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Water Deal Between Tribes, State Passes First Hurdle

Three Republicans join Dems in sending controversial water rights measure to Senate floor

HELENA — State senators on Friday advanced a bill that would settle water rights on the Flathead Reservation among American Indian tribes, the state and federal government.

Members of the Montana Senate Judiciary Committee voted 8-4 to pass Senate Bill 262. Republican Sens. Doug Kary, Nels Swandal and bill sponsor Chas Vincent voted with Democrats to send the measure to the Senate as a whole, where it must pass by next Friday to stay alive.

The proposal would recognize the water use rights of the Confederated Salish and Kootenai Tribes in northwest Montana. It would cap the amount of irrigation water at levels consistent with current use and fund improvements to the irrigation system used by hundreds of farmers and ranchers.

Committee Chair Sen. Scott Sales voted against the measure, he said, because prior court decisions upholding the tribes’ seniority to off-reservation water are incorrect.

“The courts aren’t infallible,” Sales said. “Courts have made horrible decisions in the past.”

In his sixth term as a state senator or representative, Sales said he represents irrigators in Gallatin, Broadwater and Lewis and Clark counties. He said the right thing for his political career and the irrigators in his district would be to vote for the agreement.

“This is probably the worst political vote I’ll ever make in my life,” Sales said. He later added, “But my conscience won’t let me support this bill.”

Vincent said he has personally spent 500 hours poring over previous court rulings and treaties to make informed decisions in crafting the measure. One of the biggest changes to the current proposal, he said, is the ability of irrigators’ claims to water rights to go forward without giving up the water supplies protected under the bill.

Democratic Sen. Cliff Larsen of Missoula said the subject of Flathead water, which has been under consideration for decades, has been thoroughly vetted and is ready for legislative approval.

Republican Sen. Jennifer Fielder disagreed, saying it is not clear in the proposal that water users in her district of Thompson Falls will be guaranteed adequate supplies.

Fielder said the bill would allow the tribal government to spend money to influence the nomination of members to a water board that would be established for future water decisions. Her constituents may not be represented on those decisions, she said.

“They are fearful of being placed under the jurisdiction of a directly dominated administration,” Fielder said.

She and Republican Sen. Jedediah Hinkle argued that irrigators would have more control over their water use if it was not, as the compact entails, put in the hands of the federal government in trust for the tribes. Vincent said six Supreme Court rulings have shown that the tribes have senior water rights, which must be enforced through the federal government.

Fielder, Hinkle and Republican Sen. Kristin Hansen voted against the bill.

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