Liquid assets: The question of 'who owns the water' continues
Montana - 11/10/02 - Salish and Kootenai tribes are seeking to manage the water that flows through the Flathead Reservation, water they say they are entitled to by treaty and a century of law
FLATHEAD RESERVATION - Clayton Matt carries history around like others carry a wallet.
Spirit, family and culture, always close at hand. Although his people, the Salish and Kootenai, have lived in this country for generations, this history cannot be circumscribed by lines on a map. It exists both in and out of time, and is rooted in a sense of place that defies boundary.
"When you look at a map of the Flathead Reservation, it has a nice, neat boundary," Matt, water resources division manager for the tribes, said recently. "But that is not our homeland, because when we talk about the homeland we are talking about the land we lived on before the treaty. We moved with the seasons, for food, for trade, for relations with other tribes. The reservation is important, but it's also just lines on the map, and just a small part of our aboriginal existence."
In the most fundamental way, that existence was shaped by water, which yielded the fish, nourished the elk and deer and bear, floated the boats. Water was a partner; when settlers came, water became a tool, a way to find precious metals and convert semi-arid land into farms and cattle country.
The water comes down from the high mountains, rushes down in streams and creeks, bubbles from the ground in springs, runs to the lake, the big river. In their simplistic way, maps show water: blue lines, solitary strands finally winding together as thicker blue lines.
In this thicket of lines, maps find one of their truest meanings, as a way to diagram conflict. Water comes and goes from the Flathead Reservation. It finds its headwaters in reservation land, flows through land owned by non-Indians, then courses again onto tribal land. Finally, it flows off tribal land altogether.
Through its journey, water creates a question that Matt's ancestors would never have thought to ask - who owns it?
That question, and the subsequent questions that flow from it, are now the subject of a complex negotiation taking place between the Confederated Salish and Kootenai Tribes, the state of Montana and the federal government. The negotiation, which will parse the delicate relationship between state and Indian water rights, will go a long way toward determining how water is used on the reservation, now and in the future.
The law, in both treaties and court cases, has been relatively forthright about water ownership on Indian reservations. Predictably, of course, that forthrightness has come to be interpreted to support both state and tribal ownership of reservation waters.
When the tribes signed the Hellgate Treaty in 1855, they reserved the exclusive right to hunt and fish on the reservation, while the federal government agreed in perpetuity to protect the tribes' treaty-reserved natural resources. Those resources included water, which was reserved in an undefined quantity sufficient to satisfy the purposes for which the reservation was created and the habitat upon which treaty-reserved fisheries depend, both on and off the reservation.
When Montana became a state in 1889, the new constitution recognized the ability of the citizenry to put water to work for beneficial uses. Water was a first-come, first-served commodity, and had been that way since settlers first came into the territory.
"It all started with miners - that's why we measure the amount of water that gets diverted in 'miner's inches,' " said Bruce Loble, who is the chief judge of the Montana Water Court. "They were mainly following the custom of California. In fact, quite a few of them had been to California before they came up here."
Although most of the West is a desert, water was used rather cavalierly in Montana's territorial days. Miners simply used it where they found it, washing away whole hillsides in the search for gold.
Back then, it hardly mattered. So few people lived in the territory, and there was water enough for all. Miners would usually set up mining districts, decide how to dole out the water, then get to work. The concept of waste was unheard of.
The change began when agriculture moved in. The first settlers moved into the rich valley bottoms, where water was plentiful. They had it good until more settlers came, moving into the higher valleys.
"This is where you got the saying, 'It's better to be upstream with a sharp shovel than downstream with an early priority date,' " Loble said.
Conflict was inevitable; the state's first murder was a water fight in Stevensville.
"Most of the conflict got worked out on the ground," Loble said. "They just beat each other up. That's how we distributed water. When we got a little more civilized, we took the fight to court."
Indeed, one of the very first Supreme Court cases was a water case. As the Montana frontier got a bit more civilized, "we started into a series of water adjudications," Loble said.
