Thursday, January 15, 2015

Gone Fishing

One of the features of the Confederated Salish and Kootenai Tribes water compact that’s guaranteed to rile up compact opponents (case in point: Verdell Jackson) is its recognition of tribal rights to in-stream flows on rivers outside the boundaries of the Flathead Reservation. The Tribes’ “off-reservation” claims derive from the Hellgate Treaty, which, in establishing the reservation, also recognized the right of tribal members to “taking fish in all usual and accustomed places...” Courts have ruled that the right to “take fish” means more than just the right to go fishing; it should actually be possible to catch fish. And tribes have argued that if they have a right to actually catch fish, they also have a right to enough water in streams to assure the fish will be there. So since historically the Salish and Kootenai usually fished all over the western half of the state (take a look at the map below), they now claim in-stream flow rights to maintain fisheries well beyond the current reservation boundaries.

All that may seem pretty cut and dried, but now we have former senator Verdell Jackson, arguing in a Great Falls Tribune piece that the Hellgate Treaty, rather than validating off-reservation rights, actually “forbids” them!  Jackson reaches this rather novel conclusion based on his reading of Article I of the treaty, which he thinks means that the Tribes, when they gave up their claims on land outside the reservation, gave up their rights to hunt and fish there as well. This is, in a word, nonsense. Tribal rights to hunt and fish off reservations are robust and have been repeatedly upheld by the courts.

If there is any grey area here, it concerns whether an off-reservation fishing right necessarily implies an off-reservation in-stream flow water right as well. The US Supreme Court has never ruled on this point, but lower courts have, with some denying, and others recognizing, such in-stream rights. Jackson has this all wrong too, when he claims that no off-reservation in-stream rights have ever been recognized in “Montana or any other state.” Whatever the case, from the point of view of the Compact Commission, it was far better to agree to a limited number of off-reservation rights, with little expected impact on other water users, than to throw the state into a protracted legal battle over the many off-reservation claims that Tribes would file in the absence of a settlement.

Jackson asks how anyone who has sworn to uphold the U.S. and Montana constitutions can support a compact that gives the Tribes “authority over rivers that affect 330,000 people in 11 counties in Western Montana.” Well, he has nothing to worry about. All the compact does is give the Tribes rights to non-consumptive use of the water from these rivers – rights that cannot be changed, leased or sold and that are no different than the thousands of other water rights held by individuals all across the state. They confer the right of use but no “authority” or control over rivers and the water in them.  Water in Montana belongs to the state and it is the state that has the authority to manage it. That's what the Montana Constitution says, and nothing in the CSKT compact alters that fact.