The Future of Indian and Federal Reserved Water Rights: The Winters Centennial

11: The Fort Belknap: Water Compact

221 One hundred years after the U.S. Supreme Court issued an injunction against upstream diversions that prevented water from reaching the Fort Belknap Reservation, the tribes of Fort Belknap are closing in on a settlement protecting all of their reserved water rights. Woldezion Mesghinna is a long-time consultant for the tribes. John Allen has been a member of their Water Committee, which participates in water negotiations. Chris Tweeten has chaired the Montana Reserved Water Rights Compact Commission throughout negotiations among the tribes, the United States, and the State of Montana. Note that the Montana legislature used the term compact in legislation setting up the process for settlement of reserved water rights. Thus in the following talks, compact is synonymous with settlement.  Woldezion Mesghinna My presentation is going to be on the Fort Belknap Reservation. The main discussion was about the Winters decision of 1908. Now it is one hundred years after 1908, to 2008. Hopefully, the water rights of the Fort Belknap Tribes will be completed in 2008, after one hundred years. So I am going to present and provide you with the quantifications that have been agreed upon between the tribes and the state and, of course, the federal government. The Fort Belknap Water Compact chapter 11 222 PART III In 1905 there were two primary factors that led to the Winters case—there was an extensive drought in the area, in the Milk River Basin, and non-Indians had been diverting the water completely, especially in the Chinook and Havre area. The federal government went to court on behalf of the tribes, and they received five thousand miner’s inches, which is equivalent to 125 cubic feet per second (cfs). And then in 1906 the appeals court affirmed, and in 1908 it was upheld in the Supreme Court. But the 125 cfs water right for the tribe was only for the lands that were irrigated at that time. In other words, there were more lands that did not receive their water rights, including future lands. Tribes have both present and future water rights. And no future agricultural water use, groundwater, or water from the tributaries of the Milk River were included in the 1908 decision. So the tribes have been talking since the end of the 1980s to settle the remaining water rights. The two choices that they had at that time were, and still remain, litigation and negotiation. And there was intense discussion within the tribal council whether to negotiate or to litigate. If they settled their water rights through negotiation, they could get the full water right of their claim, they would receive their wet water, and there would be administrative enforcement of the water rights. And, of course, once the water rights were determined, then they would have money to build a project. But if they had to go to litigation, most of the time the result is primarily a paper water right as opposed to wet water, with no financial means for delivering water and no definition for administration. And there is uncertainty concerning whether you would win or lose in litigation . So the tribes, after discussion, decided to negotiate their water rights. The negotiations started in 1995, and agreement has been reached on almost everything . The compact has been approved by both the tribal council and the state, but final tribal approval will not come until the tribe’s referendum is passed. Now let me go to the quantifications. The tribes have a 125 cfs water right from the 1908 decision. The new claims are being made from People’s Creek and Beaver Creek, tributaries to the Milk River on the reservation, the Milk River, and tributaries to the Missouri River on the southern portion of the reservation. Between 1996 and mid-2005 the tribes, the state, and the federal government agreed that the tribes would have an additional 520 cfs over and above the 125 cfs from the Milk River. In order to use this water more effectively , the tribes need a reservoir, which is proposed to be an off-stream reservoir . And then in addition to the 520 cfs—that water would be stored in the sixty thousand acre-feet off-stream reservoir—the tribes would get another four thousand acre-feet for nonagricultural water use. 223 The Fort Belknap Water Compact The flow of the Milk River is determined using the average flow, the median flow...