"We'd have an area with a problem and we'd get the people together and work something out," Loble said. "The problem was that we didn't get everybody into one case, so as soon as another problem cropped up, we'd have to start over again. It was highly inefficient and, quite frankly, continued that way for quite some time."
Montana water law developed through what's called the doctrine of prior appropriation; that is, first in time is first in right. According to water master Doug Ritter, who adjudicates water rights cases for the state Water Court, prior appropriation produced a maze of water rights that was often incomprehensible and, because they were filed in courthouses around the state and in some cases not filed at all, nearly undiscoverable.
"What we wound up with was a situation where it was nearly impossible to find out how many claims there were on water and how much those claims were for," Ritter said. "It wasn't really the best way to go about things, but nonetheless, that's what we did. So we were stuck with trying to figure it out."
The depth and width of the confusion became apparent after the state adopted its new constitution in 1972. The next year, the Legislature passed the Montana Water Use Act, which was "intended to address the uncertainty caused by the tangle of water rights based on state law as well as the perceived threat from (Indian) reserved rights and out-of-state water users," Ritter wrote in a short history of state water rights.
The act called for a general adjudication of all existing water rights in the state. The effort was and is the largest judicial undertaking in state history. The adjudication has moved ahead like a forked river - state rights are handled through the Montana Water Court, while reserved rights on Indian reservations are handled through the Montana Reserved Water Rights Compact Commission.
It has been anything but simple.
"I do believe that the Legislature envisioned that this would happen in some definable number of years, and maybe it will," water judge Loble said. "It has been a tremendously complex undertaking and in many ways has become more complex as we've moved ahead."
For instance, when Montana was a more agricultural state, many of the state water rights were owned by large ranches. Even in the western half of the state, where agriculture is less dominant, much of the water was tied up by ranches. For good or ill, the domination at least kept things somewhat manageable.
But when ranches starting being subdivided, an elaborate maze of rights got decidedly more entangled.
"What happened was this: You'd have a ranch that had a right to let's say 100 inches of water," Loble said. "Then, when the subdivision went through, you had a new group of people divvying up this larger right. The problem arises when all the smaller claims suddenly add up to more inches than the original right. I can't tell you how often that's happened."
Those are the sorts of cases that wind up in the hands of water masters like Doug Ritter.
"What you have to do is sort of go back to the water and say, 'Here's the water we have, now how do we get there from here,' " Ritter said. "This often comes as real big news to people in a subdivision. The good news is that a lot of time people are able to work these problems out on their own. If they can't work it out, then we work it out for them."
While water court is still an essentially adversarial system, it doesn't necessarily have the cutthroat air of criminal and civil courts.
"We try to work patiently with people," Loble said. "We are not a heavily lawyered court. People are mostly pro se. If we had to have a lawyer for everyone in water court, there wouldn't be enough lawyers in the state. And that's saying something."
Of Montana's Indian reservations, only the Flathead and the Blackfeet have not yet reached negotiated water-rights compacts with the state and federal governments.
An effort to reach an agreement on the Flathead first started in the 1980s, broke down, then restarted in the '90s. The most recent round of proposals and negotiations have come in the past two years, since the tribes presented another plan for resolving water rights on the reservation.
The proposal reflects what the tribes view as an undeniable fact: that they hold the position of power in the negotiation, with the treaty and a century of law on their side.
"We want to negotiate an agreement that recognizes our aboriginal and reserved rights, but we don't want to deny the fact that there have historically been other water uses on the reservation," Matt said. "We understand that we have a responsibility to both Indian and non-Indian residents of this land, and we want people to understand our willingness to share."
However, that willingness to share is not to be confused with an inclination to grant the state authority over tribal waters.
"We are saying that we own the water and that is what the law says," Matt said. "What we are saying is that if the state will recognize that this is a tribal resource, then we will recognize that there are legitimate uses. Negotiation is the way to do this, not an adversarial proceeding."
The state agrees that negotiation is the best channel to a water rights solution on the reservation, but it does not buy the tribes' ownership argument.
"Back in February, we told the tribes that their proposal couldn't form the basis for a compact," said Anne Yates, an attorney for the water rights compact commission. "They claimed all the water above and below the reservation and that won't work for us."
