The Hellgate Treaty of 1855, Article III., guaranteed the Confederated Tribes the exclusive right of taking fish, together with the privilege of hunting, gathering roots and berries, etc., within the external boundaries of their reservation (as they were accustomed); and also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory. It seems to me that it assumes no control over Mother Nature, which the tribes had contended with since time immemorial…like droughts and reduced stream flows following the spring thaw/melt. Dams that were subsequently built, to reduce or prevent severe flooding during spring thaws, and to provide power in the form of electrons for toasters and TV’s, increased the ability of taking fish from the lakes they created – to make up for the drought periods in the natural streams when fish disappear (along with the water) during the long winter months. They didn’t name “Dry Creek” for nothing…..
The Winters vs U.S. case of 1908 gave birth to the “Reserved Water Rights” for Indian Reservations, ensuring that natural water flow feeding a reservation would not be impeded or denied said reservation by those outside it; it did not state, nor was it intended to provide for, more water than Mother Nature chose to deliver to the land; it was an Act to prevent the diversion of water before it entered the reservation. Funny how that concept gets twisted all out of proportion by those who would control life itself (life relies on water, it may be fair to say that who controls the water ultimately has control over life).
So, now we find ourselves fighting over the right to life with those who would pervert and deny it here on this reservation. The Winters Rights states that the “water needs” of a reservation must be “quantified” and sets conditions for such quantification. The Flathead Reservation was ordered by the Montana Supreme court, in 1973, to quantify their needs (not those of everyone else!); and again in 1995 and 2002 and 2004 ad naseum, to no avail. On Dec 19, 2002, Clayton Matt, tribal spokesman, stated “We’re going to go quantify our water and bring the numbers to you”, during one of the gazillion water compact meetings held over the past 10+ years on this reservation. So, where are the tribal quantification numbers? If they exist, they have yet to be made public.