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Compacting the Future

CSKT were first into court and last to the negotiating table

By Dave Skinner

The Confederated Salish and Kootenai Tribes (CSKT) water compact ratification bill is now underway in the Legislature. Sen. Chas Vincent (R-Lincoln County) introduced the barely-revised compact legislation (S-262). I sure feel sorry for our legislators. They face a profoundly Hobbesian choice between awful and rotten.

Either way, CSKT is going to stick it where it hurts. Nobody should be surprised. CSKT were first into court and last to the negotiating table, sitting down seriously only after Brian Schweitzer was elected governor with the help of Indian voters, who tend to vote overwhelmingly Democratic.

With his ambitions for “higher office” – does anyone think Mr. Schweitzer considered politics at all when he made his appointments to the compact commission?

Compact supporters have taken great pains to point out that if the compact is signed, existing off-reservation rights will be safe from lawsuit – it’s only reservation irrigators affected.

Color me cynical, but that strikes me as grossly political, too. Ben Franklin is famous for saying “Justice will not be served until those who are unaffected are as outraged as those who are.” Well, yeah – if cities like Missoula, Kalispell and Butte found their water rights threatened, a bunch of people would be angry and upset. If an industrial company had its rights threatened – and with that, the associated jobs – there’s a bunch more unhappy folks.

Right now, off-reservation water users are scared silent, terrorized by the idea they might be sucked into the water vortex if CSKT does what it has threatened – filing claims with “immemorial” priority dates and high base instream flows on both sides of the Divide.

So, standing alone by themselves are the reservation irrigators, folks not known for having the sort of cash needed to hire bionic water lawyers. Innocent circumstance? Naw – blunt force strategy.

As for the legal environment, CSKT holds almost all the cards. Tribal water rights are governed by what is called the Winters doctrine (argued over water rights on the Fort Belknap reservation), entitling Indian reservations to water rights sufficient to fulfill the purpose for which the reservation was created. There’s another twist – “use it or lose it” does not apply to Winters rights. Dormant senior rights can be claimed at any future time, for any useful purpose, on the reservation. Potentially ugly, but that’s the law.

Then there is the Stevens Treaty “right of taking fish, at all usual and accustomed places […] grounds and stations, is further secured to said Indians in common with all citizens of the Territory” off reservation lands. Simple, right? Indians can go get a license in common with their fellow citizens, eh?

Um, no. In 1974, U.S. District Judge George H. Boldt (incidentally, a UM law school graduate) ruled those words entitled Stevens Treaty tribes such as CSKT to half of all off-reservation “usual and accustomed” fish harvest, commercial and recreational.

Furthermore, there’s the issue of whether there’s a “time-immemorial” off reservation right to flows needed to maintain an “in-common” fishery. There, case law is not clear. For some tribes, it’s “absolute minimum.” In Idaho, the Nez Perce chose to negotiate junior instream flows off reservation after losing in state court over time immemorial.

Better safe than sorry, right? Sure, if you like being “safe” AND sorry.

In terms of future water rights, a signed compact will close the Clark Fork basin and Kootenai River. New water users will need to lease rights from CSKT, rights currently unallocated held in reserve behind Hungry Horse Dam – 90,000 acre feet. But CSKT will only be obligated to lease a small portion of that water, around 15,000 acre feet, while the rest – they can choose to lease, or not lease.

I can’t support this politically driven, mercenary, even vengeful compact. Were I a legislator, my choice would be to not legitimize this document with my vote – at all.