Commentary - July 8, 2013
11:53 am
Tue July 9, 2013

CSKT tribal water compact a good deal for Montana

Never underestimate the ability of fire-breathing propaganda to tie good natural resource policy in knots -- even when the misinformation operates against the very interests it purports to defend.

Good policy is exactly what the proposed water compact between the State of Montana and Confederated Salish-Kootenai Tribes represents. However, thanks to extremist opponents – and some otherwise reasonable non-tribal irrigators scared by fear mongering -- the Compact, years in the works, was high-centered at the last Montana Legislature, a necessary stop for its ratification.

The Compact aims to settle forever the legitimate water rights afforded by the 1855 Treaty of Hellgate, in which the Salish, Pend Oreille and Kootenai peoples ceded 20 million acres of aboriginal homeland to the United States in exchange for a 1.3 million-acre Flathead Indian Reservation and continuance of certain rights, such as fishing, in all the accustomed places on and off the reservation. Courts have ruled that rights to fish mean little if streams don’t have water. Therefore the tribes have legitimate claims, though not quantified until now, to keep water in streams. 

The Compact emerged from years of transparent discussions among the State, tribes and federal government. It produced precedent-setting accommodation. The commission the Montana Legislature tasks with negotiating tribal water rights represented the State. The public was afforded opportunity to review and comment on the proposed Compact in dozens of meetings.

The compact achieves a mutual objective: Protect all valid existing uses of water while settling forever the substantial claims of the tribes.

In accomplishing this the tribes gave up significant claims for water on and off the reservation. But you’d never know this based on the fear mongering of various conspiracy theorists, many who publicly deny the legitimacy of Indian reservations and treaties, as well as the Western Montana Water Users Association, a shadowy new group with few identifiable spokespeople and a penchant for not revealing who runs and funds it.

Some Flathead area legislators have also helped whip up bad blood around the Compact. Their puzzling and paranoid opposition leaves you wondering whether they read the Compact or have a clue about the benefits the settlement affords all Montanans.

Opponents such as Kalispell’s Sen. Verdell Jackson say the Compact gives the tribes control over all water in western Montana. Nonsense. Actually, the Compact requires the tribes to relinquish most of their rights off-reservation, except for a few existing state-owned instream flow rights they will co-manage, as well as several main river claims that will always be junior in priority to the great majority of existing non-tribal rights, including those for irrigation and hydroelectric production. The accord further requires the tribes to accommodate all existing legitimate uses of water in the Flathead Indian Irrigation Project, the center of the anti-compact insurgency. Moreover, new instream flow rights the tribes will receive for maintaining fisheries on irrigation project lands are conditioned on investments first occurring to improve irrigation infrastructure. That’s why legislative and congressional ratification of the Compact could free up more than $40 million of state money, and much more in federal dollars, to improve irrigation systems that benefit non-tribal irrigators, including Compact critics.

Still, opponents insist the agreement hides phantoms. They charge it was negotiated in secret, which is untrue. All negotiations were open to the public. They claim the tribes will dictate how all water is used on the reservation, also untrue. The Compact establishes a reservation water management entity comprised equally of tribal and non-tribal members. Some opponents indignantly charge that tribal rights created in treaties aren’t legitimate -- rejecting legal precedent as well as treaty language in the very U.S. Constitution they say the Compact violates. Finally, they think they can negotiate a better deal. But that won’t happen. The tribes have little incentive to negotiate with unreasonable people. They can instead opt to go to court, and ask for more than they would get in the Compact – forcing existing water users to hire lawyers in an expensive skirmish that could last decades.

Condemning the Compact ignores its significant benefits. It could provide certainty for future water development to nearly half of Montana. Currently legal decrees for all water rights in western Montana are conditional, pending final settlement of tribal rights. Without a Compact, future economic development on the Flathead Indian Reservation will be uncertain, investment in reservation irrigation systems will go unfunded and key fisheries left imperiled. Most crucially, however, a harmonious relationships between the tribes and their non-tribal neighbors will needlessly suffer.

This is Bruce Farling of Montana Trout Unlimited. Contact us at www.montanatu.org.