"Great Water Debate" continues

The Confederated Salish and Kootenai Tribal Water Compact is a 1,200 plus page document that if passed by the state senate or through the courts could have a permanent impact on water rights throughout Montana.

In an effort to educate the public on the potential impact of the CSKT Compact, members of the Concerned Citizens of Western Montana have been travelling throughout the state to give presentations. On July 12, Terry Bax and Kate Vandermore, along with Senator Jennifer Fielder, attended the regularly scheduled meeting of the Mineral County Commissioners to present county officials with their concerns.

“One of the things that we have been hearing throughout this process is that this (the CKST Compact) is just like any other compact,” Bax said. “When we actually went in and looked at the 1,200 pages of water abstracts that are in the appendices of the compact, you can very quickly see that this is absolutely nothing like any of the other tribal compacts in the state.”

Bax began by mentioning a copy of a water right issued in Sanders County. This water right was received by the Concerned Citizens of Western Montana and includes a disclaimer now included by the state, which clarifies the right is potentially subject to the CKST Compact and rights the tribe will receive if the compact passes.

This example was used as evidence of the far-reaching impact the compact would have on water rights throughout the state.

Sen. Fielder gave a brief history of the compact and its status in the Montana legislature, stating the compact was received to be discussed and voted on in late-March. With the legislative session ending in April, Sen. Fielder said there was “no time” for legislatures to understand and comprehend the compact before it was voted on.

“The tribes and the governor’s representatives wanted it passed now,” Sen. Fielder said. “It was this or it was nothing and I just felt like that wasn’t fair. It wasn’t fair to us as decision and policy makers and it wasn’t fair to the citizens that didn’t even know what was coming.”

With that in mind, legislatures worked to advocate for an interim study of the compact by an independent legislative body, which passed in the legislature but was vetoed by the governor.

“Fortunately the legislatures did not pass the compact despite tremendous pressure to do so,” Sen. Fielder said. “We realized that this was way to big of an issue to go into and approve. The thing about it…it will undo everything that has come before it in terms of congressional acts and laws and will become supreme law. It is very permanent.”

Kate Vandemore, who has worked with tribes throughout the nation on water compacts and has concerns about the CKST Compact, has been volunteering to look into the document along with the citizens group and helped draft an alternative to the compact that addresses those concerns.

“One of the major concerns is we are talking about a federally reserved water right, which means it is really the federal government that owns the water on behalf of the tribes,” Vandermore said. “Any off reservation waters that are awarded are going to belong to the federal government.”

In her many years of working with tribal water rights and advocating on behalf of the tribes for those rights, Vandermore said she has “never” seen anything similar to the rights proposed in the CKST Compact.

The first of the proposals in the compact that is unique is the amount of water itself – over 48 million acre-feet of water.

“That’s like covering 48 million acres of land with one-foot of water,” Vandermore said. “This 48 million is 48 times the amount ever given to any individual tribe.”

Vandemore added that she is “quite aware” tribes have no rights over non-tribal members living in and around reservation land and if the CKST is given the authority stipulated in the compact “you can believe every other tribe in the United States will say ‘we missed out.’”

“This is not your average compact,” Vandemore said. “But when you get to the depth of this it is unbelievable to me that this almost got passed and I am very grateful to have the opportunity to talk to you about this.”

Over the past year, Vandemore and other volunteers have reviewed the compact and gave four focal points of their research that raised alarms:

• The CKST owns all of the water and land on the reservation “irrespective” of the fact the land was opened to non-Indian settlement and 40 percent of the land is under private ownership.

• Instead of quantifying the federal reserve water right (a certain amount of water set aside by the federal government for specific purposes), the CKST Compact takes it all and states they will lease some of it back to irrigators.

• Creates a CKST Unitary Management Ordinance which appoints a board and a Tribal Water Engineer to manage all water uses, water use disputes, and future water development on the reservation.

• CKST has asserted claims to approximately 22.4 million acre-feet of instream flows affecting eleven counties and eight major river systems in western Montana

After the discussion on the four points of contention the citizen’s group has with the water compact, Commissioner Roman Zylawy asked for clarification as to what in the document makes the water rights so far reaching that it would effect the Clark Fork River.

“They are basically saying that aboriginal territory, which they ceded, has a water right and where we disagree is that the treaty (Treaty of Hellgate, 1855) said you can take fish and hunt and have the privilege of hunting in common with citizens of the territory,” Vandemore said. “That right to take fish does not translate into a water right.”

“That would be equivalent to saying then because you have the right to hunt here you own the land,” Commissioner Zylawy replied.

Further discussion on the compact and its potential impact on Mineral County was had prior to Sen. Fielder requesting that the commissioners provide a statement on how the county feels and perhaps suggesting an alternative.

“It would be at least suggested that this letter suggest an exploration of alternative compacts,” Bax said.

The commissioners agreed to prepare and submit a statement to the legislature and the meeting concluded.