Water of life

To the Confederated Salish and Kootenai Tribes, water is more than what flows through the ground.
“This is a very sacred thing,” said tribal council member Reuben Mathias.
“We have to keep that in mind at all times,” Mathias continued.
“Without (water), we would perish.”
Mathias spoke at the close of the most recent water rights negotiating session between the CSKT, the US Department of the Interior and the State of Montana, over rights to the irrigation and ground water on the Flathead Reservation.
Mathias voiced the sentiment that flowed as a chilling undercurrent throughout the formal meeting.
Water is a limited resource. Without it, the present system of agriculture, future economic and community development, recreation and wildlife will all be dramatically impacted.
Whoever controls the Flathead’s water, holds the controls to so many of these other aspects of life.
Tension at the meeting over who had ultimate ownership of the water was anchored in that awareness.
The issue is rooted in “priority use rights.” Who had rights to the water first? Who first used it?
The tribes assert that “the US Government made a promise to us that everything on this reservation would be ours, to keep our people from perishing,” said Mathias.
That includes the water.
However, there are plenty of non-tribal users of water on the Reservation, and the negotiations are aimed at providing that all water users are given a fair claim to their historic use.
The situation is complex, and results from a reallotment of tribal lands carried out by the US government in the earliest 1900’s, as the Flathead Valley became more desirable for homesteading.
According to John Carter, lawyer for the tribes, reservation land was allotted to individual tribal members beginning in 1904.
The Flathead Allotment Act also “directed the US government to build an irrigation project for the benefit of the Indian people,” he said. Three-fourths of the service of this project was intended for Indian use, although, over time, “many of those uses went to non-Indians,” Carter said.
In 1910, after the allocation of specific lands to individual tribal members was completed, remaining non-allotted reservation land was opened to homesteading. Until then, there were no non-Indian inholdings on the land.
As a result, the Flathead Reservation is unique: home to tribal members, diverse communities, and plenty of non-tribal landowners within the boundaries of an Indian reservation.
It is the state’s job, according to Chris Tweeten, chair of the Reserve Water Rights Compact Commission, to ensure that those non-tribal users keep the rights to their water. The state proposed applying the management scheme it developed on other reservations to the Flathead.
But Carter said that wouldn’t work here, given the diversity of ownership issues. “The ability to administer based on a fence line gets very complicated,” he said.
The irrigation project uses 95% of the surface water within the reservation boundaries. As that project was intended to provide for tribal use, tribal members have priority rights to that water, Carter said.
“Why are you guys arguing over all this water and stuff, when it belongs to everybody?” Mathias asked. As for desiring control over the water, he said the tribes were not being greedy, but looking to protect the resource.
“We need to share this for all people, not just for today, but for the future. For our children’s children’s children.”
To that end, the Tribes brought forth a proposal at the meeting that would grant all users within the historic irrigation project boundary an equal priority use date. According to Carter, that would account for 96% of the users on the Reservation.
The Tribes are also proposing uniform management, between themselves and the state, in addition to the uniform priority date.
Carter acknowledged selecting a court for the settling of any outstanding cases is a challenge, as there are three legal jurisdictions involved, and any court can hear the cases.
After mentioning a litigious case on the Wind River Reservation that has, thus far, cost water users $40 million, Carter proposed all settlements be handled in federal court for uniformity’s sake.
Federal attorney Duane Mecham stated US Department of the Interior would be fine with this.
Because “pictures explain things better than lawyers do,” Carter offered a flip chart graphic of the proposal. On the map, red and brown lands represent non-Indian holdings, while green and yellow lands are those still under tribal control.
Lands that were once allotted to tribal members, but have since passed out of tribal ownership, still hold a priority date of the origin of the reservation, according to a Ninth Circuit Court decision based on a similar case on the Coleville Indian Reservation, said Carter. However, land acquired under the 1910 Homestead Act can have no water right prior to the opening of the reservation to white settlement.
Carter said the more recent priority date would apply to half the water users on the reservation. If litigated, “half the non-Indian people will get a significantly shorter priority date,” he said.
“That’s the risk we all face if we litigate this. Non-Indian owners of land might get shorted all together.”
Tweeten, speaking for the state, said they appreciate the “positive change in the tribe’s approach,” and though they would consider the arrangement, he said “We’re not prepared to say with any finality that the proposal that the tribe has laid out is the framework upon which this agreement will be built.”
While the state disapproved of previous plans, Tweeten acknowledged they saw no blatant problems with this new proposal, but “that’s not to say that there may not be matters that come to light. For now, we’re prepared to go forward and analyze the tribe’s proposal.”
Clayton Matt, the head of CSKT’s Natural Resources Department, repeated “what I take from your comments is you see no deal breakers and we can use this as a basis for discussion.”
Tweeten answered, “That’s correct.”
Mecham wanted to be sure the proposal met present and future water needs, but remarked it “proposes to acknowledge valid existing rights.”
However, he said additional water sources are generally needed for these settlements.
Fisheries uses, future growth of communities and agriculture and considering water allocation in years of shortage must all be considered as well, participants agreed.
The Tribes agreed to negotiate with the state on utilizing staff on hand, for water data analysis and hydrogeology work.
Susan Cottingham, director of the RWRCC said, “We both have competent hydrogeology staff. We should think about how we can put our staff together to make the best use of their talents.”
She remarked that the simplicity of the plan is appealing.
“It would give everyone on the project a comfort level.”
Matt stated the Tribal Council has already dedicated funds and have a contractor who has started the process. However, he said, “We’re ready to accept any contribution and help, and we’re proceeding.”
Tweeten replied that the state is “not ready to contribute, but will contribute contracted staff.”
He also reminded people that when it comes to court challenges, individual users are on their own. “Each user must defend their own claim,” he said. The state would not be defending individual water users in court.
Technically, Tweeten said, negotiations terminate on July 1, 2009.
All parties hope to have the water rights compact issues settled before then.
The next negotiating meeting was penciled in for Dec. 12, 2007.