The Confederated Salish and Kootenai Tribes Fight for Quantified Federal Water Rights in Montana: A Contentious History

November 10, 2013

This year the Confederated Salish and Kootenai Tribes (CSKT) hoped they would finally quantify their federal water rights after decades of legal and political battles. The CSKT, the federal government, and the state of Montana were on the precipice of entering into a Water Rights Compact that would quantify the CSKT’s right to waters on and off the Flathead Reservation in Montana. The CSKT’s water rights have been considered complicated because the CSKT members who reside on the Flathead Reservation are outnumbered by nonnative residents and because the Hellgate Treaty that established the Flathead Reservation provides the tribe access to waters located beyond boundaries of the reservation. Unfortunately, in April 2013 Republicans in the Montana State Legislature blocked several bills that would have ratified the Water Rights Compact. As a result, the CSKT, the state of Montana, local landowners, and the federal government have years of costly litigation ahead of them.

HISTORY OF THE CSKT AND THE FLATHEAD RESERVATION

The CSKT comprises the Bitterroot Salish, the Pend d’Oreille, and the Kootenai tribes(www.cskt.org/). The CSKT ancestors’ aboriginal lands were located in what is now western Montana, portions of Idaho, Wyoming, and British Columbia and exceeded 20 million acres. On July 16, 1855, the Hellgate Treaty—ratified by the US Senate and signed by President Buchanan Apr. 18, 1859—established the 1.3 million-acre Flathead Reservation (Treaty of Hellgate, 12 Stat. 975, 976). The reservation, located in northwest Montana, spans four counties; Lake, Sanders, Missoula, and Flathead.

Today, nonnative CSKT residents outnumber the CSKT members on the reservation by an estimated margin of two to one (Helena Independent Record, 2011). This unfortunate state of affairs occurred when the Dawes Severalty Act of 1887 (24 Stat. 388, ch. 119, 25 USCA 331, Acts of the 49th Congress, Second Session; enacted Feb. 8, 1887) was extended to the Flathead Reservation through the1904 Allotment Act (H.R. 12231, Public, No. 159, 33 Stat., 302, 58th Congress, Second Session). The Dawes Act, named after Senator Henry Laurens Dawes from Massachusetts, allowed lands previously protected in trust for Indians (in the parlance of the day) to be surveyed, assigned, and owned by individual Indians directly rather than in trust for the benefit of a tribe as a whole. Once land had been owned by an Indian for at least 25 years, the land could be forever alienated by the Indian owner and could be transferred to third parties. The Dawes Act allowed the government to purchase land that had not been allotted to individual Indians and later give those lands to non-Indians for settlement. Section 5 of the Dawes Act provided in pertinent part

[t]hat at any time after lands have been allotted to all the Indians of any tribe as herein provided, or sooner if in the opinion of the President it shall be for the best interests of said tribe, it shall be lawful for the Secretary of the Interior to negotiate with such Indian tribe for the purchase and release by said tribe, in conformity with the treaty or statute under which such reservation is held, of such portions of its reservation not allotted as such tribe shall, from time to time, consent to sell, on such terms and conditions as shall be considered just and equitable between the United States and said tribe of Indians….

The 1904 Allotment Act, advanced largely through the efforts of Senator Joseph M. Dixon of Montana, extended the Dawes Act to the Flathead Reservation and essentially carved up the reservation lands for settlement by non-Indians. (The 1904 Allotment Act [§§9] states that it is “an act for the survey and allotment of lands now embraced within the limits of the Flathead Indian Reservation, in the State of Montana, and the sale and disposal of all surplus lands after allotment.”) After the act was passed, the “surplus” land not allotted to individual Indians was eventually homesteaded by non-CSKT members. As a result, the CSKT now finds itself a minority on its own reservation. This has complicated the CSKT’s quest to quantify its long-overdue right to water—and this history has set off a contentious debate over the quantification of tribal water rights on and off the Flathead Reservation.

HISTORIC WATER RIGHTS LITIGATION

The CSKT’s journey for quantified water rights began in the courts more than three decades ago when the United States, on behalf of the CSKT, filed a lawsuit in US District Court for the District of Montana to establish a final determination of the tribe’s respective water rights {United States v. Abell, No. CIV-79-33-M, filed April 5, 1979, stayed in 1983 pending the outcome of the Montana State Court Water Adjudication proceedings; see also Northern Cheyenne Tribe v. Adsit, 721 F.2d 1187 (9th Cir. 1983) and State ex rel. Greely v. Confederated Salish and Kootenai Tribes of the Flathead Reservation et al, 219 Mont. 76, 89-90, 712 P.2d 754, 762 [Mont. 1985]). The Montana Supreme Court determined that the Montana Legislature’s adoption of the Water Use Act (Title 85, Chapter 2 Surface and Ground Water, Montana Code Annotated [MCA]) demonstrated Montana’s consent “to Congress’ grant of state jurisdiction over Indian reserved water rights” (Confederated Salish and Kootenai Tribes of the Flathead Reservation, 219 Mont, at 88-89).

