Water Over the Bridge



Indian and non-Indian interests are gearing up for what could be marathon talks with the state over who controls water on the Flathead Indian Reservation.

Millions of gallons that flow in streams and rivers across the reservation are at stake, as well as the water in Flathead Lake, where the Confederated Salish and Kootenai Tribes already exert jurisdiction over the southern half's bed and banks. Precious groundwater that lies beneath the land's surface also may be allocated, as well.

In recent months, tribal leaders have told the Montana Reserved Water Compact Commission, a branch of the state Department of Natural Resources and Conservation, that they're about ready to deal. But the task of hammering out who gets what of the life-giving liquid promises to be both complex and contentious, as long-standing disputes over reservation water and its management are expected to come to a head.

"I think we're going to have to be real creative up there," said Susan Cottingham, program manager for the commission, which will play a central role in water-rights talks with the tribes and the federal government. "There are a lot of very complicated issues there. I think it's going to be a long process."

The nine-member commission was established by the Montana Legislature in 1979 as part of the ongoing statewide stream-adjudication process. The panel's main duty is to negotiate settlements with federal agencies and Indian tribes that claim federal reserved water rights within the state. A primary goal, Cottingham said, is to avoid costly and divisive litigation.

The Legislature convened in special session in June to ratify a recently negotiated compact with the Crow tribal leaders over water rights on their reservation southeast of Billings. In recent years, agreements on the Northern Cheyenne, Rocky Boy's and Fort Peck reservations have also been approved at the state and tribal level.

"The Flathead obviously is going to be a difficult one," Cottingham said. "It's made more difficult by the fact the parties have been litigating for years. There's a lot of history there to overcome."

Reserved water rights are defined as those that are "implied from an act of Congress, a treaty, or an executive order establishing a tribal or federal reservation," including national parks and other federally managed areas, the commission says. The Flathead Reservation, created by the 1855 Treaty of Hell Gate, is intertwined with a raft of water claims, many of them created when land was opened to non-tribal settlement through federal allotment laws. Cottingham said the Salish and Kootenai Tribes, which retain rights for hunting and fishing off their reservation, may also claim some aboriginal rights to water, which could push seniority dates back even further.

The allotment legislation, which created the checkerboarded ownership patterns found on many reservations today, allowed individual Indians to own tracts of lands that were formerly held in common by their tribes. After a period, the owner could choose to keep the land under federal trust, share its title with relatives or friends, or sell it to whomever they chose. A main purpose of the legislation, which was backed by business interests, was to promote agricultural development, a concept that was decidedly foreign to many Indians who received land through the programs.

"It was nothing less than a subterfuge to break up reservations and open them," U.S. Interior Secretary Bruce Babbitt said of the allotment process during a June 25 visit to Montana. "It was a dagger aimed at the heart of American Indian culture."

Hand-in-hand with allotment legislation came federal irrigation programs. On the Flathead Reservation came the Flathead Irrigation and Power Project, which was authorized by Congress in 1908. The project eventually diverted most reservation streams into reservoirs and canal systems that now provide water to about 127,000 acres of land, about 85 percent of which is fee-patent and therefore privately owned. Most of the project's remaining acreage is held in federal trust for its tribal-member owners.

Fights over project management have been bubbling for years, and the tribes have won a bevy of court cases filed by non-Indian irrigators in hopes of usurping their authority. The irrigators are primarily organized under the Flathead Joint Board of Control, which represents members in three irrigation districts spread across the reservation. While the non-Indians have long tried to wrest the project from federal and tribal hands, the system is still maintained and managed by the Bureau of Indian Affairs, and most of the dams and diversions sit on tribally owned land.

Tribal leaders and a federal team of negotiators have met several times in recent years to outline the parameters of the upcoming talks with the state. Once negotiations formally begin, tribal officials said the public will be apprised of progress through jointly issued news releases.

While water management, especially fish-saving instream flows, will likely creep into the talks, the main issue facing negotiators is who gets water on the 1.2-million-acre reservation and-potentially-how much they get. Once a preliminary agreement is reached, it must be ratified by the Salish and Kootenai Tribal Council, the Legislature, Congress and the Montana Water Court before it goes into effect.

"It's a pretty involved amount of work," Cottingham said. "I think it's going to be a many-year process."


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