The river comes last

  • Bighorn Canyon National Recreation Area

    Map by Diane Sylvain
  • Clara Nomee, chairwoman of the Crow Tribe

    George Schunk photo
  • John Chaffin, an attorney for the Department of the Interior

    George Schunk photo

Deep in the Wyoming wilderness and high above tree line, glacial cirques collect and funnel pure alpine waters from Cloud Peak's 13,000-foot summit down to the muddy torrent of the Bighorn River. Draining north into Montana, the river transects the Crow Indian reservation, where it is joined by the Little Bighorn, famous as the site of "Custer's Last Stand." Finally, the Bighorn merges with the Yellowstone just downstream from Pompey's Pillar, a rock formation that bears the carved initials from the 1805 Lewis and Clark expedition.

Much has changed since Lewis and Clark crossed the uncharted wilderness that was to become Montana. Crow Indians still speak the language of their ancestors, but the thundering buffalo herds that once formed the center of their "wheel of life" have vanished. And the "furious and formidable" plains grizzlies that terrified the Corps of Discovery are gone, their remnants driven into remote mountain ranges.

Even the Bighorn itself has changed. Nearly half of the islands and gravel bars that once filled the river's braided channels are gone, their riparian habitat lost to Yellowtail Dam's regulated outflows. But in exchange, cold, clear water pouring from the depths of the 70-mile-long reservoir has created one of the finest wild trout fisheries in the world.

Where buffalo calves once drank from a plains stream, drift boats packed with fly anglers now compete for trout that commonly exceed 4 pounds. With up to 7,000 catchable browns and rainbows per mile, it is no wonder this productive waterway hosts more than 100,000 angler days a year. This activity generates $18 million annually in an area where, as one local legislator put it, "the economy sucks." In a state ravaged by boom and bust industries and ranked at the bottom nationally in wages and per capita income, the fishery offers a welcome and much needed form of sustainable economic activity.

Given the world-class status of the fishery and the economic value to the state, it would seem an obvious public policy goal to protect this resource. So why did Montana's Legislature recently ratify a water compact with the Crow Nation that doesn't protect the Bighorn's fish? The answer, like the compact itself, is complex.

A "miracle" agreement

Montana, like most Western states, wrestles with who owns what water and whether "paper rights' correlate with actual use and availability. This is important because those with water rights get to take a certain amount of water from the river, lake or ground and use it for irrigating crops or for a wide variety of industrial and domestic purposes. Collectively, these activities are known as "consumptive use" and they sometimes suck rivers dry.

The opposite of "consumptive use" is "instream flows," which means leaving water in the streams for the fish. While some consider this a waste of good water and a luxury arid lands cannot afford, it is increasingly common to view a healthy river and fishery as a value worth protecting. Under the Crow Compact, all valid, existing consumptive water rights are guaranteed, yet no instream flow rights protect the Bighorn's trout.

The promise to honor all existing water rights was probably enough to garner the votes necessary to ratify the compact, and other agreements addressing long-standing disputes "sweetened the pot" for compact supporters.

One side deal settles a major Crow lawsuit against the state. For 20 years, the tribe has sought hundreds of millions in compensation for what it believes was illegal state taxation of Crow coal. In the out-of-court settlement, the state agrees to pay the tribe $15 million over 15 years and promises not to tax Crow coal in the future. The tribe, besides dropping the lawsuit, agrees to use the payments for economic development and water and sewer infrastructure on the reservation.

Another side agreement could settle a long-standing contention that the federal government did not enforce limits on how much reservation land could be owned by non-Indians. If everything goes as planned, the tribe will get a share of hydroelectric revenues from Yellowtail Dam that it will use to buy back non-Indian lands within reservation boundaries.

"I believe in miracles," said Clara Nomee, Madame Chairman of the Crow tribe, "and putting the compact together in 8 months was a miracle. Negotiating solutions to any one of these issues usually takes years, not months."

Fish dealt a bad hand

Some, however, think the short time frame had more to do with political term limits than miracles. The governor, attorney general and most of Montana's legislative leaders have held office for much of the last decade and are now "termed out."

In a state where the "Indian vote" can sway an election, having a role in a major negotiated tribal settlement can help candidates running for a new office. In addition, Nomee has been under federal investigation for possible misuse of tribal funds, and a popular settlement won't hurt her, either.

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