CSKT Water Compact Faces Long Journey from Helena to Washington

Even with approval from the state Legislature, tribal water rights measure must clear numerous hurdles

By Tristan Scott

If whiskey is for drinking and water is for fighting, as Mark Twain famously said, then the 2015 Montana Legislature affirmed the truism.

And for proponents of the Confederated Salish and Kootenai Tribes water rights compact, the fight is far from over.

After hours of debate, the state House of Representatives on April 15 endorsed the water-rights compact between Montana and the Confederated Salish and Kootenai Tribes, and the next day gave final approval to Senate Bill 262, the only water compact involving a Montana reservation that remains un-ratified.

It’s been at the center of a tumultuous and hard-won political battle over a complex issue, the intricacies of which were further drawn out by a House rules tug-of-war narrowly won by a “working majority” of legislators, including all 41 Democrats and a dozen moderate Republicans.

That fight, which occurred in committees and on the House floor, mirrored the political maneuvering that ushered Medicaid expansion through the state Legislature, and while it offered a revealing glimpse at the bare-knuckle brand of politics that has characterized the session, it cleared the way for a future beset with other complicated delays and potential stumbling blocks.

In addition to the endorsement of state lawmakers, the Flathead water compact must also gain congressional approval, and the timeframe for navigating that process is unclear. But if history is any precursor, its path to final endorsement promises to keep supporters and opponents on their toes.

Proponents of the Flathead compact include Democratic Gov. Steve Bullock, Republican state Attorney General Tim Fox, tribal leaders and several of the state’s major agriculture groups – a boon when it comes to passage at the state legislative level. Supporters recognize the reality that failure of the compact would result in a deluge of litigation by the tribe over their water rights in the state Water Court, which would cost the state millions of dollars to defend.

In Congress, however, the compact faces another long, involved process that depends on more than support from Montana’s congressional delegation.

Reserved water rights compacts for both the Northern Cheyenne and Rocky Boy Indian reservations both passed Congress in two years or less after the state Legislature approved them nearly 20 years ago.

But it took 11 years for a compact with the Crow Tribe to pass Congress after the Montana Legislature approved it in 1999, and its final passage came only after it was attached to legislation through the Cobell Settlement, the upshot of a sprawling class-action lawsuit by Native Americans against the U.S. government.

Meanwhile, the water compact with the Blackfeet Tribe still has not received congressional approval since its introduction in 2010, while a compact with the Gros Ventre and Assiniboine Tribes of the Fort Belknap Reservation, ratified by the state Legislature in 2001, lingered for a decade before the deal was so much as introduced in Congress, where it has yet to be decided.

U.S. Sen. Jon Tester, a supporter of the Flathead compact, has introduced the Blackfeet measure three times – in 2010, 2011 and 2013 – while the senator from Big Sandy introduced the Fort Belknap in 2012 and 2013.

Further complicating the Flathead compact’s journey through Washington, D.C., is a new set of rules requiring the U.S. Attorney General’s Office and the U.S. Secretary of the Interior to “convey support for and forward the proposed settlements and the proposed authorizing legislation, specifically including federal spending levels, before any committee consideration takes place.”

That’s according to a letter from U.S. Rep. Rob Bishop, R-Utah, who chairs the House Committee on Natural Resources, to Attorney General Eric Holder and Interior Secretary Sally Jewell.

“The committee recognizes that settlements to these matters are generally preferable to protracted litigation, which does little to provide water supply and financial certainty for settling and other parties. Importantly, settlements, if crafted correctly, can also provide relief to the United States from burdensome legal obligations and benefit all American taxpayers.”

Due to the growing federal debt and budgetary pressures from existing Indian water rights settlements, Bishop wrote “it is important that the proposed settlements, their proposed legislation and the federal costs associated with them be fiscally responsible and justified in order to protect the American taxpayer and future tribal needs.”

“It is my intent that your actions prior to committee consideration will determine whether negotiated settlements proceed in the legislative process,” Bishop stated in his letter.

Tester said he was impressed with the bipartisan support of the Legislature and the decade of work that went into crafting the compact, and encouraged the same level of bipartisanship as the compact winds its way through Congress.

“Folks from all walks of life have come together to build this compact. I’m encouraged by the bipartisan support for this proposal,” Tester said.

But Republican U.S. Sen. Steve Daines pointed to budgetary restraints and the plodding nature of gaining congressional authorization for other water compacts as evidence of a greater need for scrutiny.

He said the same discussions that have occurred between the Department of Interior and the Blackfeet Tribe need to occur with the Flathead compact.

“We also need to work to get the Blackfeet Water Compact across the finish line,” he stated in an email, noting that, although it’s experienced substantial agreement between the Department of Interior, the tribe and other key stakeholders, after six years it has yet to move forward.

“Funding water compacts in our current fiscal environment is not a simple task, and it’s important that these decisions are thoughtfully and thoroughly considered,” Daines stated.

Republican U.S. Rep. Ryan Zinke voiced his support for the Flathead compact in December, according to the Char-Koosta News, but in a recent interview with Newstalk KGVO, prior to the compact’s passage at the state level, said, “as far as the water compact goes there are some elements that I am not very comfortable with on it. The state is looking at it very, very closely. I am not very comfortable with a number of provisions on it, and I am hoping the state looks at it closely and makes the right decision.”

In a statement from Zinke’s communications director, Heather Swift, she said, “Congressman Zinke is following the compact very closely at the state and federal levels but there is still more work and negotiations to do before it reaches Congress. He is hoping for a timely process.”