Absolute control of surface and ground water for irrigation both on and off the Flathead Indian Reservation Tribe in western Montana appears to be the goal of the CSKT Compact, which affects 350,000 people in 11 counties. Although not specifically written into Indian treaties, judges have ruled that water is needed to make land productive in order to fulfill the purposes of any federal reservation of land. Therefore Indian reservations are entitled to “federal reserved water rights” to meet the purposes of their reservations which in most cases are for agriculture as emphasized in the Hell Gate Treaty. The water is to make the reserved land productive. It is not a legitimate purpose of the Reservation to develop a water market and lease the water that is supposed to go with the reservation land to make it productive, especially to people who have lost their access to water because of the Compact.
The Flathead Reservation was opened to settlement in 1909 by Presidential Proclamation with the promise that the federal government would plan and fund the construction of the Flathead Irrigation Project (FIP), along with Kerr Dam to serve all interests, Indian and non-Indian alike. Approximately 128,000 acres of land on the reservation are irrigated with 500,000 to 750,000 acre feet of water out of the Mission Mountains supplemented with some water out of the Flathead River.
The reservation is presently very productive with most of the irrigable land being farmed producing cattle, feed crops and vegetables. If more irrigable land could be identified that is not being irrigated, additional water can be obtained by quantifying (justifying) an amount based on historical irrigation data.
Instead of going through this process to expand the number of acres irrigated and increase the amount of irrigation water made available on the reservation, the Compact gave the state based water rights of the irrigators to the Tribe in return for a water allowance of 1.4 acre feet per acre for a total of 179,000 acre feet with no assurance that the water would be passed to heirs with the land.
Gov. Steve Bullock and Attorney General Tim Fox supposedly came to the aid of the irrigators and replaced the water right with a water delivery right. Also, Montana taxpayers will give $30 million to pump water and the compact will save you years of expensive litigation. This seems like great news to short-sighted people who do not value property rights; however, the Tribe has been given the state based water rights in the Compact and they are in control of the amount of water irrigators get in the future. Also, the project loses most of its water via the 1.4af per acre water allowances. Only 179,000af is available and the remainder of the historical use goes to in-stream flow: about 321,000af in wet years and 571,000af in dry years. Tribal control of water both on and off the reservation creates their water market. Adjudication by the Montana Water Court (not litigation as threatened) is where the State of Montana has an obligation to defend and protect state based water rights.
Verdell Jackson is a former Kalispell state senator