Under this reasoning, the court determined that Montana’s water courts could exercise jurisdiction over the adjudication of tribal reserved water rights. The Montana Supreme Court also acknowledged the existence of tribal water rights and their superior water priority dates created by the establishment of a reservation (“Priority date for use of water by Indian reservation is the date that reservation was created if use for which water was reserved is a use that did not exist prior to creation of reservation” [Confederated Salish and Kootenai Tribes of the Flathead Reservation, 219 Mont, at 92]) and under treaties (“When existence of a preexisting tribal use of water is confirmed by a treaty, priority date is time immemorial” [Confederated Salish and Kootenai Tribes of the Flathead Reservation, 219 Mont, at 92]; see also Winters v. United States, 207 U.S. 564 [1908], which discusses reserved water rights; United States v. Anderson, 736 F.2d 1358 [9th Cir. 1984], which discusses water rights on homestead properties; Joint Board of Control of Flathead, Mission and Jocko Irrigation Districts v. U.S., 832 F.2d 1127 [9th Cir. 1987], which discusses aboriginal water rights for pretreaty purposes; and Colville Confederated Tribes v. Walton, 647 F.2d 42 [9th Cir. 1981], which discusses water rights allotments).

MONTANA RESERVED WATER RIGHTS COMPACT COMMISSION

In response to the federal litigation, Montana set up the Montana Reserved Water Rights Compact Commission (RWRCC) under 85-2-702(1) MCA, chapter 697, Laws of Montana 1979. The RWRCC was created by the Montana Legislature to “conclude compacts for the equitable division 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). The RWRCC has completed 15 compacts among six tribes (Assiniboine and Sioux Tribes of the Fort Peck Reservation, Northern Cheyenne Tribe, Crow Tribe, Gros Ventre and Assiniboine of the Fort Belknap Reservation, Chippewa Cree of the Rocky Boy’s Reservation, and Blackfeet Tribe) and five federal agencies (National Park Service, US Fish and Wildlife Service, the Bureau of Land Management, US Agricultural Research Service, and the US Forest Service) within Montana.

THE WATER RIGHTS COMPACT: CURRENT LEGAL CHALLENGES

In an attempt to avoid having the CSKT’s water rights determined by a court, the CSKT, the RWRCC, and the United States have negotiated the “Proposed Water Rights Compact entered into by the Confederated Salish and Kootenai Tribes, the state of Montana, and the United States of America,” which would have become effective on ratification by Montana, the United States, and the CSKT.

However, on Dec. 12, 2012, a group of landowners located within the Flathead Reservation organized as the Western Montana Water Users Association, filed a writ of mandate and a complaint for injunctive declaratory relief in a Lake County Court objecting to a water use agreement negotiated by the Flathead Joint Board of Control. The water use agreement was proposed for attachment to the Water Rights Compact. On Feb. 15, 2013, Judge C.B. McNeil issued a writ of mandate enjoining the defendants (Mission Irrigation District, Jocko Valley Irrigation, Flathead Irrigation District, and the Flathead Joint Board of Control) from “entering into the draft agreement between the Confederated Salish and Kootenai Tribes of the Flathead Nation, the United States, acting through the Bureau of Indian Affairs of the United States Department of the Interior, and the Flathead Joint Board of Control of the Flathead Mission, and the Jocko Valley Irrigation Districts” (Writ of Mandate, p. 8, Feb. 15, 2013). On Feb. 26, 2013, the CSKT petitioned the Montana Supreme Court requesting that it review McNeil’s mandate. Within 24 hours of the CSKT’s petition, the Montana Supreme Court issued a stay in the case and ordered McNeil, the Joint Board of Control, the Western Montana Water Users Association, and the Montana Attorney Generals Office to respond to the tribe’s petition by Mar. 14, 2013. The Supreme Court’s expeditious handling of the case illustrates the importance of theissues decided by the Water Rights Compact. A lengthier opinion is expected but was not available before this article was published.

CONCLUSION

Establishing water rights without court involvement gives the parties flexibility to control the outcome and reach a negotiated agreement rather than have a result imposed on them by a court of law. Now that it is clear that the Water Rights Compact will not be adopted by the Montana Legislature, it is likely that the federal government and the CSKT will be forced to take action to address the “adequacy of the current interim instream flows, and the need to implement efficiencies and other measures within the federal Flathead Indian Irrigation Project” (Mecham, 2013). Upon defeat of the Water Rights Compact, the CKST wrote an open letter thanking all legislators who had supported the compact. Water rights are fundamental for a tribe to progress, enhance, and protect its natural resources. A utility must understand the quantified and unquantified tribal water rights that can influence the utility. A water rights compact quantifies a tribe’s right to water in given situations and creates formal relationships that can prevent costly and time-consuming lawsuits in the future. The uncertainty of unquantified tribal water rights can result in litigation and decreased real estate values and present utilities with an ongoing administrative nightmare. Without certainty to the CSKT’s water rights, these administrative headaches will continue to hurt the CSKT and Montana. With the Montana legislative session in full swing, the CSKT’s Water Rights Compact discussions will be interesting and lively.