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Tribal water compact moving through Montana legislature

But the bill stirs up longstanding criticism of basic tribal sovereignty.

 

On Feb. 16, in a Montana Senate hearing in Helena, legislators listened for over five hours as more than 200 people testified on the Salish and Kootenai tribes’ last chance to pass what may be the most important water rights compact in Montana history. The agreement would clarify the amount of water the tribes can use, safeguarding the economic stability of the tribes and their neighbors for generations to come.

In the past four decades, six tribal reservations in Montana have successfully negotiated water compacts with the state. A 1979 act and subsequent court decision required the state and resident tribes to clearly define tribal water rights, but the Confederated Salish and Kootenai Tribes, which share a reservation and a tribal government, have yet to get such a compact. This is their last chance to do so; the 1979 law set a deadline of July 1, 2015, after which it requires tribes to settle the question on a case-by-case basis by suing competing water users.

Though the last-chance iteration of their contract is a complex 1,000-page-long document, the issue is simple: Without clear water rights, tribes and their neighbors face uncertainty about whether the water they’re using now is legally theirs and whether they’ll face expensive lawsuits to keep that water in the future.

If the tribes and surrounding communities don’t obtain clear water rights, their property values will also likely decrease. For these reasons, the compact is widely supported. But for a decade, extremist rhetoric has been hijacking the conversation about the compact, stirring up a century-old legacy of misunderstanding and fear of Indian self-determination. And that rhetoric has ramped up as the compact nears completion.

Ninepipe National Wildlife Refuge, a haven for Montana birds, amphibians and reptiles, is on the Confederated Salish and Kootenai Tribes' reservation. Photograph courtesy of Flickr user Michael Lusk.

“While the state is trying to negotiate the best possible settlement for the state of Montana, people are questioning the very basis of the (tribes’) right to have water rights,” says Barbara Chillcott, legal director for the environmental advocacy group Clark Fork Coalition.

For example, Republican Sen. Scott Sales began at the February hearing, addressing Vernon Finley, chairman of the Confederated Salish and Kootenai Tribes’ council, saying, "you stated that you represent a sovereign nation, [but] you’re dependent on the United States government. And my understanding of the term ‘sovereign’—and not just my understanding; the dictionary’s understanding—is that a sovereign nation requires independence…I was hoping maybe you could offer an explanation how this could be.”

Finley explained that case and federal law have recognized tribal sovereignty for almost two centuries and that receiving needed economic aid from the federal government—not to mention the history of oppression that created that need—does not change that. This question of the tribe’s fundamental legitimacy has appeared again and again this legislative session, as if tribal self-determination itself, and not a specific set of water rights, were somehow under debate.

In addition to environmental advocates and water groups, agricultural groups including Farmers and Ranchers for Montana, Montana Stockgrowers Association, the Montana Farm Bureau Federation, and the Montana Agricultural Business Association officially support the compact, as well as legislators both Republican and Democrat. A smaller faction of conservative legislators and advocacy groups, such as Montana Land and Water Alliance, oppose it. That group’s blog has published opposition arguments questioning the tribe’s ability to manage water rights.

As part of their challenge to basic tribal sovereignty, compact opponents are also attempting to overturn a long-standing treaty interpretation of fishing rights.

The compact would give the tribes rights to water not just from sources on the reservation, but from outside its boundaries as well. This can be traced to an 1855 treaty that gives the tribes rights to fish in areas surrounding the Flathead Reservation. Past case law interprets this to include the rights not just to fish, but to the water as well. But opponents of the agreement are debating it anyway, claiming that the original treaty only gave tribes the right to fish, not use water.

“Case law supports the off-reservation piece,” the Clark Fork Coalition's Chillcott said. “If the tribes have to litigate it, they’ll probably win. The state of Montana wants to deal with the uncertainty.” The compact, she said, is a compromise between the state of Montana and tribes, while case law has erred on the side of tribes. 

The bill has passed the judiciary committee and the Senate floor. It is awaiting the House, where it is likely to pass with little debate on the hydrologic and economic details of the complex document. Instead, expect more suspicion and confusion about the very basis of Indian self-determination—from both legislators and the general public. That confusion and rhetoric will continue to color the debate, but isn’t likely to stop the compact from passing; it may be a small price to pay for a long-awaited compromise. 

Kindra McQuillan is an editorial intern with High Country News.