Montana Free PressMontana Water Rights Protection Act [S.3019], would resolve a century-old water rights dispute and allocate $1.9 billion to settle federal damage claims and to rehabilitate the deteriorating Flathead Indian Irrigation Project. In exchange for the tribes’ agreement to relinquish claims to off-reservation water rights, the bill would also return control of the National Bison Range on the Flathead Indian Reservation to the tribes. The CSKT compact is one of several agreements between the state, the federal government, and individual American Indian tribes that seek to reconcile historic treaty agreements with Montana’s modern water rights framework, which treats water allotments as property rights and gives precedence to senior claims. Since narrowly passing the Montana Legislature in 2015, the CSKT compact has languished at the federal level. After Trump administration officials signaled support for the compact in November, Daines and Tester announced the legislation in December. Olszewski, R-Kalispell, has criticized the legal theory that forms the foundation of the CSKT compact, the notion that the 1855 Hellgate Treaty gives the CSKT water rights beyond the borders of the Flathead Reservation because the treaty guarantees tribal members the right to fish at “all usual and accustomed places.” “This discussion that the water is a treaty right is wrong,” Olszewski said Wednesday. Federal courts have held that identical language in other Indian treaties grants tribes “time immemorial” water rights to protect fisheries. As part of the compact negotiations, the CSKT have filed thousands of claims for off-reservation water rights in Montana courts, potentially limiting irrigation in 51 of the state’s 85 adjudication basins, according to the Montana Department of Natural Resources and Conservation. Those claims have been put on hold in the hope that a compact settlement will nullify them, avoiding the uncertainty, expense, and delay of litigation. Olszewski, though, said Wednesday he believes compact critics would ultimately prevail if the claims are litigated through the state legal system. “Our constitutional water rights are worth fighting for, even if it means going to court,” he said. “The people of Montana will pay for this, as we should — it’s our water.”
Also speaking at the event were Sen. Dee Brown, R-Hungry Horse, Public Service Commissioner Randy Pinocci, Lake County Commissioner Gale Decker, and Rep. Joe Read, R-Ronan. Brown joined Olszewski in questioning the nexus between water and the Hellgate Treaty, saying the treaty’s fishing provision shouldn’t apply because some other sections of the treaty, including one prohibiting liquor consumption on what’s now the Flathead Reservation, are archaic. “We can’t selectively say what is and what isn’t” in the treaty, she said. Decker said he worried about the potential for public land like Big Arm State Park to be passed to the tribes as part of the federal compact settlement arrangement. “That language is not at all in the bill and not in the senator’s plan,” Doyle said. Decker also said he’s concerned that jobs created by compact spending would bring new people and crime to Lake County. “We’re worried about our law enforcement, our drug trafficking, our human trafficking,” Decker said. Rep. Shane Morigeau, D-Missoula, who lobbied for the water compact’s approval before he was elected to the Legislature, called those and other arguments made by compact opponents misinformed. “The Legislature has spoken on this,” said Morigeau, who is a CSKT tribal member and a current candidate for state auditor. “It’s just an attempt to have another bite at the apple.” “There was a lot of damages and a lot of things that have happened through history, and I think the tribes, we’re ready to move on,” he said.
Eric Dietrich is a journalist and data designer based in Helena. He is the lead reporter on the Long Streets Project and also covers state policy for MTFP. He has previously worked for the Great Falls Tribune, Bozeman Daily Chronicle and Solutions Journalism Network. Contact him at firstname.lastname@example.org or 406-544-1074.
Note: This story originally appeared on Montana Free Press. It is published under a Creative Commons license.
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