Montana Free Press: CSKT Water Compact Clears Congress

by Eric Dietrich and Chris Aadland

Language putting a federal stamp of approval on the long-pending Confederated Salish and Kootenai Tribes water compact passed Congress late Monday night as part of a massive federal spending bill that also includes a new round of COVID-19 relief.

The spending package, the Consolidated Appropriations Act of 2021, now heads to the desk of President Donald Trump.

Federal endorsement of the compact puts the long-negotiated settlement between the tribes, the state of Montana and the federal government clear of one of its final hurdles, with only approval by the tribes remaining. If successful, the compact will reconcile wide-ranging water rights likely guaranteed to the CSKT under the 1855 Hellgate Treaty with modern-day water rights doctrine.

“This is one of the most significant days in the history of our people, and the one that will have a profound and positive impact on the future of the Flathead Reservation for the next century,” CSKT Tribal Council Chairwoman Shelly Fyant said during a Tuesday press conference. “This is such great news going into the holiday season and the new year. And I’m sure that the elders who participated in the negotiations over the past years are doing a victory dance.”

In exchange for relinquishing their claims to thousands of off-reservation water rights across the state, the tribes will receive $1.9 billion through a trust fund dedicated in part to rehabilitating the Flathead Indian Irrigation Project. The tribes will also regain control of the National Bison Range, reversing a 1908 federal land taking that was ruled unconstitutional in 1971.

Fyant said the bison range will be professionally managed for bison conservation and remain open to the public. “And who better to do it than the original inhabitants of the land who depended on the buffalo for centuries?” she said.

The CSKT now must approve the measure to officially end the saga of the compact’s negotiation. Fyant said the Tribal Council could either vote to ratify the legislation or put it to a vote by tribal members, but that leaders hadn’t yet decided which method to use.

The Hellgate Treaty granted the CSKT the right to hunt and fish in traditional locations both on and off the present-day Flathead Reservation in exchange for the tribes ceding more than 20 million acres of land to the federal government. Under Montana’s modern senior-user-takes-priority water rights system, those hunting and fishing rights translate to a “time-immemorial” in-stream water right – essentially a legal claim to keep enough water flowing in streams to support fisheries anywhere in the state historically occupied by the tribes.

According to the Montana Department of Natural Resources and Conservation, the CSKT have filed thousands of off-reservation water right claims that will require litigation if the CSKT-Montana Compact isn’t approved, potentially limiting irrigation in 51 of the state’s 85 adjudication basins. Under the compact, the tribes would relinquish the vast majority of those claims.

“We chose the path of negotiation,” Fyant said on Tuesday. “And now we can avoid decades of acrimonious litigation on streams across much of Montana and protect many streams with sufficient amounts of water to ensure that fish can survive.”

The compact passed the Montana Legislature in 2015 and has since been awaiting federal approval. Montana U.S. Sen. Jon Tester, a Democrat, introduced legislation to ratify the compact in 2016, but it languished without Republican support. Montana’s other U.S. senator, Republican Steve Daines, threw his weight behind a bill finalizing the compact last year.

The 80-page Daines-Tester bill, the Montana Water Rights Protection Act, was one of many miscellaneous measures moved through Congress as part of the federal government’s 5,593-page appropriations bill this week. In addition to allocating money to large swaths of the federal government, that package includes more than $900 billion in new COVID-19 relief spending. According to Govtrack, which tracks federal legislation, the combined package is the fifth-longest bill to pass Congress in U.S. history.

Daines and Tester issued a joint statement Monday night celebrating the compact’s passage.

“After years of hard work, the U.S. Senate just passed our bipartisan bill that permanently resolves the century long CSKT water dispute, and will soon become law,” Daines said in the statement. “Without our bill, thousands of Montanans would be forced into very expensive litigation and our ag economy would’ve taken over a one billion dollar hit.”

“This victory has been decades in the making, and is a huge win for Montana taxpayers, ranchers, farmers, and the Tribes,” Tester said in the statement. “Water is among our most valuable resources, and ratifying this Compact honors our trust responsibilities, creates jobs and invests in infrastructure while providing certainty to water users everywhere. I’m thankful we were able to work together to get this critical legislation across the finish line.”

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Opponents of the compact, most of them hardline Republicans, have criticized the legal theory underpinning the tribes’ claim and argued the settlement is unfair to non-tribal property owners. However, most state-level Republican officials applauded the congressional action as a milestone this week.

“I am glad we were able to get this done to bring certainty to Montana’s farmers, ranchers, the Salish and Kootenai tribes, and all the water users across the state,” U.S. Rep. Greg Gianforte, Montana’s Republican governor-elect, said in a statement. “Thank you to my colleagues in the Senate for their work on this legislation.”

“I cannot overstate the historic significance of this milestone in the 165 years since the signing of the Hellgate Treaty,” said Attorney General Tim Fox, also a Republican, in a statement. “I am grateful to Montana’s Congressional delegation for making this momentous occasion possible.”

Other groups including the Montana Farmers Union, Montana Wilderness Association, Montana Farm Bureau Federation and Montana Conservation Voters, had previously signaled support for the bill.

“We celebrate this historic victory with the leaders and people of the Confederated Salish and Kootenai Tribes, and with Senators Daines and Tester, who stood up for Montana to ensure passage of this important legislation,” Montana Conservation Voters said in a statement on Tuesday. “It is the product of government-to-government collaboration, resulting in a fair and equitable solution for sovereign tribal governments and their lands, for Montana’s shared public lands, for bison and other wildlife, and for the precious resource of water.”

For Fyant, Congress’ ratification of the compact was a sign a drawn-out process was finally nearing its end.

“It’s a huge relief,” she said. “I just think about the leaders before me and all the councils before us that had the foresight to start those negotiations.”