Opponents of the Confederated Salish and Kootenai Rribes Water Compact have such a weak case that they decided to hire an out-of-state consultant for some fresh ideas. The problem is, so far, their consultant has shown a complete lack of understanding of water law and Montana water rights. She is trying to make the case that the Tribes have no water rights off the Flathead Reservation. That argument is has been made before in Stevens Treaty litigation and lost every time.
In 1980, the 9th Circuit Court found that if a Tribes’ treaty rights include the right to fish at usual and accustomed places, this includes a right to protect instream flows for fish. The Montana Supreme Court has found that tribal fishing rights include protection from depletion of streams below a minimum flow needed by fish.
Creation of a reservation does not abrogate rights to hunt and fish off the reservation. The compact does not give the Tribes any new rights, nor does it take anyone’s existing rights. Montana, under the compact does not “cede” anything to the Tribes. In fact, the exact opposite is true. The Tribes are agreeing to give up nearly all of their existing rights off the Flathead Reservation forever in order to secure a better water rights system on the reservation.
Under the Montana Water Use Act, tribes have until June 30, 2015 to come to an equitable agreement with the state and federal government to quantify their water rights. If the compact fails to be ratified by the Montana Legislature, the Tribes have no alternative but to quantify their rights through legal action. This is not a scare tactic, this is reality. This compact is the 18th and final reserved water rights agreement to be negotiated by the Reserved Water Rights Compact Commission. Some believe that Indian tribes should have no rights at all in Montana, but this negotiated agreement is good for water, good for water users, good for fish and good for Montana.
LaVerne Sultz
Kalispell