Water is clear, but compact isn't

A massive PR campaign is flooding over Western Montana in support of a proposed water-rights compact between the Confederated Salish and Kootenai Tribes, the state of Montana and the United States.

The latest wave of information came from the governor’s office last week in response to a letter sent by the Flathead County Board of Commissioners in opposition to the water compact.

Gov. Steve Bullock told the commissioners — politely — that “many of [their] concerns are rooted in significant misunderstandings about the Compact” and he sent the commissioners a memorandum from his chief legal counsel, Andrew Huff, detailing the state’s argument that the water compact is a “fair compromise.”

Huff wrote that he doesn’t believe the county’s opposition to the compact is well-founded, but it seems to us that he does nothing to reassure the county.

Take, for instance, the county’s concern that the proposed compact is the only compact in Montana to include off-reservation water rights. Huff agrees that the commissioners are correct, but simply tries to make it seem like the tribes are doing everyone a favor “by agreeing to cede the vast majority of its off-reservation water rights claims.”

According to Huff, these claims cover about half the state, “and would, if pressed by CSKT, result in significant disruption to the statewide water adjudication proceedings.” 

It is this threat of tribal claims on water from here to Butte that has the state worried, and deservedly so, but it should be noted that just because the tribes have made claims to water rights doesn’t mean a water court would agree with them. 

The argument hinges entirely on the Hellgate Treaty of 1855 that created the Flathead Reservation. Huff and other compact supporters argue that because Article III of the treaty establishes for the Indians a “right of taking fish” outside of the reservation, they therefore somehow have the right to control water rights in 11 counties. 

But hold on. The actual language of the treaty says the Flathead Nation has “the right of taking fish at all usual and accustomed places, in common with the citizens of the Territory...” That’s the crucial language on which the entire water compact is based, and it gives us considerable heartburn. If the right to take fish is held “in common with” the rest of the citizens of Montana, then it cannot be construed to give the Salish and Kootenai special rights. This is just simple logic.

Well, say the lawyers working for the water compact commission, the tribes need to exercise other rights in order to be able to ensure themselves the right to take fish, and therefore this compact will guarantee them control over the water and thus the fish.

But Article I of the Hellgate Treaty obviates that argument. By signing the treaty, “The said confederated tribes of Indians hereby cede, relinquish and convey to the United States all their right, title and interest in and to the country occupied or claimed by them” except for on the Flathead Reservation itself. 

Legally, in other words, the whole effort to gain control of water rights off the reservation should have no validity whatsoever except by ignoring the very document that these rights are supposedly obtained from.

Yet the state, without regard to the best interest of its own citizens, is arguing that because the Hellgate Treaty grants “off-reservation fishing rights” to the tribes, it therefore necessarily also grants the tribes a right to control the state’s water in order to guarantee the quality of its tribal fishing.

That, in short, is why thousands of Montanans are outraged. As a state of fisher men and women, we know full well that the right to take fish does not guarantee a right to catch fish. 

We also have enough common sense to know when something is fishy, and the state’s eagerness to turn over to the tribes essential control over massive quantities of water without getting anything in return is puzzling at best.

We’ve already expressed our own reservations about the water compact, from both a procedural and substantive point of view, and cautioned legislators not to approve the proposal unless they know exactly what’s in the compact and that it won’t hurt Montanans now or in the future.

Gov. Bullock and counselor Huff’s arguments notwithstanding, we don’t think that test has yet been met.