©2014 Concerned Citizens of Western Montana

[Author’s note: For those who follow anything and everything on water, this post would catch your eye.  However, for most people, it must be a real sleeper! 🙂 ]

Negotiation of Indian water rights settlements in Montana was initiated formally by the MT State Legislature in 1979 in the context of the Montana General Stream Adjudication, where everyone’s water rights in Montana are being adjudicated (determined in a court of law) by the Montana Water Court.  The legislature created the Montana Reserved Water Rights Compact Commission.  From their webpage,

The Reserved Water Rights Compact Commission was created by the Montana legislature in 1979 to:

  • conclude compacts for the equitable division and apportionment of waters between the State and its people and the several Indian Tribes claiming reserved water rights within the state (MCA 85-2-701), and
  • between the State and its people and the federal government claiming non-Indian reserved waters within the state (MCA 85-2-703).

A federal reserved water right is a right to water that is created when Congress or the president reserves land out of the public domain. These rights must be resolved as part of Montana’s statewide adjudication process.

The above website description of a federal reserved water right is technically correct, and, in other words, the  basis of a reserved water right is that the federal government, i.e.,  Congress or the President, acted to reserve land. Reserved rights belonging to Indians are also ‘federal’ reserved water rights, and the federal government holds these reserved water rights in trust for the Indians. When the federal government reserved the land, it impliedly reserved the amount of water necessary to fulfill the reservation’s purpose.

The quantification of a federal reserved water right on an Indian reservation usually follows a well-established route of determining the purpose of the reservation, the amount of water required to fulfill the purpose, measuring existing uses, and providing for future uses.   The purpose of the reservation is determined by examination of the treaty or Executive Order establishing the reservation, and is a both a technical exercise (determining amount of water to fulfill the purpose of the reservation ) and an economic exercise (future growth and economic opportunities). Whether in negotiation or in a general stream adjudication, the course of quantification commonly involves the same kind of examination and approach albeit at different levels of examination.  And a federal reserved water right can only exist on land owned by the federal government.

Here is an example of discerning the purpose of the reservation from Treaty language applicable to the Nez Perce Tribe (Snake River Basin Adjudication) and the Confederated Salish and Kootenai Tribes’ (CSKT) Treaty of Hellgate.  Both treaties are “Stevens Treaties”, and contain similar language in Article III regarding the sharing of off-reservation fishing and hunting with the citizens of the territories (state)

Determining purpose of reservation from treaty language

We reported earlier that the Water Policy Interim Committee had established a CSKT Compact technical working group  in response to the questions submitted to WPIC by Representatives Nancy Ballance and Keith Regier.  This group received a briefing on the subject of federal reserved water rights on June 25, 2014.

In June 2013, Concerned Citizens was approached by a few state legislators and asked to identify a comparative look at the CSKT Compact and to suggest what the federal reserved rights water award would look like if the standard procedures for quantification of Indian federal reserved water rights had been followed. The stark difference between the CSKT Compact and all other Tribal Compacts in Montana, indeed, the United States, mandated the development of a comparative analysis, as well as the Compact Commission’s assertion that the current compact was the only alternative.  The Compact Commission deviated markedly from the standard course it had followed in other Tribal compacts in Montana in its development of the Flathead Water Compact, as shown below:

slide comparison

A copy of the comparative compact can be found at this link.

The Comparative Compact recommends that the dual sovereign water management system used in every other compact be used here, where the state manages all its uses and the Tribes manage their own uses. The proposed existing CSKT Compact replaces state water administration with a new system and a politically appointed board.

While it is recognized that the proposed CSKT Compact resulted from negotiation that took place over many years, negotiation in and of itself does not authorize proceeding without guidelines or a complete departure from established law.  The choice of which path to proceed down for the resolution of this issue is ultimately up to the state legislature and our legislators.  Make sure they know what is truly at stake (hint: its not money).

Quantification Powerpoint Presentation in PDF Format
Link to WPIC Technical Working Group Meeting  Scroll down to video recording for 06/25/14