Daines and Tester co-sponsor CSKT water rights settlement

John S. Adams

Montana Free Press

Montana U.S. Sens. Steve Daines and Jon Tester announced Wednesday the introduction of a long-awaited bill that would settle a century-old dispute over water rights between the Confederated Salish and Kootenai Tribes and the state and federal governments.

Tester, a Democrat, first introduced federal legislation in 2016 to ratify the CSKT-Montana compact passed by the 2015 Montana Legislature, but that legislation stalled without bipartisan support. Daines, a Republican, is now the lead sponsor of the new bill, the Montana Water Rights Protection Act, and will carry it in the Republican-controlled Senate. Tester will be the lead co-sponsor.  

The agreement, if passed by Congress and signed by the president, would permanently resolve the CSKT water dispute and direct the federal government to spend $1.9 billion to settle federal damage claims and to rehabilitate the deteriorating Flathead Indian Irrigation Project.

“After years of hard work and negotiations with the tribe and other stakeholders across Montana, I’m pleased to introduce this bipartisan legislation today that will permanently protect the water rights of all Montanans,” Daines said in a joint press release to reporters Wednesday. 

In addition to ratifying the CSKT-Montana water compact, the bill would also restore control of the National Bison Range to the tribes. That provision would reverse a federal taking of land in 1908 that a judge ruled unconstitutional in 1971. It also requires the CSKT tribes to relinquish a vast majority of off-reservation water rights claimed by the tribes. 

“This bill will help bring years of uncertainty for the Confederated Salish & Kootenai Tribes, taxpayers, farmers, and ranchers to an end,” Tester said in a Wednesday’s joint statement. “I’m glad the CSKT Water Compact now has the backing of folks on both sides of the aisle as well as the Trump Administration — so we can move full-steam ahead to honor our trust and treaty responsibilities, prevent costly litigation, boost economic development in the region and give long-overdue peace of mind to everyone in Northwest Montana who uses our state’s most valuable resource.”

Under the terms of the Treaty of Hellgate, which was negotiated and ratified by the federal government in the 1850s, the CSKT have the right to hunt and fish on lands and in waters within their aboriginal territories throughout western and central Montana. Federal courts have determined that identical language in other Indian treaties grants tribes “time immemorial” water rights, meaning the tribes are the first-in-line water rights holders in water basins throughout much of the state.

As part of a long-standing dispute between the CSKT and the state and federal governments over the management of waters on and off the Flathead Indian Reservation, the tribes and the federal government in 2015 filed claims on those water rights in Montana Water Court as required by Montana law. 

Under the Montana Water Use Act, Indian tribes were required to file water rights claims by July 2015.

The Water Court has stayed action on many of those claims pending the compact negotiation and ratification process. That stay is set to expire on Jan. 10, 2020. 

Without a federal bill implementing the 2015 CSKT-Montana water compact and settling outstanding federal and tribal claims, water users throughout Montana could have found themselves facing costly and lengthy litigation over the claims as soon as next month. 

In the wake of a recent expression of support for the compact settlement from the Trump administration, the federal government has asked the Water Court to extend that stay. With a bill now formally introduced in Congress, the tribes expect to join the government in requesting the extension, according to tribal staff.

The Montana Water Rights Protection Act requires the tribes to give up the vast majority of their off-reservation water right claims. If the bill passes, the threat of mass litigation of off-reservation water claims disappears. 

“This bipartisan bill and settlement is a good-faith compromise that will bring final resolution to a century-long water dispute, avoid years of costly litigation, and save taxpayers over $400 million,” Daines said in Wednesday’s release. “I look forward to continuing to work with my colleagues in Congress, as well as the Trump administration, to get this important settlement for all of Montana across the finish line and signed into law.”

According to officials in Daines’ and Tester’s offices, the bill is expected to be assigned to the Senate Committee on Indian Affairs, on which both Daines and Tester sit. 

In an earlier interview on Tuesday, Tester said he thinks the compact settlement has a better chance of passing Congress than it ever has before. 

“We can get this done,” Tester said. “Hope springs eternal. The plus side of the thing is it’s now bipartisan. … I’ll be pushing our leadership, and hopefully, Steve will be pushing his leadership, and hopefully, we’ll get a hearing on this early on in the process.”