Second in a two-part series on tribal water rights. Read part one here.
BLACKFEET RESERVATION, Mont. — The sapphire waters of Lower St. Mary Lake sit in the shadow of Glacier National Park’s Rocky Mountain front, a world away from Washington, D.C.
But a legal deal that many here hope will end a long-running battle over water rights between the Blackfeet tribe and its downstream neighbors will have to be approved on Capitol Hill.
And it’s anybody’s guess whether Congress is ready for it.
Even as historic drought, booming populations and energy development make water an ever more contentious resource in the West, people on the ground are finding that agreement is possible.
From Arizona to Idaho, tribes, farmers, states and federal agencies are making headway on deals that would clear up long-running disputes over the claims to waterways while resolving tribes’ disputes with the federal government for failing to protect their rights.
The settlements, experts say, amount to long-term plans for sharing water in some of the country’s most contentious river basins.
But because those deals affect tribal rights and other federal interests, including cash, the settlements need congressional approval — something that has become a major hurdle.
Congress has not approved a significant tribal water rights settlement in five years, even as negotiating teams across the country continue to make progress on the ground. And lawmakers just left Washington without acting on a hard-fought deal among tribes, irrigators, power producers and the federal government in Oregon’s battle-prone Klamath River Basin. Without legislative action, the deal is set to unravel at year’s end.
Here in Montana, 20 years of negotiations culminated in a compact determining rights to headwaters drainages across the 1.5-million-acre Blackfeet reservation in 2007. The stakes were high; those same waters flow downstream to farm fields across north-central Montana and Canada’s breadbasket region, and are subject to an international treaty.
It’s nobody’s perfect deal, but many of the key players have come to see it as the best they can get. It was approved overwhelmingly by the Montana Legislature in April 2009.
Now, moving the settlement forward through Congress is a top priority for the tribe’s new political leadership.
Tyson Running Wolf, a first-term Blackfeet Tribal Business Council member who has put a focus on environmental issues, said he sees the settlement as a means of shoring up the tribe’s aging infrastructure and spurring economic development on the reservation, whose unemployment rate is 69 percent.
Most importantly, he said, the negotiations gave the tribe a say in a big decision that will shape its future. The Blackfeet tribe’s history is littered with unilateral federal decisions that have left raw wounds among its members, including the construction of one of the first Bureau of Reclamation projects in the country, built on the reservation without the tribe’s permission. The project sucks huge quantities of water off the reservation to downstream users through a pair of massive flumes with no benefit to the tribe.
"This is what all Blackfeet want — to be sitting at the table when these decisions are made, and their voice heard," Running Wolf said, dressed in neat jeans, a plaid shirt and a Pearl Jam baseball cap, during an interview in his office at the council’s headquarters this fall. "We was never ever able to sit at the table and say, ‘OK, this is what we want.’ This is the first time, with our own water compact, to say it."
Now, with the deal’s final details being ironed out, the Blackfeet settlement could become a test case for a new approach to water rights settlements laid out by leaders in the U.S. House of Representatives.
‘This stuff’s not easy’
It goes without saying that anything with a price tag is a tough ask in Congress.
Tribal water rights settlements are rarely cheap, since the deals usually hinge on providing infrastructure and other economic development to tribes in exchange for waiving claims against the government.
Explaining to lawmakers from other regions why they should foot that bill — and what they risk if they refuse to pay — has been an uphill battle from the beginning. And it’s harder now with fiscal conservatives dominating the House, say lawyers and lobbyists who have pushed for such deals.
But the thing that really halted congressional work on water rights settlements was the ban on earmarks.
Supporters of such settlements have long argued that the deals don’t fit the definition of an earmark, since they address federal responsibilities — and liabilities — related to tribes. House leaders agreed, insiders say, but no one could figure out how to formalize that without writing an explicit exception to the earmark ban, something leaders were loath to do.
"On a couple of occasions in the last few years, I’ve been in a room where tribal leaders brought this up to [then] Speaker [John] Boehner, where he said, ‘I thought we fixed that. Don’t worry, we’ll get it fixed,’" recalled Stratton Edwards, a former staffer for Rep. Tom Cole (R-Okla.) who now lobbies on tribal issues. "But nobody knew how to do that."
