THE SECRETARY OF THE INTERIOR
WASHINGTON

 

NOV 1 8 2019

The Honorable Steve Daines
United States Senate
Washington, DC 20510

Dear Senator Daines:

have received your correspondence regarding the proposed settlement of the reserved water
right claims of the Confederated Salish and Kootenai Tribes (CSKT or Tribes). Although I did
not participate in the negotiation of this proposed settlement, I have evaluated the matter. In
sharing my perspective, it may be useful to know that I have been involved with the negotiation
and approval of other water rights settlements over the last two and a half decades.

I understand that following nearly a decade of negotiations, negotiators for the Tribes, the State
of Montana (State), and the United States submitted to their respective principals a proposed
settlement of the Tribes? reserved water right claims known as the CSKT Water Rights Compact
or CSKT Compact. The Compact, approved by the Montana legislature in 2015, is currently
proceeding through the appropriate Federal review and approval processes.

As a general policy matter, for more than 30 years, the United States has supported resolving
Indian reserved water right claims through negotiations rather than protracted and divisive
litigation. 1 am informed that during the course of negotiating and reviewing the CSKT
Compact, concerns and objections were raised about whether proposed Compact terms
appropriately resolved the Tribes? claims and about the perceived impacts that the Compact
could have on non-Indian water right holders. These concerns are important, and it is my
understanding that these concerns were considered and evaluated during the negotiations, in the
context of potential risks and liabilities resulting from non-settlement.

Given your commitment to resolving longstanding issues and avoiding needless litigation, you
have asked for the Department of the Interior?s (Department) views on these concerns. I would
like to provide our perspective at this time on how I understand that these concerns have been
addressed.

A. Background on the CSKT Reserved Water Right Claims

Historically, the Federal Government, when called upon to ?le reserved water right claims as
trustee for a Tribe and its members, ?les claims that it determines are legally justi?ed under
Federal law, including under the Tribe?s treaty or other documents creating the Tribe?s
reservation, and that are consistent with State and Federal court decisions interpreting the
Winters reserved water rights doctrine. These initial ?lings by the United States tend to be broad
in scope, based on credible claims that can be supported with competent expert testimony.

In 2015, using this framework, the United States and CSKT ?led in the Montana Water Court
several categories of reserved right claims, including these that relate to the concerns discussed
below:

0 Instream ?ows to support the fisheries, both on- and off-Reservation, based on language
in the CSKT Hellgate Treaty expressly reserving Tribal fishing rights.

0 The irrigation water supply for the Bureau of Indian Affairs (BIA) Flathead Indian
Irrigation Project (FIIP or Project) to serve all lands within the Project, both Indian and
non-Indian.

0 Future irrigation water for the CSKT, consistent with US. Supreme Court precedent.

When parties propose settlement of a Tribe?s reserved claims, the United States traditionally
evaluates the agreement from various perspectives, including:

0 Does the proposed settlement secure adequate Tribal water resources to meet the
purposes of the reservation?

Are the Tribe?s water rights legally protected and enforceable?

Would the settlement resolve all of the Tribe?s resented water right claims?

0 If a BIA irrigation project is involved, are the water rights for the project properly
resolved?

0 Are proposals to address how water rights on the reservation would be administered and
enforced acceptable?

B. Discussion of CSKT Compact Concerns

It is my understanding that the primary concerns about the Compact raised to date tend to fall
into three main themes:

0 Objections to the inclusion of reserved rights for off-Reservation instream ?ows.

0 Objections to how the Compact resolves the water rights for FIIP in conjunction with the
CSKT reserved rights for on-Reservation instream ?ows.

0 Assertions that the Compact?s approach to administering and enforcing water rights on
the Reservation is unconstitutional, primarily under Montana law.

I address each of these three themes below.
1. Reserved Rights for Off-Reservation Flows

Concerns have been raised about whether there is a legal basis for the off-Reservation ?ow rights
CSKT would obtain under the Compact. These concerns are understandable. Although there is
extensive experience with reserved off-reservation ?ow claims elsewhere in the Northwest,
fewer such claims have been addressed in Montana. That said, similar claims were confirmed in
the legislation approving the Blackfeet Water Rights Compact. The CSKT Compact, however, is
the ?rst time that claims based on a treaty reserving off?Reservation fishing rights have been
addressed in Montana.

