CSKT water compact is flawed

The Confederated Salish and Kootenai Tribes proposed water compact should protect existing uses of water both on and off the reservation. The existing human impact on the 8.4 million acre feet of water flowing down the Flathead River each year is so small that it can not be measured. There is not a water shortage.

The reservation should be given all the surface water they can justify for additional irrigation, commercial, industrial and municipal uses. There is ample deep ground water to meet residential needs. Unfortunately, the proposed compact does not do this. There are three major parts to the CSKT water compact — the proposed water use agreement, the Unitary Water Management Board, and off-reservation treaty water rights.

The proposed water use agreement on the reservation is somewhat complicated with a mixture of Montana state-based water rights and tribal water rights. The compact transfers all irrigation water rights to the tribal government, which issues a water allocation to each irrigator of 1.4 acre feet of water for each acre.

In many cases, this is much less than is needed. Most irrigators want their private property rights in land and water maintained in the compact, which would be in accord with the practice on other federally owned irrigation projects in Montana. Also, they want the assurance that they will continue to receive at least the same volume of water as in the past. It is a violation of Article II of the Montana Constitution and the U.S. Constitution to take the state-based water rights without compensation from Indians and non Indians and transfer them to the CSKT.

A Unitary Water Management Board to administer all water rights within the boundaries of the Flathead Indian Reservation is in the proposed compact. There is no reason for the compact to duplicate what the state of Montana is already doing and turn over the administration of water rights to an unelected board, which would likely be controlled by the tribe.

There is the risk water users would be treated differently based on where they live. No other tribal compact negotiated in Montana has had a special administrative board proposed in their compact. This is an equal protection issue and would violate the 14th Amendment of the U.S. Constitution and Article II of the Montana Constitution.

Off reservation water rights negatively impact growth and development in 11 western Montana counties. No other compact has used a treaty right (right to catch fish off the reservation) to secure water rights to control the flows of rivers. Water right abstracts that have a time immemorial priority date are in the proposed compact and are made out to the federal government in trust for the Confederated Salish and Kootenai Tribes.

These are enforceable minimum flows that enable both the federal government and the tribes to make a call (stop irrigators from using water). The target low flows are based on an arbitrary standard for robust streams and rivers, not on survival of fish. In some cases, Montana Fish, Wildlife and Parks also has low flow water rights.

Any of the three water right holders can make a call. There is no detail on how this would work, but CSKT has a time immemorial priority date, so all other water rights are junior to their right, including the state of Montana. Also, surface water rights and irrigation wells in excess of 100 gallons per minute, primarily on Flathead Lake and the mainstems of the Flathead, North, South and Middle forks and Swan River can be called (shut off) by CSKT.    

CSKT is a sovereign nation with its own constitution and laws. As such, they would not be accountable to Montana citizens. These time immemorial water rights on our streams and rivers and irrigation water wells target those people who grow our food. The Montana Compact Commission and the federal government seek to violate Montana’s state sovereignty and constitution.

An appropriation of $55 million from Montana for CSKT is in the proposed compact. Tribal members are U.S. and Montana citizens. Montana has bestowed full constitutional rights and privileges on all citizens. If the money is there for a past injustice or for deferred maintenance on the Flathead Irrigation Project, it is the responsibility of the federal government, not Montana.

Sen. Verdell Jackson, R-Kalispell, represents senate district 5.