Note: Our thanks to Senator Verdell Jackson for this article in today’s Daily Interlake.
Like most proponents of the Salish and Kootenai water compact, Rick Hill in his recent letter to the editor used misconceptions and threats to support the compact because there is no legal basis for turning control of water use in Western Montana over to the tribes.
Hill first states that the Hellgate Treaty grants rights to claim water for the Confederated Salish and Kootenai Tribes both on and off the Flathead Reservation. The five-page treaty in fact does not mention water or water rights.
With the following language, Article III of the treaty gives, “the right of taking fish at all usual and accustomed places, in common with citizens of the territory.” This off-reservation fishing-right language is only found in the treaties in which Gov. Isaac Stevens was involved. The Hellgate and Judith River Treaties are the only “Stevens Treaties” in Montana. No settlement, litigation or case law has been able to stretch this language into an off-reservation water right.
The Salish and Kootenai compact would be the first and if successful the Blackfeet Tribe would likely be next. Their area of hunting and fishing is in the Judith River Treaty and covers about 8 million acres in Eastern Montana, starting at the main divide of the Rocky Mountains and stretching to the Musselshell River. Their compact has not had final approval because it has been withdrawn from congressional consideration at the tribe’s request.
Mr. Hill states that there is nothing in the compact that affects property rights. There are thousands of irrigators both on and off the reservation who would disagree with him. Irrigators on the reservation would lose their state-based water rights and receive a water allocation. A study just completed by Barry Dutton, a water expert, shows the compact cuts the water for the irrigation project by at least 50 percent of the historic delivery. Also, off-reservation irrigators in 11 counties can be ordered to stop using water during low river flows via water rights made out to the federal government in trust to the tribes. These irrigators lose property value because of the uncertainty of adequate water.
Most of the rest of Hill’s letter deals with the $55 million to be given to the tribes and the threat of thousands of water claims. The irrigation project on the reservation was developed and owned by the federal government. The state of Montana has never had the responsibility to maintain the project and I see no reason the taxpayers in Montana should do it now. That $55 million would go a long ways in defending our state-based water rights against tribal claims.
No tribe has been given off-reservation water rights on their traditional hunting and fishing territory because of the language in their treaties: “The tribes hereby cede, relinquish, and convey to the United States all their right, title, and interest in and to the country occupied or claimed by them.”
How does Rick Hill stretch this language into a water right for the Salish and Kootenai or Blackfeet tribes on their subsistence ranges? —Verdell Jackson, Kalispell