The United States and CSKT ?led off-Reservation reserved instream flow claims premised on
the Hellgate Treaty and its promise in article that Tribal members may ?sh off the
Reservation at ?all usual and accustomed places, in common with citizens of the Territory.?
These claims are intended to protect Tribal members? ability to ?sh in the rivers and streams
where Tribal members ?shed at the time of the Treaty in order to provide a meaningful ?shery.
This language is virtually the same as clauses found in several Indian treaties in the Paci?c
Northwest known as ?Stevens Treaties,? which were negotiated in 1854-55 with Washington
Territory Governor Isaac Stevens. Generally, the legal premise is that in the Stevens Treaties,
when Tribes expressly reserved off-Reservation ?shing rights, they impliedly reserved the water
rights necessary to support the ?shing purpose. This theory follows the holdings in Winters and
inans that Tribes may reserve aboriginal rights when entering into treaties establishing
reservations. (See Winters v. United States, 207 US. 564 (1908); United States v. Winans. 198
us. 371 (1905).)

To illustrate, Federal and State courts have considered the water rights of the Yakama Nation, a
Stevens Treaty Tribe with treaty language equivalent to the Hellgate Treaty language. Federal
courts have ordered that water be released from a Federal reservoir to protect spawning ?ows
needed to support the Yakama Nation?s off?Reservation ?shing right more than 50 miles
upstream of the Yakama Reservation. (Kittitas Reclamation District v. Sunnyside Valley
Irrigation District, 763 F.2d 1032, 1033-35 (9th Cir. 1985).) Washington trial and appellate
State courts also have made extensive rulings ?nding and clarifying the Nation?s rights to off-
Reservation ?ows for ?sheries throughout the Yakima River basin. The Yakama Nation?s
adjudicated water rights extend throughout the Yakima basin, even though the Reservation only
occupies the southwestern portion of the basin. Further, courts have found that these rights have
a priority date of time immemorial.

Another illustrative case is United States v. Adair, where the Federal courts concluded that the
Klamath Tribes? treaty recognized the Tribes? aboriginal title in the reservation lands and natural
resources and con?rmed to the Tribes ?a continued water right to support its hunting and ?shing
lifestyle on the Klamath Reservation.? (723 F.2d. 1394, 1413-14 (9th Cir. 1984).) These courts
held that the Klamath Tribes therefore enjoyed water rights suf?cient to support their treaty
?shing, hunting, and gathering rights with a ?time immemorial? priority. The Adair decision
also de?ned how to quantify the Klamath Tribes? instream rights, recognizing the Tribes? water
right included the right to prevent other appropriators from depleting the streams? waters below a
protected level in any area where the non-consumptive right applies. Subsequently, Phase I of
the State ofOregon?s Klamath Basin Adjudication resulted in a Final Order of Determination
issued in 2013 that quanti?ed the Tribes? instream ?ow right.

The Department determined that the case law, the history of the Tribes, and the Hellgate Treaty
supported off-Reservation ?ow claims for CSKT in the Montana adjudication. It found that it
was appropriate to address these claims as part of the Compact. These reserved rights are Tribal
property rights, but they do not provide for Tribal jurisdiction off the Reservation. Resolution of
the Nez Perce Tribe?s reserved water right claims for ?ows in the Snake River Basin
Adjudication in Idaho does not change our conclusion. In that case, a State trial judge found the
Nez Perce Tribe (which has a Stevens Treaty) was not entitled to off?Reservation instream ?ows.
However, the State trial court?s decision is not binding, and, in any event, the Tribe agreed in

that litigation to settle its off-Reservation flow claims for extensive instream ?ow protections
under State law that they can enforce. As with the CSKT claims, the Federal Government found
these settlement proposals to be an appropriate resolution to the Indian reserved claims at issue.

2. Resolution of the Water Rights for FIIP in Conjunction with the CSKT Reserved Rights
for On-Reservation Instream Flows

I understand that a central concern is that the Compact may deprive water users served by FIIP
of their entitlements to Project water. In fact, it appears that one of the most contentious issues
during the negotiation was how to address the FIIP irrigation water right claims. Further,
because the FIIP water rights and the Tribes? on-Reservation reserved ?ow rights often compete
for the same water supply, addressing in tandem these two rights was critical for reaching a
successful settlement.

