Serving the Flathead Valley & Montana since 2006. A reality based independent journal of observation & analysis. © James Conner.
Montana and the Confederated Salish and Kootenai Tribes are reopening negotiations on the Flathead Water Compact, mainly I think to address technical issues. I doubt the result will mollify the hard core critics of the agreement, and thus expect whether to approve the compact to remain a campaign issue in Montana’s legislative elections.
My impression of the compact — and I’ve read it, the appendices, and the written testimony from the 2013 legislature — is that it’s fair, and frankly a lot better for non-tribal members than one might have expected given the legal trump cards the CSKT hold. I can find nothing in the agreement that’s likely to shut down agriculture or housing or industrial development anywhere.
So what do the opponents of the agreement really want? What is their strategy?
I don’t think it’s litigation. They may file lawsuits to buy time, but as St. Ignatius water rights expert Alan Mikkelsen, who supports the campact, noted in an oped in the Daily InterLake, that’s not likely a winning strategy:
The Irrigation District has hired a second attorney, with experience in water litigation. Between the two Flathead District attorneys, they have a perfect record of losses against the Confederated Tribes’ legal team. Their combined record approaches 0-30 in litigation involving water against the tribes. That’s right — zero wins, thirty losses. And we are now hearing the same old tired legal arguments that were raised in the 1980s and ’90s by these same attorneys. One definition of insanity is doing the same thing over and over again, while expecting a different result.
I think they’re holding out for a Congressional solution. That’s been tried before, and not that long ago. In 1999, Sen. Conrad Burns and Rep. Rick Hill carried bills to undercut the CSKT:
Senate Bill 630, introduced in early 1999 by U.S. Sen. Conrad Burns, R-Mont., and House Resolution 1158, an identical bill introduced by Rep. Rick Hill, R-Mont., envision transfer of Flathead Indian Irrigation Project management and maintenance duties to the Flathead Joint Board of Control’s (JBC) three water districts, mostly comprised of non-Indians. The project is run by the federal BIA and provides water to about 127,000 acres of farm and ranch land across the 1.2-million-acre reservation. [Indian Country Today]
It seems probable to me that the opponents of the compact believe Republicans will take the U.S. Senate in 2014, hold the Senate and House in 2016, and win the Presidency in 2016, thus creating a political environment in which the 1855 Hellgate treaty can be effectively repealed, and the water rights transferred to the white people who are farming most of the lands in the Flathead Indian Irrigation Project (history, PDF).
Congress has the power to provide the relief the white irrigators want — and, I believe, the wisdom not to grant it even if Republicans control the White House and Congress. I wish the opponents of the compact had the wisdom to support it and spare everyone endless, expensive, and ultimately unsatisfying litigation that the CSKT will surely win.