When Rep. Rob Bishop (R-Utah) took the reins of the Natural Resources Committee last year, he and a longtime committee staffer decided to confront the issue head-on.
In a February letter to the departments of Justice and the Interior, Bishop laid out a road map for how his committee could advance such deals in the future.
First, the administration would have to forward the settlement to Congress so it wouldn’t look like a lawmaker’s parochial interest. Then the departments would have to explicitly state that the federal funding required under the agreement would be a better deal for the federal taxpayer than what it was likely to owe in litigation. The road map also names a handful of other requirements: for instance, having all parties sign onto the text before it comes to Congress.
The letter sparked a firestorm among Western water lawyers.
Some argue Bishop’s plan is impossible. The Interior Department can be a fickle player in negotiations, representing not just tribes’ interests as their trustee, but also fish and wildlife, parks, and its own budget. It would never be able to get so formally behind a deal, critics argued. And even if Interior did, requiring the Department of Justice to affirm a deal was good for taxpayers would be tantamount to admitting legal liability, they said, something no lawyer would agree to do.
But others argued that the Bishop letter imposed no truly new requirements — but only frontloaded the ones that had always existed.
Kiel Weaver, staff director for the House Natural Resources Committee’s water and power subcommittee, made his pitch to tribes and water experts at a conference on settlements hosted by the Western States Water Council and the Native American Rights Fund in Reno, Nev., in August.
The idea behind the letter, he said, was to help show a lawmaker from a state like Ohio why his or her constituents had a stake in settlements. But Weaver said the committee was prepared to be flexible with some of the requirements when it had to.
"It’s a give-and-take process. It’s not going to be set in stone in the immediate," he said. "We’re going to have to work together on this."
At the end of the day, there is little choice in the matter.
"Bottom line is, this stuff’s not easy; it never has been easy," Weaver said. "You can either approve of the process now, which is zero — zero funding bills whatsoever — or you can hopefully work with us, and we can go through a process that opens the door to getting these things done."
Now everyone is waiting to see what happens next.
"How will we know if this new process works?" Edwards asked. "We’ll know if it works if we pass a settlement."
A proactive approach
Montana decided 40 years ago that it needed to get serious about water.
By the 1970s, industries were starting to float water-intensive development proposals, and Western states were already locked in legal battles over rights to rivers.
"The Montana state Legislature decided we needed to have a statewide adjudication of water, that we will never be able to fight successfully in interstate adjudications unless we get a handle on what the hell the water rights are," said Jay Weiner, Montana’s assistant attorney general.
But lawmakers decided that federal water rights for tribes and national parks, which are legally different from the state-based rights of farmers and towns, needed to be dealt with separately. For that process, they created a Reserved Water Rights Compact Commission.
For the past 36 years, the commission has been methodically negotiating water rights settlements with the seven tribes with reservations in the state. The commission represents the state’s interests, as well as users who hold state-based rights, in negotiations with the tribes and the federal government.
For the Blackfeet, it was years of on-again, off-again talks, as both sides struggled with how much they could trust each other and whether settling would be in their best interest.
Ultimately, they reached a deal that kept the treaty governing water-sharing with Canada intact and largely protected users along the Bureau of Reclamation project shuttling water from these headwaters to farms across north-central Montana.
To be sure, the final deal doesn’t make everyone happy, especially some farmers near the reservation who would see their supplies cut under the deal and fear that help from the state and federal governments to deal with the impacts will not come to fruition.
"We were bullied into this — beat into it — and we fought it, fought it, fought it, and this is the best we’re going to do," said Bob Sill, a farmer in Valier whose family worked land in the region for over a century.
Not all tribal leaders are on board, either.
"Who is going to benefit from this, truly?" asked Cheryl Lynn Little Dog, a member of the Blackfeet Tribal Business Council. "The government can turn around, like every treaty they’ve ever broken, and say, ‘No, we own that land. We paid you.’"
But enough key players back the deal to get Montana’s U.S. senators on board.