The state wants to maintain the status quo, Yates said, which would sustain water users with state claims.
"If the people of the area can't get behind a proposal, then the Legislature's not going to get behind it," Yates said. "We recognize the sovereignty of the tribe, and we've considered the proposal. The thing to remember here is this is a long-term process."
The murkiest waters in the Flathead negotiation are those that flow to nontribal irrigators.
John Metropolis, a Helena attorney who represents irrigators through the Flathead Joint Board of Control, said irrigators support a compact settlement, but cannot and will not support any agreement that concedes that the tribes own the reservation's waters.
"Our contention, which I believe is supported by the law, is that the state of Montana owns the water," Metropolis said. "The claim that they own the water conflicts with water law and we expect that it will be resolved in the state's favor. Since they don't own it, they don't hold the right to manage it."
The state claims ownership as part of the state Constitution, but the tribe disagrees, pointing to what they feel is contradictory state law and to previous court decisions.
"What is clear is that the United States owns the water on and under the reservation in trust for the tribes," said John Carter, an attorney for the tribes. "But because of the nature of this, the level of complexity, the way to resolve this is through negotiation. To solve it by drip-by-drip adjudication - and I do mean drip-by-drip, because that's the way it goes - won't make anyone happy."
Most people come to court or the negotiation table armed with their best legal weaponry and minds, and the negotiation of a Flathead water compact is no different. A typical negotiation session has enough lawyers to field a football team.
But the tribes have also brought another sensibility and value to the table. It's evident on the first page of the proposal:
"To the tribes, the beauty and sacredness of water are of the highest value. The intrinsic cultural and spiritual value of water is pervasive with our people. Water has long been considered a medicinal substance, which is one reason it is considered sacred. We believe, however, that water is to be shared among animals, plants and humankind for the mutual benefit of all. To take more than is needed risks the loss of environmental balance, which is necessary for all to survive and prosper."
Said Matt: "The very nature of negotiation suggests that there are reasons to talk. Yes, we have positions to take, and the state has its position, but once you set that out, then you can start working toward a solution. What is very important is that people understand that, regardless of ownership, the tribe sees water as the incredibly important resource that it is and wants to make sure it is managed for the good of all."
Where the Flathead negotiation has veered from other previous negotiations of Indian water rights is in the tribes' proposal to administer the water itself (see Michael Jamison's story today about the Rocky Boy's Reservation settlement).
"... in prior Indian water rights settlements in Montana, the parties agreed to a dual governmental ownership scheme that resulted in parallel and redundant administrative functions for state and tribal governments, predicated on ever-changing land ownership patterns," the Flathead proposal states.
Matt, who acts as a spokesman for the tribes' negotiating team, said management is extremely important part of the tribes' proposal.
"Water is a unitary resource, all connected," he said. "It makes sense for the owners of that resource to manage it, and the tribe has a pretty good history of managing its resources effectively. This entire water system is a very complicated organism, and it only makes it more complicated to have multi-jurisdictional management."
There is a phrase that shows up in the legal terminology surrounding Indian water rights - time immemorial. It refers to Indians' historic use and habitation of their vast aboriginal territory, both in Montana and beyond. In water law terms, these aboriginal rights are given a priority date of "time immemorial." In a system that refers to rights as senior and junior, they are the most senior of rights.
But it's the phrase itself that Clayton Matt likes. It provides him a sort of chronological tableau upon which the state's water battles can play out. Time immemorial put words like "negotiation" and "rights" and "beneficial uses" in proper perspective.
"For me, the way I think about this is that I am just one person," Matt said. "I am honored to play this role, at this time. But it's just a small thing in time. What has made this work for us, what brings us here today, is not me. We stand on the shoulders of our ancestors. There is a really strong sense of water flowing through time here. Tribal membership includes young and old. It's like my parents, they told me they had the opportunity to give this place away. But they didn't do that, because it's their job to pass it on to me. And that's where we are with this water today. It's my little job right now to pass it down. But in the larger picture, it's our job to keep the water moving through time, from the ancestors to the young."
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