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.
