Montana Tribe’s Water Deal Clears Major Senate Milestone

This story was originally published on February 5, 2016 at High Country News.

Seven years ago, Montana legislators approved a water compact with the Blackfeet that was decades in the making. But it took until this week for a Senate committee to approve a bill that could make that deal a reality for the tribe, whose reservation is next to Glacier National Park. It was the first major Indian water settlement to get even this far since 2010. Still, several big hurdles remain before the bill becomes law and money can start flowing to help the tribe use its water resources to invigorate its beleaguered economy.

The delay reflects just how complicated it is to negotiate water settlements, especially when disputes date back more than 100 years and the federal government wears multiple hats in the negotiations. In this case, it represents the interests of the tribe as its trustee, U.S. taxpayers and Canada, because of an international treaty.

Since the Great Recession, Congress has been especially resistant to Indian water settlements because they are expensive and some House Republicans view them as earmarks. Chairman Bishop last year laid out new criteria for Indian water settlements. He requires that the Obama administration supports the deal and testifies that it is in the net benefit of U.S. taxpayers. The Blackfeet settlement likely will be the first major test case.

“You’ve got to be vigilant, but you’ve got to be patient,” Jerry Lunak, who heads up the negotiations for the Blackfeet tribe, told High Country News. “It just has a lot of different moving parts to it. You’ve got politics at every level— tribe politics, state politics, national politics. It takes everybody moving in unison for the thing to progress.”

Senator Jon Tester, D-Mont., commended the tribe’s patience during a meeting of the Senate Indian Affairs Committee on Capitol Hill Wednesday. “They’ve been waiting too long,” said Tester, who is vice chairman of the committee.

Tester and fellow Montana Senator Steve Daines, R, both pledged to find money not needed for other programs to offset the $422 million in federal funding the bill would provide to the tribe to either construct or update its drinking water system, water storage projects, and irrigation infrastructure.

The senators defended the spending, saying it would settle the Blackfeet’s water-related claims against the federal government that date back as much as a century. For example, for 100 years, the Bureau of Reclamation has been diverting water from St. Mary River through a massive set of pipes known as the Milk River Project to irrigate farms across northern Montana and across the border in Canada.

Among other provisions, the settlement would:

• Establish the tribe’s water rights in all six drainages within the reservation, including St. Mary River, Milk River, Cut Bank Creek, Two Medicine River, Badger Creek and Birch Creek.
• Give the Blackfeet Tribe the ability to use, lease, contract, or exchange water on tribal land, and protect the tribe’s water rights from development by others.
• Rehabilitate and upgrade the aging Four Horns Dam and long-neglected, 100-year-old Blackfeet Irrigation Project.

For the Blackfeet, these projects are crucial to providing jobs and revenue on the reservation. About 10,000 of the 17,000 Blackfeet members live on the reservation in northwest corner of the state in the foothills of the Rockies, where unemployment is above 50 percent.

The negotiations on the deal have been taxing. One of the most contentious issues was a plan outlined by the state and the Blackfeet in their compact to construct a new pipeline to divert water from Badger Creek to Birch Creek to increase the water available for farmers in Pondera County, who irrigate tens of thousands of acres of crops. Although the Blackfeet would own the pipeline, the Interior Department was reluctant to embrace the project because it benefits non-Indians. Donald LaVerdure, principal deputy assistant secretary of Indian Affairs suggested the project went against the federal government’s interests both as a trustee for the tribe and a representative of federal taxpayers. He told the Senate committee in a 2011 testimony that “substantial federal outlays that benefit non-Indian water users are not acceptable.”

Under the agreement, the state puts up $35 million towards building the pipeline and compensating the Blackfeet for their water. In exchange, the Blackfeet agree not to use more water from Birch Creek until the pipeline is finished. They also agree deliver the water without addition charge until after the 25th year of the settlement.

“This has been the largest single hang-up,” said Jay Weiner, an assistant attorney general in Montana who has been working on the Blackfeet settlement for 12 years. “We want [the Blackfeet] to use water, but we want to do it in a way that doesn’t displace all the other users that have built up around them.”

The Blackfeet say the project benefits them because they will eventually be able to sell the water. Also, the pipeline is only part of a larger project that involves repairing the dilapidated Four Horns Dam and reservoir and an archaic irrigation system. “With the water, we can use agriculture as a catalyst to develop our economy going forward,” says Lunak, water resources director for the tribe.

But before any of this can happen, the bill needs a vote in the full Senate and the House Resources Committee needs to draft its own version. Tester pledged to lean in to get the settlement through the House but acknowledges that it may not be easy: “We still have a long way to go in order to do right by Blackfeet.”