The Tribal Conference room was filled with folks on Thursday evening, March 30, for the last of six scheduled community meetings presenting information about the Blackfeet Water Compact and Settlement Act. Former Councilman Bill Old Chief moderated the meeting, and Gerald Lunak and Jeannie Whiting of the Blackfeet negotiating team talked about the history, details and options facing the Tribal Membership when they vote on April 20. The meeting was also attended by Councilmen Tyson Running Wolf, Joe McKay and Tim Davis.
“We’re not here to tell you how to vote,” Old Chief began, “just to get the information out. But ‘no’ isn’t good enough for me. You’ve got to tell me the reasons, and give a detailed reason why it’s not in the best interest of the Tribe.”
Gerald Lunak offered a brief introduction, noting the Compact establishes the quantity of water rights the Tribe will have, as well as confirming the Tribe’s authority and jurisdiction over water related issues on the Blackfeet Reservation. The Settlement provides $421 million in funding, some of which is directed at specific water related projects but most of which will be left to the Tribe to decide how and what water related projects to develop.
The three most important parts of the Compact and Settlement, Lunak said, are control, quantity and funding.
Tribal Attorney Jeannie Whiting explained how the Compact and Settlement came about. She said in 1908 the Supreme Court established the Winter’s Doctrine, which said that even if a Tribe’s treaties didn’t mention water rights, the treaties themselves reserved water rights sufficient for “the needs of the reservation,” although no quantity was specified.
Noting the coming establishment of water rights, in 1975 the United States filed for water rights on behalf of all seven Tribes in Montana, Whiting said. The state responded in 1979 with the Montana Water Use Act which said Montana would determine water rights within the state, including its reservations. The competing cases were resolved when the Supreme Court decided in Arizona vs. San Carlos Apache that states did, indeed, have the power to determine Tribal water rights within their boundaries.
“Tribes all over the west had to decide to let the state courts adjudicate or to litigate in state court,” Whiting said. “The Blackfeet decided to start negotiating.”
That process began in the 1980s and led to the Compact and Settlement being agreed to by the Blackfeet Tribe, Montana and the U.S. “Now it’s up to the members,” Whiting said.
If the Compact and Settlement are approved by the voters, the Tribe will gain control over all the waters in the Milk River, Cut Bank Creek, Two Medicine and Badger drainages, minus any state water rights that exist there. Subtracting the state’s portion, Whiting said the Tribe’s part will amount to 90-95% of those waters.
At Birch Creek, the Tribe’s portion of flow was increased from 33 1/3 cfs to 125 cfs, as well as 25 cfs instream flow to support the fishery. Whiting explained downstream users in Pondera County would come up short, so to compensate, Four Horns Lake will be raised to its original capacity and 15,000 acre feet will be pumped via a pipeline down-stream for 25 years. After that, the Tribe assumes ownership of the pipeline and all improvements, and it may decide at that point whether to renegotiate with downstream users, to market the water or to use it on the reservation. Whiting called this portion of the deal the Blackfeet’s first marketing opportunity for water.
The situation on the St. Mary River is complicated by diversions and the International Boundary Waters Treaty, but after those issues were considered, the Tribe will get rights to 50,000 acre feet from the St. Mary, all the water in Willow and Lee creeks and whatever water is left after the diversions.
In addition, the Compact and Settlement gives the Tribe rights to the water in all the lakes, wetlands and water bodies, which Whiting said amounts to around 400,000 acre feet. The Tribe also gets any state water rights attached to land the Tribe buys, and it receives 45,000 acre feet from Tiber Dam which may be marketed for profit. The Settlement also guarantees instream flow rights to all the streams within the 1895 Ceded area to support hunting and fishing.
All together, the deal gives the Tribe rights to around 800,000 acre feet, plus the 400,000 in lakes and wetlands. It also confirms the Tribe’s right to jurisdiction and the authority to decide water rights on the reservation through an amended Tribal water code and a system of permits.
In the absence of the Compact and Settlement, Whiting said, it goes back to the Winter’s Doctrine which specifies water rights sufficient to the needs of the reservation. That includes present use and future use, but any future use claimed must meet an economic test to show it will at least break even. “It’s a restrictive test and difficult to meet,” she said.
If the membership rejects the Compact and Settlement, the Tribe must engage historians and technical consultants to make a case for more water. And while Whiting said such a team would seek the best possible outcome, “I could not make a case for all the non-state use there is in the Compact.” Additionally, she noted such litigation would only determine the Tribe’s water rights and priority. No money for projects would be included, no water from Tiber Dam, no guaranteed water from St. Mary and the administrative and jurisdiction issues would go to the state.
While some of the $421 million is earmarked for projects like improvements at Four Horns, most of the money will go to tribally determined projects. Whiting said community water systems could be upgraded, irrigation systems could be renovated and new ones established in every basin and land could be bought by the Tribe for water related purposes. Energy development involving water, recreational facilities near water (such as Chewing Blackbones), fisheries management and development and improvements at Swiftcurrent are all possible projects the Tribe could consider.
Deciding where to spend the funds and which projects to embark on is the first order of business, should the Compact be accepted. If so, the Tribe must submit plans for development, and that would be accomplished through community meetings to obtain input from the membership.
Whiting also explained that while the funds have been approved, they have not been appropriated. She said although there is no complete guarantee, in 30 settlement cases since the 1970s Congress has never failed to approve funding water rights settlement cases.