The United States ?led comprehensive water right claims for the entire FIIP irrigation water
supply to serve all lands in the project, both Indian and non-Indian. It appears that one of the
Department?s primary goals during the negotiations was to preserve the historical irrigation
water use on lands served by FIIP. This position comports with the Federal Government?s past
practice in general stream adjudications to claim the entire water supply of Federal irrigation
projects. Also, as detailed below, Federal courts have con?rmed the Tribes? entitlement to
cit-Reservation reserved instream ?ow right and these rights have a priority date of time
immemorial and thus are senior to the FIIP water rights. (See Joint Board of Control v. United
States, 832 F.2d 1127 (9th Cir. 1987); Joint Bd. of Control of the Flathead, Mission Jocko
Irrigation Dists. v. United States, 862 F.2d 195 (9th Cir. 1988).) The Federal courts left to the
Montana Water Court the job of quantifying the amount of ?ow required to satisfy these rights;
if these claims cannot be settled, the Water Court will proceed with that task.

Concerns remain that the Compact would permanently reduce the FIIP water supply. I
understand that this concern was a central one in the negotiations, and the Compact protects the
net IIP water supplies needed to irrigate crops. Tribal, State and Federal negotiators employed
technical studies to determine that historical net irrigation supplies could be maintained and
protected while project improvements were made to save water for instream ?ows. To this end,
diversions under the Compact initially remain the same as historical amounts. As FIIP
improvements and water conservation measures are implemented, the saved water is left
instream to help meet ?ow rights. In turn, IIP diversions would be reduced by a commensurate
amount while ensuring that net crop demands continue to be met. As a safeguard, the Compact
provides that, during implementation, irrigation diversions ?shall be evaluated to ensure their
adequacy to meet Historic Farm Deliveries.? (Compact, Article If water in excess of
those deliveries is needed, it will be provided by increasing water pumped from Flathead Lake.
(Compact, Article IV.D.1.e.ii.)

There are additional terms that would further safeguard FIIP water use. The CSKT and the State
committed in the Compact to seek Federal legislation to provide funds from power revenues on
the Reservation to improve FIIP operations and water supplies. (Compact, Article IV.H.3.)
They also agreed to several provisions in the Compact that protect the FIIP water supply in times
of shortage, including sharing between instream ?ows and irrigation diversions. In dry years

when ?water supplies are inadequate to simultaneously satisfy? instream ?ows and irrigation
diversions, the Compact sets out several measures that can be taken to augment irrigation water.
(Compact, Article IV.E.1.3.)

The negotiators also addressed assertions that the Compact takes legal title to the FIIP water
rights away from landowners served by FIIP and places it with CSKT. There is little precedent,
however, supporting third-party party claims to legal title to BIA project water rights held in trust
for Tribes. In contrast, Indian settlements in Montana and Idaho placed title to BIA irrigation
project water rights in the name of the United States in trust for the Tribe, even for BIA projects
that serve both Indian and non?Indian irrigators on a reservation. We also note that Washington
State courts adjudicated the water rights for the BIA irrigation project on the Yakama
Reservation, which serves extensive non-Indian lands, to be properly held by the United States in
trust for the Yakama Nation.

However, the Department also recognizes that all landowners served by a BIA irrigation project,
whether Indian or non-Indian, are entitled to continue to receive project irrigation water to the
extent the water is physically and legally available and assessments have been paid. The CSKT
Compact includes protections for FIIP water users? entitlements to Project water. (See Compact,
Article (expansive de?nition service area); Compact, Article IV.D.2
(recognition of entitlement through a ?delivery entitlement 

Finally, I note the obvious risks that FIIP water users would face if the quanti?cation of 
on-Reservation instream ?ow rights cannot be settled. As noted above, Federal courts in the
1980s recognized entitlement to on?Reservation instream ?ow rights throughout the
Reservation with a time-immemorial priority date that is senior to FIIP. Under this legal
precedent, water would not be shared between FIIP and the instream ?ows; rather, instream
?ows would be met ?rst to the full extent of their legal entitlement. The one question that the
Federal courts left for the Montana courts was the quanti?cation of on-Reservation ?ow
rights. Currently, Federal claims seek instream ?ow rights for the majority of water even in
wetter years; if the courts were to con?rm this claim, water for FIIP diversions would be
available only in the wetter years and only to the extent not needed to meet the instream ?ow
right. Even if the Water Court were to quantify the right at a lower median range, the
Department?s assessments show a likelihood that insuf?cient water will remain for viable IIP
irrigation diversions. Some objectors to the Compact argue that the ?interim instream ?ows?
established by BIA in the late 19803 should be the permanent quanti?cation of the Tribes? flow
rights. In my view, this position faces signi?cant risk because the interim ?ows are not
quanti?ed and they do not appear biologically suf?cient. The Compact, in contrast, ensures
water for IIP that otherwise might not be available if these claims were litigated.

