CSKT Water Compact: Good for Water, Good for Fish, Good For Montana

For more than three decades, the State of Montana and the Federal Government have worked hard and long to negotiate fair and impartial water rights agreements on Native American reservations across the state. Six of seven tribal water compact agreements have been successfully negotiated and passed the Montana Legislature.

The final water rights compact with the Confederated Salish and Kootenai Tribes goes to the 2015 legislative session for ratification. Following ratification by the legislature, the compact must still overcome hurdles in the U.S. Congress, the Montana Water Court and finally by the CSKT Tribal Council.

The purpose of the negotiations and the compact is to quantify tribal reserved water rights. When a federal reserve, such as an Indian reservation, a national forest, national park, or waterfowl refuge is created, it creates a federally reserved water right for water needed to successfully operate the reserve. Those water rights exist by law, but have never been quantified. There are basi-cally two ways to quantify the water rights; by adjudication in state or federal courts, or through negotiations between the tribes, the state and the federal government. In 1979, the State of Montana created the Reserved Water Rights Compact Commission to negotiate and resolve water rights on 18 federal reserves in Montana, including seven Indian reservations. All of those agree-ments have passed the Montana Legislature, except for the agreement on the Confederated Salish and Kootenai Reservation.

Unlike treaties for other tribes in the state, the Hellgate Treaty of 1855 contained what has been termed “Stevens language” giving tribes “the right of taking fish at all usual and accustomed places, in common with citizens of the Territory,”

This language, which is contained in all treaties negotiated by then Washington Governor Isaac Stevens, has been interpreted by various federal courts to give tribes the right to hunt and fish within their historical areas both on and off reservations. Courts have further de-fined the language to provide tribal rights to water in those streams that is sufficient to sustain fish populations. This language gives members of the Confederated Salish and Kootenai Tribes legal rights to a limited amount of water in most streams in Western Montana and extending as far as the Yellowstone River. Through the negotiated agreement in the CSKT Compact, the tribes cede to the State of Montana all of their off-reservation water rights with the exception of a few instream-flow rights on streams west of the continental divide.

The Compact also creates a Unitary Management Ordinance along with a management board to administer water rights on the Flathead Indian Reservation. The board is composed of five members, two appointed by the Tribal Council, two appointed by the Governor from a list recommended by county commissioners and one member chosen by the other four. DOI would appoint one non-voting member to sit on the board. On-reservation water rights are subject to the same Montana water laws as all those off reservation with the same rights to contest decisions to the Montana Water Court. The CSKT Compact does not take away any existing state-based water rights.

There has been a lot of contention about this final compact along with a lot of misinformation. Much of the objection to this compact is based on misunderstanding
of the treaty or the compact language along with some intentionally misleading statements and fear of change.

The Compact does not create any new water rights. Tribal rights already exist in settled law and would actually shrink under the Compact. All state-based water rights, both on and off-reservation are completely protected.
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The Compact does not change jurisdiction over anything off the Reservation. The Tribes get no new say over water rights, water quality, species management or anything else off the Reservation .

The Tribes cannot call water rights for stock water, municipal use, domestic use, industrial use, or other non-irrigation uses either on, or off the reservation.

The Water Management Board will have no jurisdiction off the Flathead Reservation. Due to a Montana Supreme Court decision, there has been no way since 1996 to legally file for a water right on the Flathead Reservation. The Unitary Management Ordinance will rectify that situation and allow for common sense regulation of on-reservation water rights by an entity controlled jointly by the State and Tribes.

Non-Indian irrigators on the Flathead Indian Reservation who receive an allotment from the Flathead Indian Irrigation Project (FIIP) do not have a compensable property right to the water they receive. They have a legal agreement to their water allotment, but that is not the same as a state-issued water right. So, no property rights are being taken by the compact. If the CSKT Water Compact is not ratified by the Montana Legislature, the Tribes have a deadline of June 30, 2015, by law, to file for their water rights through state courts. In the event that the Tribes have to follow the adjudication process through the courts, it is likely that they will file for far more water rights than they would receive via the negotiated compact. This process will require that existing state water rights holders will have to file lawsuits to defend their legal water rights. They will be defending their water right against a senior water rights holder with an effective date of “time immemorial” as outlined in the Hellgate Treaty and upheld by several federal courts. At best, this legal process will take decades to wend its way through the Montana Water Court and likely through state and federal courts. The process will involve hundreds, if not thousands, of court cases costing water users millions of dollars and making property rights attorneys million-aires and the final outcome will benefit nobody.

Flathead Valley Trout Unlimited urges you to follow this process very carefully as it moves through the Legislature and make your views known to your local representatives.

For more information:
The Montana DNRC website has all the Compact documents and a good overview of the Compact process:

The CSKT website has many good documents:

Montana Water Stewards is a non-profit, bipartisan group following the Compact process very carefully and they have lots of excellent information and explanations on the Compact.