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After decades, COVID bill finally brings closure to CSKT water compact

Fog settles in on the Nation Bison Range on the Flathead Reservation. Thanks to the latest pandemic relief bill, the Confederated Salish and Kootenai Tribes can finally control the water on their own reservation and manage buffalo on the National Bison Range. (Williams Munoz/Missoula Current)

The Confederated Salish and Kootenai Tribes can finally control the water on their own reservation and manage buffalo on the National Bison Range.

The $900 billion pandemic relief bill now headed for President Trump’s desk carries many Congressional end-of-business riders, including the Montana Water Rights Protection Act that would finalize long-promised water rights for the Confederated Salish and Kootenai Tribes.

CSKT Chairwoman Shelly R. Fyant called Monday, when both houses finally passed the pandemic bill, an historic day.

“This is one of the most significant days in the history of our people and one that will have a profound and positive impact on the future of the Flathead Reservation for the next century,” Fyant said in a release. “We will be able to rehabilitate and modernize the Flathead Indian Irrigation Project and restore damages to fish and wildlife habitat caused by the project, while simultaneously protecting farmers and ranchers who depend on irrigation for their livelihoods.”

The process to create federal water compacts is often long, but the CSKT water compact has drawn out since the mid-80’s. That’s when the Montana Legislature decided that going to court over tribal treaty rights was a losing game and created a commission to negotiate 17 water compacts with tribes and federal agencies. As each compact was hammered out, it had to then gain the approval of the state Legislature and then the Congress.

The proposed CSKT compact was the last to go through the process and was probably the most contentious, because so many non-Indians had moved onto the Flathead Reservation in the beautiful Mission Valley. Opposed by Flathead area irrigators and legislators, some for racist reasons, it was tabled in committee during the 2013 Legislature.

But that could have cost the state of Montana, because the 1855 Treaty of Hell Gate gave the CSKT rights to hunt and fish in their historical waters, which meant they had a say in streamflows throughout western Montana and as far east as the Yellowstone River Basin.

A 1980 court ruling found the tribes have instream flow rights to maintain healthy fisheries that tribal members can use. The tribes were willing to give up many of those rights as part of the compact. But if it didn’t pass, they’d assert those claims – as many as 10,000 by some estimates – locking up the state water court for years and jeopardizing Montana’s effort to finalize the state’s water rights.

“We chose the path of negotiation,” Fyant said Tuesday. “It’s great knowing that we’re not going to have to go the litigation route.”

That information hit home with more Montanans. Knowing it could affect many agricultural producers, other state irrigators and the Montana Farm Bureau Federation backed the compact. When the CSKT water compact was reintroduced in the 2015 Legislature, it finally had the votes to pass. However, some Flathead residents still stood in defiance, including state Sen. Albert Olszewski.

Even while running as a Republican gubernatorial candidate this year, Olszewski said the treaty didn’t give the tribes a claim to the water. But now, the Congress has.

Sen. Jon Tester first took the water compact to Congress in 2016 as the Salish and Kootenai Water Rights Settlement Act. Sen. Steve Daines reintroduced the bill a year ago as the Montana Water Rights Protection Act. The legislation languished for four years.

In the past, either Flathead irrigators or the Bureau of Indian Affairs has managed reservation water. During that time, the irrigation project was neglected, Fyant said. Now, the CSKT have control.

With $3 million they received from the state of Montana and appropriations that should be coming from the federal government, they intend to upgrade the irrigation infrastructure to keep more water in reservation streams for fish and to restore the fisheries themselves.

“The bull trout is an endangered species,” Fyant said. “That’s one of our main concerns because the bull trout was one of our mainstays.”

They also retain instream flow rights in some rivers, often in combination with Montana Fish, Wildlife & Parks.

The other authority they gain under the rider is management of the National Bison Range, formerly managed by the U.S. Fish and Wildlife Service. The Bison Range lies entirely within the reservation but the federal government took the land back from the CSKT in 1912. Finally, a court of claims found in 1971 that the taking was unconstitutional.

Fyant said once the bill is signed, it grants the tribes immediate control of the bison range, something they’ve actively worked toward for the past 17 years. It too has not been without regional opposition, but now it appears to be a done deal. Fyant said the Bison Range would remain open to the public and the bison will be preserved as they’ve always been.

“Who better to do it than the original inhabitants of the land who depended on the buffalo for centuries? That was our mainstay,” Fyant said.

While the CSKT wait for Trump to sign off on recognition of their rights, the Gros Ventre and Assiniboine Tribes of the Fort Belknap Reservation continue to wait for Congress to approve their compact. The state of Montana approved their compact in 2001.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.