Democrat Jon Tester and Republican Steve Daines introduced S. 1125, the "Blackfeet Water Rights Settlement Act of 2015," last spring to authorize the deal. It’s the third such effort since the Montana Legislature approved the compact in 2009, and the federal price tag has shrunk considerably since then, from close to $600 million to closer to $400 million now, in a bid to make it more palatable to Congress.
But whether the measure is any more likely to move this go-round remains to be seen. Things looked promising earlier this month when it was slated for a markup before the Senate Indian Affairs Committee, but the bill got pulled at the last minute amid lingering concerns from Interior — whose sign-off is now even more important thanks to the House process.
"We’re hopeful that the issues will be resolved," Tester spokeswoman Marnee Banks said. "We do expect that it should be on a markup in the first part of the year, most likely in January."
But it will take more than a markup to convince water experts that the Blackfeet compact can reach the finish line after the Klamath deal succumbed to partisan battles at the end of this session.
To be sure, some especially controversial aspects of the Klamath settlement make it an imperfect barometer for Congress’ overall appetite. But the way the congressional efforts fell apart left many in the water world wondering how serious Bishop and other key lawmakers really are about advancing settlements.
Moreover, the Blackfeet tribe is likely to need flexibility from the House Natural Resources Committee. Part of its compact requires legislation to come back to tribal members for a vote before the deal is official — a politically crucial final say for the tribe, but one that doesn’t fit within the new House road map.
In Browning, Mont., the politics are personal.
This beat-up town on the wind-swept plains, just before they give way to the Rocky Mountains, is the seat of the Blackfeet reservation.
The Glacier Peaks Casino is the most popular spot in town. Its parking lot is packed with battered cars whose bumpers are barely hanging on and ancient pickup trucks with plywood planks shoring up their rusty beds’ metal sides.
These belong to the lucky people who have transportation. The unlucky spend their days at the Exxon gasoline station’s convenience store a couple of blocks down the road, hoping to panhandle from tourists stopping for fuel or food on their way to Glacier National Park.
The Blackfeet Tribe got here — high unemployment and elevated rates of substance abuse and attempted suicide — the way so much of Indian Country did. A reservation that once spanned most of northern Montana was eaten away at by subsequent treaties and acts of Congress, divided up and sold against members’ wishes. Language and cultural ways were lost as children were sent off to boarding schools where assimilation was the goal.
But deep in the bones of many tribal members is a belief that they belong to this place.
Water is the source of creation to the Blackfeet people, and aquatic creatures like the beaver hold a special significance in religious ceremonies.
"Inherently, in the ancestral memory of our people, they know that we were placed here with the clean water for a reason," said Carol Murray, provost of the Blackfeet Community College. "We know Creator put us here because of our ability to stand up for what we believe in."
This place is the tribe’s pride and joy. But to farmers, it’s not much to look at.
The boundary between the reservation and neighboring lands is obvious: Beyond the reservation are dark-green irrigated fields that produce cash crops like wheat, hay and alfalfa; inside is mostly brown rangeland good for little more than grazing cattle.
Jerry Lunak, the tribe’s water resources director, hopes to change that.
Agriculture is Montana’s top industry, and it’s the only thing that can realistically bring the reservation the jobs and income that are so desperately needed, he figures.
But for that, the tribe needs water.
Lunak, who has been spearheading the tribe’s efforts on the water compact in recent years, grew up on the reservation before being sent to boarding school at age 7, and has lived much of his 60 years in the area. Today, he and his family live in Havre, Mont., but he has decided the job is worth the 2-½-hour drive between there and the reservation.
"I’ve had this inherent desire to help this place, to do what I can," said Lunak, who has also spent time as a rancher, a bronco rider and a U.S. Department of Agriculture outreach specialist. "So I’ve sort of scrambled my way into places where I can make a difference."
Looking out on Lower St. Mary Lake, the headwaters of the workhorse St. Mary River, Lunak pondered the choices Blackfeet elders made in selecting this land as their homeland when they signed their first treaty with the United States in 1855.
"We could fix ourselves with this — if we get this allocation and put our minds to work," he said, looking down on the clear glacial melt. "It must be why those old guys picked this spot for us."