnecessary and time-consuming legal battles are avoided.”

Given that the CSKT claims number in the thousands and cover about two-thirds of Montana, the litigation could be extensive, prolonged and expensive and leave farmers, ranchers and other landowners and water users in limbo for a long time, compact proponents say.

Lorents Grosfield, a third-generation cattle rancher from Big Timber and former state legislator, is co-chairman of Farmers and Ranchers for Montana, a coalition that supports the CSKT water compact.

In an email, Grosfield described the People’s compact as ill-conceived.

“The fake compact proposal made by opponents should really be called the ‘Lawyers Pact’ for the massive amount of litigation that it will cause if it were to overturn the Montana Water Compact,” he said.

He said the People’s compact “would put water users across Montana in jeopardy of losing or having to litigate their water rights before the Montana Water Court — an expense we simply cannot afford.”

On Thursday, John Tubbs, director of the Montana Department of Natural Resources and Conservation, issued a statement responding to the People’s compact.

He said that in absence of the [CSKT compact], all 10,109 of the water claims filed by the tribes or by the U.S. Department of Justice on their behalf would have to be ajudicated by the Montana Water Court.

“The Tribes’ off-reservation claims carry the earliest priority date of any water claim in Montana,” Tubbs observed. “Through the [existing] compact, CKST agrees to limit their rights to on-reservation claims along with 97 off-reservation rights,” he said.

In turn, Regier said he believes the predictions about costly and protracted litigation reflect a campaign by supporters of the CSKT water compact to instill fear and gain political clout for ratification.

The backer’s of the People’s Water Compact say they would not take their alternative to the Montana Legislature. Instead, the compact would be submitted directly to Congress “as a people’s Petition for Resolution.”

Regier said petition language hasn’t been drafted yet, noting that building support for the People’s compact is “in its infancy.”

Meanwhile, Tubbs said the three sovereign governments involved in the CSKT Water Compact “remain committed to the compact as it was negotiated and ratified and look forward to congressional action to settle CSKT water claims for all time.”

Brown, Tubbs and Grosfield all noted that the People’s Water Compact is a compact in name only.

“The state and tribes aren’t part of it, haven’t been consulted and aren’t party to it,” Brown said.

Olszewski described as “passionate” the debate about the two water compacts, noting that conflict about water rights has a long history in the West, dating back to the arrival of Euro-American settlers.

“Once the western lands were being settled, the ability to get water has always been an issue,” he said.

Dr. Al Olszewski will discuss the People’s Water Compact during a meeting at 6 p.m. Monday, Dec. 10 at Sykes restaurant, 202 Second Ave. W., Kalispell.

Reporter Duncan Adams may be reached at dadams@dailyinterlake.com or 758-4407.

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