CSKT water compact has complex history

by Chelle Mitchell

Last month, there were several meetings throughout the county regarding the Confederated Salish and Kootenai Tribes of Montana (CSKT) water compact. The issue has sparked heated discussions and concerns from residents about the future of water rights on their property. On October 28, more than 100 residents attended a meeting at the Whitepine Mennonite Church looking for answers regarding the legislation.

Rick Jore, who served in the Montana House of Representatives from 1995 to 2007, shared a bit of history. The CSKT compact stems from the Montana 1979 legislative decision to create the Federal Reserve Water Rights Commission. The purpose of this commission was to negotiate water rights between the Tribes, the State of Montana and the federal government, Jore said. This commission was to settle the dispute that had been ongoing regarding water since the Winters case in 1908. The basis of the commission was to set aside enough water to make sure to meet the “purpose of the reservation,” according to the Salish and Kootenai Water Rights Settlement Act of 2016. That purpose was addressed in the Hellgate Treaty of 1855. In this treaty, the Tribes ceded to the United States a significant portion of their aboriginal territory and reserved to themselves the Flathead Indian Reservation in Northwestern Montana, the act states.

Aboriginal Territory relates to the area in which the tribe moved to hunt, fish, and gather. The purpose of creating reservations, under Article 6 of the Hellgate Treaty, was to help the tribe with assimilation into the U.S. culture and provide individual tribal members the opportunity to own property. The federal government was then allowed to sell property the tribe did not use, within the reservation, to non-tribal members. The proceeds from these sales were to be used for tribal benefits as determined by the Bureau of Indian Affairs. And those nontribal citizens, who legally purchased property from the federal government within the reservation boundaries, are now being affected by this compact, according to Jore. They are at risk of losing their rights and protection of their property (water rights) by actions of the same government who sold them the property.

Senator Daines is a champion of this bill, along with Senator Tester. Senator Daines released a statement in December 2020 saying the tribe is having a “once in a lifetime moment” after passing this water compact. This compact is the largest to date any tribe has negotiated, amounting to $1.9 billion, according to Daines. The CSKT compact transfers 15 dams and reservoirs, and 1,300 miles of irrigation canals as well as the transfer of the National Bison Range to Tribal control, according to the Montana Water Rights Protection Act. Together, with the federal government filing on its behalf, the tribe claimed 10,000 water rights throughout its aboriginal territory. This refers to off-reservation land. And according to Daines’ article regarding this settlement, the CSKT rights predate those of the state or other “junior users” creating conflict in times of low flow [or drought].

Therein lies the concern of several citizens of Sanders County. The language of the compact is vague in not clearly stating who is at risk in those 10,000 water rights attached to the bill. Here in Sanders County the Water Court sent letters to some residents. Sixty-eight thousand letters went out, though over 300,000 water rights are registered, so not all who have water rights were included. The letter was titled “ IN THE WATER COURT OF THE STATE OF MONTANA CONFEDERATED SALISH AND KOOTENAI TRIBES-MONTANA-UNITED STATES COMPACT CASE NO. WC-0001-C-2021.” This four-page letter stated that the compact will allow tribes to divert and use water in accordance with the compact within all or parts of the following basins: basin 76M, Clark Fork, (between Blackfoot and Flathead Rivers) and basin 76N, Lower Clark Fork River (below Flathead River) among several others. The Water Court’s letter states if you have irrigation rights or water rights in a basin affected by this compact, your rights could be impacted. Residents could have their right to water affected by the Tribes’ right, because the CSKT rights predate all others. The letter advises property owners to review the compact.

Other than changing how water will run in Montana and who will be able to call (turn off) a well or irrigation supply, and the transfer of the National Bison Range, an additional 36,808 acres of state and private property will be granted to the tribe with the final passage of this compact. It is not clear where this property will be culled from yet. There are many aspects to this Water Compact other than water.

Many people at theWhitepine meeting shared that they had contacted the Department of Natural Resources and Conservation (DNRC) in Montana and had been told this only affects the reservation. But the Water Court’s letter to citizens states if you are in an area of a reserved basin, you could be impacted. Reserved basins go all the way to the Idaho border; the reservation does not. Many people have been told this only affects irrigation or wells producing greater than 100 gallons per minute of water. However, the compact doesn’t state domestic wells (which traditionally produce an average of 34 gallons per minute in our region) will not be impacted or addressed in the future.

For decades the issue of this water compact has been discussed and many drafts taken to the legislatures which have not been passed. The issue of water rights has become an old topic, hashed over so often many have lost interest. The Water Court letter states property owners who do not agree with the compact have until December 6, 2022, to file an objection. “This will be your only opportunity to object to the Preliminary Decree. If you do not file an objection at this time, you will not be able to object to the Preliminary Decree in any other proceedings before the Water Court and you will be bound by any final decree entered by the Water Court approving the Tribal Water Rights quantified in the Flathead Compact,” the letter states. So, as in a wedding, speak now or forever hold your peace.

“Individuals may not be under threat, but if our farmers are, we all are. Please do your due diligence,” said Linda Sauer, a presenter at the Whitepine meeting. The legislature and tribes have been working on the compact for decades. Now, citizens who have property that may be affected have been invited to the conversation.

For more information about water rights, go to gis.mt.gov or wrqs.dnrc.mt.gov.