Montana Public Radio

Bill Would Transfer Bison Range To Tribes, Settle CSKT Water Rights Claims

Dec 10, 2019

A bill proposing to settle long disputed water rights claims between the Confederated Salish and Kootenai Tribes and the federal government includes a massive new bargaining chip: transferring the National Bison Range to control of the tribes. U.S. Senator Steve Daines is expected to introduce a bill to do that as early as this week.

Corin Cates-Carney: John Adams is the editor in chief of the Montana Free Press and covered the breaking news today. He joins us now to share his reporting. John, thanks for joining us on Montana Public Radio.

John Adams: Happy to be here.

Cates-Carney: So before we dove into the details about how the national bison range became a part of this water rights settlement, can you give us a refresher on where the CSKT Water Compact stands now?

Adams: Well, of course, the CSKT Water Compact was first passed by the Montana Legislature in 2015, and that was the state portion of a larger negotiation that also required, not only approval by the federal government, but a settlement between the tribes and the federal government over past water rights claims; basically damages that the federal government was responsible for to water on the reservation and off the reservation. So not just on the Flathead Indian Reservation in the Flathead Valley around Flathead Lake, but also the aboriginal lands that the Confederated Salish and Kootenai Tribes had occupied prior to white settlement. So these are areas that span a large portion of western Montana where the tribes once lived in time immemorial before white settlers arrived in the West.

Cates-Carney: How do these two kind of massive issues, the CSKT Water Compact and the National Bison Range become entwined? Your report today said that the National Bison Range will be returned to the tribes in this water contact bill.

Adams: Well, the National Bison Range will be restored is the language. And what that means is that it will no longer be part of the national refuge system, but instead will be held in federal trust for the tribes, which is the status that it had prior to 1908, when the federal government, by an act of Congress signed by Teddy Roosevelt, took the land through the use of eminent domain. An action that was deemed later by the courts in 1971 is an illegal taking by the federal government and in getting both of these issues wrapped together in one bill.

Cates-Carney: Now, that is not public yet, but sounds like Senator Daines is planning to introduce it maybe this week. Are there concessions that the tribe had to make either on the side of water rights or management of the national bison range to get these two things put together?

Adams: Yes. So under the original Hellgate Treaty, the tribes still had water rights. They had the right to fish, hunt and fish, in their aboriginal lands, and that included all of these waters even outside the reservation. And so under this negotiated settlement, the tribe has agreed to give up the vast majority of those off-reservation water rights in places throughout western Montana and southwestern Montana and even out into central Montana. They no longer are going to hang onto those rights. They're going to relinquish those rights in exchange for the $1.9 billion dollar settlement to repair and improve the Flathead irrigation system, as well as regaining control and oversight over the National Bison Range.

Cates-Carney: And were the tribes a part of the negotiations to wrap the bison range into the water compact settlement?

Adams: Oh, absolutely. Yeah. The tribe was very much involved. In fact, the negotiation primarily was between Senator Daines and the tribe. This compact process in the federal settlement, these are things that have been happening for years and years and years, both at the state and the federal level. This wasn't something that was just arrived at overnight. By the time it became a proposal for legislation, there had been a tremendous amount of negotiation between the Department of Interior, the state DNRC, the tribes, etc. And so we're now at a point where it's passed at the state level. It's now being introduced at the federal level. And this should be, we should be seeing the end of the last Montana Indian Water Rights Compact here in the next year.

Cates-Carney: For those who've been watching this issue for a long time, what are the distinctions about what passed in the Montana State Legislature in 2013 in the water compact and now what's being negotiated, including this addition of the National Bison Range on the federal level?

Adams: They're two separate but sort of parallel tracks here. One is the state negotiation with the tribes over the tribes' rights to state waters and state lands. And then there's the negotiation that the tribe has with the federal government over the liabilities that the federal government has in damages that they've they've done to tribal waters. First, the Montana negotiation had to pass. That was the passage of the CSKT Water Compact in 2015 by the Montana Legislature. Then it goes to the federal government for consideration. Senator Jon Tester first brought a bill in 2016 that would essentially just implement what the state had negotiated. That didn't pass and it required bipartisan support in a Republican legislature, so it needed the support of Montana's Republican Senator Steve Daines. What Senator Daines has been negotiating since that is a deal that, not only in his view a better deal for the federal government and for the people of Montana, but a fair deal for the tribes. And so what they've come up with is this negotiation and this has been going on for a long time.

And, you know, for the folks I talked to, this has been a very heated, at times, negotiation between some of these folks, because there are a lot of people, particularly in the Flathead Valley, who are concerned, outright opposed to the passage of the compact or a federal settlement, who think that even at $1.9 billion, which is $400 million less than what the federal government would have paid under Senator Tester's bill, that this is still too much money going to the tribes. The tribes would argue that this isn't. This is just a small fraction of what they're actually owed. And if you look at the legal history of these types of compacts and these types of cases throughout the course of the last hundred years, the law really is on the side of the tribes in this case. And in court case after court case, we've seen the courts side with the original negotiated treaties. And so I think the tribes think that they're getting a fair deal. I think that Senator Daines thinks that he's getting a great deal for the people of Montana and the taxpayers. And Senator Tester has indicated his support for the bill. So there's bipartisan support now for this legislation.

Cates-Carney: And with both Montana's senators expressing support for this and both of them sitting on the Indian Affairs Committee, is there a sense of how this could track through Congress?

Adams: Well, Senator Tester said when we spoke to him earlier today, his crystal ball is cloudy and so he doesn't want to make any predictions. But I think there's a lot of optimism that it will pass. It does have bipartisan support from Montanans; two senators. And the Trump administration indicated its support for the compact last month when Secretary of the Interior David Barnhart wrote a letter to Senator Daines saying that it was in the best interests of everybody for this to be settled through negotiations, not through litigation. And that was a sentiment that was echoed by Attorney General William Barr, who also said that this settlement in negotiation was important. And so I think that there is a sense that this is something that needs to get done and there's bipartisan support. So I think there's some optimism here. But if it doesn't get done, then a lot of Montana irrigators could be facing costly litigation in the future.

Cates-Carney: What's next when this bill drops the public? It's still, we haven't seen it yet as of this taping. What's next in its process, its introduction and getting it passed in Congress?

Adams: Well, I talked to some folks in Senator Daines office and they were pretty clear that they want to get this bill introduced this week. If that happens, then I think there'll be a move to move it through committee. It will go to the Indian Affairs Committee. And so Senator Tester said he's going to be pushing on his leadership and he expects that Senator Daines will be pushing on Leader McConnell to move this legislation quickly. It sounds like there's going to be another stay, an extension on a stay in water court right now that will prevent costly litigation for at least another year. But if this doesn't get resolved, if this bill doesn't pass by, you know, by the time that stay expires, a lot of water uses across Montana could find themselves in court.

Cates-Carney: John Adams is the editor in chief of the Montana Free Press.

Correction 12-02-19: This story has been updated because an earlier version contained a transcription error in one of Adams' responses. The National Bison Range was held in federal trust for the tribes prior to 1908.