On the Flathead Reservation in Montana, to the Confederated Salish and Kootenai Tribes. Photo: Marc Moss
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Confederated Salish and Kootenai Tribes water compact survives legal challenge





A water compact between the Confederated Salish and Kootenai Tribes and state of Montana has survived an important legal challenge.

In a decision on Wednesday, the Montana Supreme Court said the agreement was constitutional. The outcome was near unanimous, with only one out of seven judges quibbling on a small portion of the historic deal.

“The decision of the Montana Supreme Court to uphold the constitutionality of the compact speaks to the thorough and thoughtful construction of this critical agreement,” Shelby DeMars, a spokesperson for Farmers and Ranchers for Montana, a group that supports the deal, said in a press release. “After more than a decade of negotiations, the resulting settlement will protect existing water rights, prevent decades of costly litigation, and invest in critical infrastructure in our state.”

Despite the court win, the water compact must still be approved by Congress. A bill to ratify the settlement was considered during the last session but ran into opposition from the Obama administration due to the high cost.

A new version has not yet been introduced in the 115th Congress. Unless the deal is ratified, tribal leaders say the federal government remains on the hook for billion of dollars in treaty-related damages.

"These federal actions had and continue to have disastrous impacts on our tribal people that this legislation will finally begin to correct," Chairman Vernon Finley told the Senate Committee on Indian Affairs at a hearing in June 2016.

The lawsuit was filed by the Flathead Board of Joint Control, which oversees irrigation districts on the Flathead Reservation. The board claimed the compact was unconstitutional because a certain provision waives the state's sovereign immunity.

Under the Montana constitution, such provisions are to be approved by a higher threshold vote in the state Legislature but that never happened when the compact was finalized at the state level in 2015.

But Montana Supreme Court disagreed with the group's argument, saying the provision at issue does not create any new immunities and therefore didn't need to be approved by a two-thirds vote. Six justices agreed on this point.

"The provision on its face does not provide any new immunity to the state of Montana or to any other governmental entity," Chief Justice Mike McGrath wrote for the court.

Justice Jim Rice filed a dissent, saying the provision should have been put to a two-thirds vote in the Legislature. At the same time, he said the provision could be stricken from the agreement without derailing the overall compact.

Montana Supreme Court Decision:
Flathead Board of Joint Control v. State of Montana (November 8, 2017)
Synopsis of the Case (November 8, 2017)

Related Stories:
Tom Beck: Tribal water rights deal boosts economy in Montana (July 11, 2016)
Confederated Salish and Kootenai Tribes press for water deal (June 30, 2016)