For these reasons, the Department concluded that the Compact would appropriately resolve both
the FIIP irrigation and the CSKT ?ow rights.

3. Administration of Water Rights on the Flathead Reservation under the Compact

Concerns have been raised about the Compact?s terms for on?Reservation administration and
enforcement of water rights after entry of a decree. This is set forth in the ?Unitary

Administration and Management Ordinance? (UMO), and administered by the joint State-Tribal
?Flathead Reservation Water Management Board? (Board) of water rights post-decree. Montana
State government entities are best positioned to respond to assertions that these terms violate the
Montana Constitution. The State??under the auspices of the Montana Reserved Rights
Commission, the Attorney General?s Of?ce, and legal counsel for the Montana legislature~?has
analyzed the matter and concluded that the UMO is constitutional. The Montana Supreme Court
has also con?rmed that the legislature?s approval of the Compact, including the UMO, complied
with State law.

As noted above, it is my experience that, during the entirety of my professional career, the
Federal Government has consistently supported efforts in Tribal water right negotiations to
address how water rights on the reservation will be administered and enforced once a settlement
is reached. In this negotiation, given the vast number of commingled Tribal and non-Tribal
water uses on the Reservation, the parties explored proposals to create a single Tribal-State
administrative body to administer on-Reservation rights, rather than a system of dual
administration by the State and the Tribes. The single administrative body, the Board, consists
of ?ve voting members. CSKT and Montana would each appoint two board members. A ?fth
board member is then to be selected by the four appointees, or, if they cannot agree, alternative
provisions exist for the appointment of the ?fth board member. There are also provisions for
local county commissioners? involvement in the selection of the State representatives.
(Compact, Article IV.I.1.2.) The jurisdiction of the Board is limited to approving new rights,
authorizing changes in use, and enforcing existing rights as set forth by the Compact. (Compact,
Article IV.I.4.)

The Department did an extensive review of the UMO and concluded that, while the
administration of on-Reservation rights through a single management board is novel, the terms of
the Compact establish a workable and appropriate administration regime, provided that the

Board and UMO are authorized by the State legislature, the Tribes, and Congress.

The Department?s review of the UMO focused on whether the UMO properly recognized and
protected the water entitlements of the Tribes and Indian allottees on the Flathead Reservation;
improperly placed the management and administration of the water rights of non-Indian residents
on the Reservation under Tribal jurisdiction; and provided basic due process protections to all
water rights holders. First, with respect to the Federal reserved water rights of the Tribes and
Indian allottees, which fall within Congress? restrictions against alienation and the unique
protections for allottee water rights, the Department concluded that the Board, as governed by
the UMO and the Compact, provided ample protections. Second, the State concluded that the
UMO did not place non-Indian residents on the Reservation under Tribal jurisdiction. The
Department concurs in that conclusion. The Board has been approved by the Montana
legislature (as well as by the Tribes and the United States). Therefore, the Board?s activities with
regard to non-Indians constitute an exercise of State jurisdiction.

Finally, the UMO accords those appearing before the Board the same substantive standards and
procedures available to others in the State. The Compact makes clear that the Board lacks the
authority to amend the UMO, preventing changes to these procedures. (Compact, Article IVJ.)
(?No amendment by the Tribes or the State of the Law of Administration shall be effective

unless and until the other makes an analogous amendment?) The Compact further provides the
opportunity for judicial review of decisions made by the Board in a court of competent
jurisdiction. (Compact, Article IV.I.6.) Although parties may argue whether that review lies in
State or Federal court, nothing in the Compact extends Tribal courtjurisdiction over non?Indian
water rights holders. The Department ultimately agreed with the State?s conclusion that the
UMO procedures that govern the Board in conjunction with the opportunity to seek judicial
review of the Board?s decision protect the due process rights of both non?Indian and Indian water
rights holders.

C. Conclusion

Through its negotiation team, the Federal Government actively participated in the CSKT
reserved water right negotiations. Once negotiations were completed, the Federal team brought
the proposed CSKT Compact to the Interior and Justice Departments for review and
consideration whether to support the Compact. The Department of the Interior has evaluated the
core concerns and criticisms that have been raised with respect to the Compact and found that
these concerns were addressed in the negotiations.

I look forward to working with you as you work to resolve this important issue in Congress.
cerely, 



.I I

Secretary of the nterlor