Tribes say legal action may be only water-rights option

HELENA — The Montana Legislature’s failure to ratify a water-rights compact has left the Confederated Salish and Kootenai tribes no choice but to take legal action, a tribal spokesman said.

The Legislature’s inaction on bills that would have given the state’s approval on the compact in the works since 1979 “sends a chilling message” to the tribes, said Communications Director Rob McDonald.

“I am personally concerned with the future of community,” McDonald said. “It’s bad for business. It’s bad for the sense of community.”

A lawsuit would likely lead to years of litigation and widen the rifts between the Indian and non-Indian residents of the Flathead Indian Reservation in western Montana.

The compact is the result of at least a decade of negotiations between the tribes and the Montana Reserved Water Rights Compact Commission. Supporters say the compact would allow current irrigators access to plenty of water, while granting the tribes some off-reservation in-stream flow rights promised to them in the Hellgate Treaty made with the U.S. in 1855.

The Hellgate treaty allowed for tribal access to off-reservation lands that were traditionally used for hunting, gathering and fishing. Other Native American treaties in Montana do not have such provisions.

Rep. Daniel Soloman, R-Ronan, said he believes the courts are likely to rule in the tribes’ favor — securing all water rights granted to them in the treaty because they may have ancestral rights to more off-reservation bodies of water than what they agreed to in the compact.

“They have done a good job of documenting the traditional and ancestral places where they fished,” Soloman said. “If they go to court, they are going to go for Yellowstone and Musselshell and why wouldn’t they?”

Soloman is a farmer on the Flathead Indian Reservation and was appointed as the Republican House representative to the commission. He is one of several prominent agriculturists on the Flathead Reservation who support the water compact.

He sponsored House Bill 636 and remains adamant that his bill along with another compromise measure, House Bill 629, would have benefited both Indian and non-Indian neighbors on and off the Flathead Indian Reservation, while allowing for future development of western Montana. He said his experience working with the commission and the tribes has been a positive one.

But opponents fear that compact gives tribes too much control of water and that control will create hardship for non-Indian irrigators in the region. Under the compact, the tribes would have access to 90,000 acres of water stored in Hungry Horse Reservoir for their own use or lease. The compact would also establish a Water Management Board that would enforce water rights on Flathead Indian Reservation.

A website called Western Montana Water Rights, run by the group Concerned Citizens of Lake County and Western Montana, accuses the commission of marginalizing the opposition and rushing through public meetings.

House Republicans killed the measures to make room for Senate Bill 265, sponsored by Sen. Verdell Jackson, R-Kalispell, which would extend negotiations for another two years. Republicans say Jackson’s measure will allow the commission the time necessary to come to a better solution.

“If the compact is a great compact today, it will be a great compact in two years,” Rep. Jerry Bennett, R-Libby, said.

Even though Bennett lives in Libby, a few hours north of the Flathead Indian Reservation, his constituents are wary of a compact that contains off-reservation water rights for the tribes. He says there’s a perception that the compact may curtail potential development by deterring investment. And Libby, with an unemployment rate of 18 percent, greatly needs that investment, he said.

Bennett acknowledged that the tribes negotiated in good faith, but he believes the off-reservation water rights were thrown into the compact too hastily.

“As hurt as the tribes are, so are Montana’s citizens,” Bennett said.

Bennett said he hopes the tribes will allow negotiations to continue for another two years, but McDonald said the time for negotiations has passed as CSKT has spent “thousands of hours of staff time, researching and crafting a very elegant solution to a very complex problem.”

“We did what was asked,” McDonald said. “We didn’t choose this process. We did what we thought had to be done. We hashed out a compact, despite very difficult problems.”