Great Falls Tribune: U.S. Senate OKs Blackfeet Water Compact

The U.S. Senate OK’d a major Indian water rights deal in Montana as part of a larger water-related bill Thursday.

The Blackfeet Water Compact would settle historic claims by the Blackfeet tribe to rivers and streams crossing the reservation including the Milk and St. Mary Rivers allowing the tribe to develop the reservation’s significant water resources.

As members of the Senate Indian Affairs Committee, Sen. Jon Tester, a Democrat, and Republican Steve Daines worked together to include authorization for the compact in the Water Resources Development Act approved by the Senate Thursday on 95-3 vote, their offices said.

Approval by the Senate is the farthest the agreement between the tribe and the state of Montana has advanced since being introduced in 2010.

“It’s just been a long time coming, and this is a really good step,” said Jay Weiner, an assistant attorney general in the Montana Attorney General’s Office who helped negotiate the compact on behalf of the state.

The compact has a $420 million price tag, making it the state’s second largest Indian water rights settlement, but the funding was not approved as part of the compact.

Tester and Daines said they would work as members of the Senate Appropriations Committee to secure the $420 million in funding needed to carry out the projects included in the compact.

The compact would resolve all claims to water rights on the Blackfeet Reservation and ensure access to reliable water for the communities within the reservation, while protecting farms, ranches, and businesses off the reservation that have been using that same water for decades, Tester and Daines said.

Through provisions in the compact, the Blackfeet Tribe would gain control of a significantly larger portion of 1.2 million acre-feet of annual flow that leaves the reservation in streams and rivers.

That’s about enough to cover a million football fields a foot deep.

That water has been put to use off the reservation to irrigate crops and supply communities.

In 1908, the U.S. Supreme Court issued the Winters decision.

It said tribes had implied or automatic federally reserved water rights when reservations were created.

Settlement of those water rights are now occurring a century later, and the Blackfeet negotiated a larger share of the resources.

“Today marks a major milestone for the Blackfeet Tribe,” Tester said in a statement. “I will continue to work with folks to find the funding that is needed to get this compact across the finish line and ensure that families, communities, and farms and ranches on the Blackfeet Reservation have reliable access to clean water.”

“This long-overdue agreement will not only establish the tribe’s water rights, but will also facilitate real, tangible benefits for the Blackfeet and surrounding communities,” Daines said.

The bill would improve several federal water structures that are some the oldest and most-in-need of-repair in the country and help irrigate some of our most productive farmland in our state, Daines said.

“The Blackfeet Tribe is excited about today’s news, and while we still have some work to do, this is a very important step toward securing and protecting our water rights,” Blackfeet Chairman Harry Barnes said.

The state of Montana already has already has approved $49 million in state funding that will go towards projects that will ease the impact compact on farmers and ranchers living off the reservation that rely on the same water.

The Blackfeet water rights settlement would:

• Establish the tribe’s water rights in the St. Mary, Milk and Two Medicine rivers and Badger and Birch creeks.

• Give the Blackfeet Tribe the ability to use, lease, contract, or exchange water on tribal land.

• Develop reservation water resources and promote economic development.

• Protect the rights of non-Indian water users. For example, farmers in the Pondera County Canal Reservoir used water from Birch Creek to irrigate 80,000 acres of cropland. The compact includes funds to overhaul the Four Horns Dam fed by Badger Creek west of Valier. Water would then be piped from that facility to replace water from Birch Creek used by members of the Pondera County Canal and Reservoir Co.

After 20 years of negotiations, a deal was struck between the state of Montana, which represented off-reservation users of the water in the negotiations, and tribal officials. The compact was approved by the Montana Legislature in 2009.

The House needs to act on the compact before the end of the year. If signed by the president, it still needs approval from the Blackfeet Tribe and the Montana Water Court.

Weiner, of the Montana Attorney General’s Office, has testified before Congress twice in favor of the compact on behalf of the state of Montana.

Approval by the Senate is a major step in the process, he said, and the farthest the compact has made in seven years.

The Blackfeet water compact would be the fifth Indian water rights settlement between tribes and the state of Montana approved by the United States.

In terms of funding, it would be the second largest, Weiner said. A settlement with the Crow Tribe included a $460 million allocation.

The state’s goal in the negotiations with Montana Indian tribes is recognizing the legitimate water rights of Montana tribes in a manner that protects existing water users to the greatest extent possible, Weiner said.

“We believe the Blackfeet water compact accomplished that goal and deserves strong support,” he said.