Tester, Daines led Fort Belknap Water Compact passes Senate

A historic deal more than a century in the making requiring the federal government to ensure members of the Fort Belknap Indian Community have water — and ensures water is available to everyone along the Milk River — took another major step forward Thursday.

The Fort Belknap Indian Community Water Rights Settlement Act, led by Sens. Jon Tester, D-Mont., and Steve Daines, R-Mont., unanimously was passed by the U.S. Senate as an amendment to the National Defense Authorization Act, a release from Tester’s office said.

The Fort Belknap Water Compact was approved by the state of Montana in 2001, and has been in negotiation to achieve ratification with the federal government.

When the bill was discussed in committee, several people including Fort Belknap Indian Community Council President Jeffrey Stiffarm noted that the Winters Doctrine, which sets federal policy that when the federal government reserves land for tribal use — Indian reservations — it must also reserve sufficient water rights — started on Fort Belknap.

The doctrine comes from the U.S. Supreme Court’s 2008 decision in Winters v. United States, which started on Fort Belknap.

“Fort Belknap, in 1908, won a settlement in the U.S. Supreme Court that says you can’t have the land without the water,” Stiffarm testified July 12 before the Senate Committee on Indian Affairs. “It set the way for Indian nations across this country to get their fair share of water, and here we are today, a century later, finally Fort Belknap’s going to be able to settle their water.”

If the bill now passes the House and is signed into law, it will ratify the Fort Belknap Indian Community Water Rights Compact with the State of Montana, provide resources for critical water infrastructure development like the completion of the Milk River Project, give certainty to both tribal and non-tribal irrigators and restore Fort Belknap Indian Comminty lands to federal trust, ensuring their preservation for years to come, the release said

“As a third generation Montana farmer, I can tell you firsthand that water is critical to the success of everyone from farmers and ranchers, to families and small businesses,” said Tester. “After decades of work with the Fort Belknap Indian Community, ag producers, and a wide array of Montana stakeholders, we are one step closer to giving water users in north-central Montana the certainty they need to thrive. Today’s strong bipartisan vote on Montana’s final Indian Water Rights Settlement is great news for the FBIC, and great news for folks all across the Treasure State.”

“The Fort Belknap Water Rights Settlement is the last Indian water rights settlement in Montana and I worked hard to get it included in the must-pass defense authorization bill,” Daines said in the release. “This critical bill codifies existing water rights, prevents costly litigation, provides clean drinking water and invests in irrigation for farmers and ranchers who provide food for the whole country. It’s supported by our governor, the Fort Belknap Community, all locally affected counties and our farmers and ranchers. It is a win-win-win for Montana and I am grateful it passed.”

The Fort Belknap Indian Community Water Rights Settlement Act will provide $1.3 billion to improve infrastructure and economic development for the FBIC and improve the efficiency of the U.S. Bureau of Reclamation Milk River Project, which furnishes water for the irrigation of about 121,000 acres of tribal and non-tribal land. The bill will also restore tribal management to 38,462 acres of state and federal land for the FBIC.

If the bill is approved by Congress and signed into law, the compact must then be approved by a simple majority of the members of the Fort Belknap Indian Community and then submitted to the Montana Water Court and be entered into the Montana Water Court as a final decree.

Supplying the water

The Milk River Project, one of the first projects the U.S. Bureau of Reclamation was authorized to work on when it was created at the start of the last century, includes a system of dams, dikes, and 29 miles of canals, siphons and drop structures that transports water from the St. Mary River, on the edge of Glacier National Park, across the Blackfeet Indian Reservation and into the North Fork of the Milk River.

The project typically provides half or more of the water in the Milk River, and, in drought years, as much as 90 percent of the water in the river. Before it was built, the Milk River dried up by fall in 6 out of 10 years.

More than 20 years ago, a push to rehabilitate the falling-apart system was started, leading to the creation of the St. Mary Working Group.

The need for repairs was highlighted in 2020 when the last drop structure in the conveyance work, a slab of concrete that leads from the system into the North Fork of the Milk River, collapsed, shutting down the system. That led to a highly successful top-priority push to get the structure replaced and make some other repairs, which were completed that fall.

It showed the urgency of rehabilitating the entire system, however.

A first step in that project, the rehabilitation of the dam that diverts water from St. Mary River to the conveyance works, is underway. Funding for that was provided through the bipartisan infrastructure bill passed in 2021.

Another project, a safety improvement project on Fresno Reservoir west of Havre, also part of the Milk River Project, is underway as well.

But major repairs to the conveyance works still are needed to increase efficiency and prevent more catastrophic failures.

To ensure the Milk River supplies the water guaranteed to the Fort Belknap Indian Community, the water settlement bill also provides for rehabilitation of the diversion and conveyance works.

July 12, Montana Lt. Gov. Kristen Juris, who co-chairs the St. Mary Working Group, testified that the rehabilitation is crucial.

“In water circles, we talk about paper water, the tribe’s water rights as described in the compact, versus wet water, the tribe’s ability to actually put the water to use on their fields and in their homes,” she said. “… This bill transforms paper water into wet water, and, quite frankly, without it, significant portions of the tribe’s water rights will remain on paper.”

Long negotiations find success

After more than a decade of negotiations, the FBIC Tribal Council approved its Water Compact with the State of Montana in 2001. The Montana Legislature approved the Compact later that spring. FBIC and Montana’s Senators worked to bring together partners to advance this critical settlement.

The release said that supporters of the bipartisan bill include:

• Blaine County Conservation District

• Hill County 

• Phillips County

• Valley County

• St. Mary Rehabilitation Working Group

• Milk River Joint Board of Control

• Rocky Mountain Tribal Leaders Council

• The Wilderness Society

• Montana Farmers Union

• Bear Paw Development Corporation

• Blaine County

• Montana Farm Bureau

• Montana Stockgrowers Association

• Wild Montana.

  At the Senate Committee on Indian Affairs hearing, Daines and Tester entered letters of support for the bill into the record.

Stiffarm testifed during the hearing that it has been a long road getting to where the bill is at today, and took many difficult decisions and the Fort Belknap Indian Community. He thanked Daines and Tester and all who have worked on the compact, noting that his predecessor, former Fort Belknap President Andrew Werk, worked very hard on getting the compact where it is today.

He testified that the bill would provide water for residents and agriculture on both ends of the reservation, from the Milk River on the north and from the Missouri River on the south, near Hays and Lodge Pole where people still lack water due to the contamination from the Zortman-Landusky mines abandoned by the Pegasus Gold Corp.

“What this bill is going to provide for our people is hope,” he said, “something to fight for, something to stand for.”